NPCA ordered to pay activist
$131,000 ruling deterrent to government using courts to silence citizens, judge says
The judge who dismissed a defamation lawsuit by Niagara Peninsula Conservation Authority against a St. Catharines activist has ordered the embattled organization to pay Ed Smith more than $130,000 in legal costs.
Justice James Ramsay ruled Friday NPCA’s attempt to sue Smith for $10,000 for defamation was “designed to silence the defendant, who was an annoyance to the authority.” Saying NPCA’s right to sue Smith was “doubtful in law,” Ramsay ordered NPCA and its former CAO and current Niagara Region CAO Carmen D’Angelo to pay Smith $131,076 in legal costs.
NPCA is covering D’Angelo’s costs in the case.
The judge said the award to Smith is made in part to act as a deterrent to prevent the agency from turning to the courts to silence public debate.
Ramsay also ruled that Niagaraon-the-Lake businessman William Montgomery pay Smith $48,172 in costs.
NPCA, jointly with D’Angelo, and Montgomery sued Smith in connection with a report Smith authored in 2016 that alleged NPCA was rife with conflict of interest problems and engaged in other questionable practices. The plaintiffs claimed Smith had defamed them in his report.
In November, Ramsay dismissed the lawsuits against Smith, saying NPCA was an organization “that has had trouble finding its way.”
“I am elated with Justice Ramsay’s decision on the awarding of costs,” Smith said in a statement late Friday. “The justice identifies that the purpose of the lawsuit was to silence me because the NPCA deemed me as an annoyance … In other words, a government agency attempted to intimidate and silence a citizen who was critical of them, and in effect strangle my right to freedom of speech.”
The retired Air Force major said he believes Ramsay’s decision “should resonate in Niagara for a long time, the behaviour displayed by the NPCA cannot be tolerated in Canada.”
NPCA did not respond to multiple interview requests over the weekend.
In November, Ramsay ruled NPCA had failed to demonstrate its case had any merit and said the authority, as a government agency, had no right to sue a citizen for criticizing it.
In the cases of D’Angelo and Montgomery, Ramsay found they failed to show that Smith did not have a valid defence for the content of his report, even where he made mistakes. He found Smith made his allegations without malice and, given the information he had at the time, “had a compelling interest and moral obligation to raise matters that had come to his attention.”
After Smith published his report, NPCA threatened to sue Smith and demanded he apologize and promise not to publish his report again. Ramsay found this was akin to “the opening salvo of a war” and that a reasonable person would not question the accuracy of Smith’s report given the NPCA response.
Expressing disappointment in how NPCA reacted to Smith and his report, Ramsay ruled in November that the authority’s actions ran contrary to the Canadian value of free expression.
“There are many places in the world where I might expect such a thing to happen, but not in our beloved dominion,” he said.
In his Friday ruling awarding Smith legal costs, Ramsay repeated some of his earlier criticism of NPCA, characterizing its reaction to Smith as so “over-the-top” that it “got in the way of an early resolution of the controversy.”
Smith, the judge said, appeared willing to retract parts of his report and in different circumstances “negotiations might have gone further.”
“The defendant cannot be held responsible for their failure,” Ramsay said of NPCA.
NPCA argued it should not have to pay costs because Smith never apologized, his report contained errors and that Smith defamed the organization.
Ramsay, who did not rule Smith defamed NPCA, rejected the agency’s argument along with the NPCA submission that if it did have to pay costs, it should only pay $60,000.
Montgomery, meanwhile, argued that Smith should get nothing.
The precise cost to taxpayers for the NPCA lawsuit against Smith is not known. In November, the authority refused to disclose how much it spent in to bring Smith to court, citing client-attorney privilege.
After Ramsay’s November decision, NPCA claimed the ruling was a moral victory because all it wanted was a ruling that Smith’s report was inaccurate, and it was never interested in the $100,00 claimed in the lawsuit.
Shortly after that decision, NPCA board member Tony Quirk, a regional councillor for Grimsby, tweeted that Ramsay’s ruling was “Trump-like.”
Smith had counter-sued NPCA for $60,000. On Sunday, Smith said in light of Ramsay’s rulings he is in the process of withdrawing that countersuit.