Citizens cannot be sued for information requests, court rules
Making private researcher a defendant in rival company’s case deemed ‘unjust’
An Ottawa man can’t be sued for defamation just because he asked questions in an access-to-information request, a court has ruled.
The decision was immediately welcomed by the Canadian Civil Liberties Association.
Ken Rubin was hired by a company called Advanced Symbolics Inc. (ASI), which was having a commercial dispute with another firm. Rubin is a private researcher with decades of experience in doing access-to-information requests.
Rubin was hired to file requests asking about dealings between the rival firm, Core Insight Strategies Inc. (CSI) and transit authorities in three cities — Ottawa, Durham, and Quebec City.
CSI then asked the Ontario Superior Court of Justice to add Rubin as a defendant in its lawsuit against ASI. The company claimed that Rubin had defamed them — for instance, by asking for any emails discussing “contracts, discounts, benefits, trips, hospitality, entertainment and gifts,” or discussing problems about CSI’s work with ASI.
A master of the court has now ruled that Rubin will not have to defend himself against a defamation claim.
In a nine-page decision, Donald E. Short says that Rubin’s requests for information “do not state or imply that particular conduct took place, they merely request documents that may or may not exist.”
He wrote that making Rubin a defendant in the case would “be unjust given the seriously harmful effects on access to information and freedom of expression,” and would waste the court’s time.
He added: “If those filing requests under access-to-information legislation were faced with the prospect of civil liability simply for making a request, the purpose of access to information legislation would be frustrated, the defences available to a defamation claim would be unduly limited, and the s. 2(b) Charter guarantee of freedom of expression would be impacted.”
This would be “an injustice,” the decision says.
“The purpose of access-to-information legislation would be frustrated if requesters were faced with the possibility of civil liability for filing a request,” it says.
The legislation is an important tool for “journalists and those communicating on matters of public interest,” it adds.
And it says people filing requests cannot be expected to know all the facts before asking what the facts are.
It ends by quoting Rubin’s lawyer’s argument that “the Supreme Court of Canada has repeatedly recognized that freedom of expression is intimately linked to access to information.
“The spectre of civil liability simply for filing freedom of information requests would have serious implications” for freedom of expression.
Rubin said he was notified of the motion to add him as a defendant only weeks before the April hearing. He scrambled to get a lawyer who specializes in defamation.
He said the law already has checks and balances that protect privacy rights during access-to-information requests.
“FOI (freedom of information) is under siege these days with growing secrecy at all levels of government, so this win is a bright spot in an ugly landscape of limiting access rights,” Rubin said.
“It has taken a lot of my time and effort to get to this point and I don’t
FOI (freedom of information) is under siege these days with growing secrecy at all levels of government.
wish it upon anybody else. It has been a source of stress and quite a bit of money and blood, sweat and tears.”
The court awarded Rubin costs. “Had this judgment gone the other way, our concern would be that the ability to make access requests would be profoundly chilled,” said Brenda McPhail, a lawyer with the Canadian Civil Liberties Association.
Her association is already “very concerned with the proliferation of exceptions to the access act,” which make it harder for the public to get information, she said.
“This (case) was sufficiently important that we have been monitoring it from the outset, because it really would have set an appallingly dangerous precedent” if Rubin could be sued for defamation, added McPhail.
At Ryerson University’s Centre for Free Expression, director James Turk welcomed the decision.
He said it’s the only case he knows where someone was threatened with a lawsuit for making an access request.
Allowing people to be sued for filing access requests “would have a chilling effect on fundamental rights to access to information … which is their right under law,” Turk said.
He hopes the ruling “sends a signal that this is not a tactic that is likely to pay off for others.” tspears@postmedia.com twitter.com/TomSpears1