City funds bureaucrat’s libel suit against Toronto newspaper

The city of Toronto has agreed to fund a senior bureaucrat’s libel suit against the Toronto Star over stories questioning the effectiveness of the city’s green bin program.

The case raises compelling issues about whether a senior civil servant’s reputation is damaged if public policy comes under fire, given that municipalities cannot sue for defamation, as well as when it is appropriate for taxpayers to bankroll lawsuits. It comes just weeks after Toronto councillors decided against becoming the first municipality in Canada to enact a policy allowing elected officials to sue on the taxpayer tab.

Councillor Denzil Minnan-Wong (Don Valley East), who has long asked questions about the city’s waste diversion rates, said yesterday he fears the suit could stifle legitimate questions.

"This is a public policy debate and a political debate and that debate should properly take place in council and at City Hall and within the public domain," he said. "The implication is that if you criticize the city or programs within the city it would be allowed for the bureaucracy to hire a lawyer at the taxpayers’ expense to sue whoever wrote the article."

Geoff Rathbone, general manager of solid waste, argued in a statement of claim that his reputation was harmed by the newspaper’s investigation into whether Toronto diverts as much organic material from landfill sites as it claims. He is seeking a retraction.

"Mr. Rathbone has dedicated his entire career — over 28 years — to environmental recycling and waste diversion," his libel notice states.

"He has a high reputation in his profession for integrity and competence. Your newspaper’s allegation that he has engaged in intentional deception of the public is irresponsible and profoundly damaging."

Neither Mr. Rathbone nor his lawyer returned calls seeking comment.

A 2005 city policy allows reimbursement or advances for legal bills up to $25,000 with the approval of the deputy city manager and chief financial officer, in consultation with the city solicitor. Indemnification of additional expenses would go to council, said city spokeswoman Patricia Trott, adding the aggrieved party can choose their own counsel so long as the costs are deemed "reasonable."

But Ms. Trott said use of the policy to file a defamation suit is "not common."

Councillor Doug Holyday (Etobicoke Centre), said he would never want to leave a manager "in the lurch," but he has concerns whenever the city turns to the courts.

"If you’re dealing with two entities with deep pockets, it could go on an enormously long time," he said. "Going to court is always an expensive matter. It’s always hit and miss. You never know what the outcome is going to be or how much it is going to cost."

Mr. Holyday said the city should exhaust all remedies at its disposal before approving a lawsuit. Mr. Rathbone has retained Peter Downard, a seasoned lawyer who represented former premier Mike Harris at the Ipperwash Inquiry and won one of the largest defamation settlements in Ontario from the Star earlier this year, according to his firm’s website.

The Toronto Star indicated it will vigorously defend its coverage. "We stand by our stories but we don’t comment on legal action," Bob Hepburn, a spokesman for the newspaper, said yesterday.

The paper posted Mr. Rathbone’s lawsuit online, along with a new story about the organics program "gleaned from a letter sent to the Star in libel proceedings."

Toronto libel lawyer David Potts called posting the lawsuit on the Web "different," but said the case itself will not break new legal ground.

De fining defamation broadly as "a false statement to a person’s discredit," Mr. Potts said there have are "numerous cases where civil servants have sued over allegations reflecting on them."

Also, he said the courts have established the basis for publicly funded defamation suits.

"The question is going to be, ‘Is this attack on him personally’ or ‘Is this really a statement about policy?’ " said Mr. Potts, suggesting the newspaper will use the public interest defence.

"That’s going to be one of the central questions in the lawsuit.”