Casual Legal: Councillor liability for defamatory statements

By Andrew Skeith
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

Section 535 of the Municipal Government Act (MGA) provides elected officials (as well as employees of a municipality) with protection from liability for any loss or damage arising from the performance of their duties in their capacity as councillor, as long as those duties are carried out in good faith.

Yet section 535 specifically does not function as a defence against defamation claims against Councillors. If a Councillor makes a defamatory statement about a third party, they can be sued personally and held liable for that statement.

However, even if a Councillor is sued for defamation, their statements may be protected by the defence of qualified privilege. Even if a statement is otherwise defamatory, the Councillor will not be held liable for the statement if it is found to be made on a “privileged” occasion, except where the Councillor made the statement maliciously or with an intent to harm the subject of the statement.

The defence of qualified privilege generally applies to all statements made by Councillors during a council meeting. That means that, even if a Councillor makes a defamatory statement about another individual during a council meeting, they would not be held liable unless the statement was made maliciously.

If a Councillor makes a defamatory statement about an individual outside of a council meeting, it will only be protected by qualified privilege if the statement was made on a “privileged” occasion. That has generally been interpreted to mean, in the context of Councillors, where the Councillor has made the defamatory statement while carrying out their duties of office, and where the statement is related to a matter of public interest.

While Councillors do have the benefit of the defence of qualified privilege against most potential claims in defamation, it is best to avoid making statements that are clearly defamatory to avoid the costs, stress, and expense of litigation. There is always the risk that the Plaintiff proves that a statement was made maliciously, and if that occurs, the Councillor will be held personally liable for the damage to the individual’s reputation arising from the defamatory statement.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.