Despite defendant’s incorrect assertions, judge displeased with NPCA’s lawsuit
BY SAMUEL PICCOLO
In a ruling released last Friday, a judge ordered the Niagara Peninsula Conservation Authority to pay its frequent critic Ed Smith $131,076 in legal costs, after the NPCA’s suit against Smith was dismissed by the same judge in November.
Plaintiff William Montgomery, whose suit against Smith was also dismissed, was ordered to pay Smith an additional $48,172.
In November, Judge James Ramsay dismissed lawsuits filed against Smith by the NPCA, its former CAO Carmen D’Angelo (now CAO of Niagara Region), and William Montgomery, of Stream Three Inc.
In 2016 Smith wrote and released a document entitled, “A Call for Accountability at the Niagara Peninsula Conservation Authority,” in which he implied that the NPCA’s foundation had given a fundraising contract to Stream Three Inc. in exchange for a Police Services Board contract awarded to D’Angelo’s company, DPM Consulting.
Smith asserted that the link between these contracts was Regional Councillor Andy Petrowski. Smith further alleged in his report that D’Angelo’s firm did not possess a license to operate in Ontario. Calling these allegations false, both Montgomery and D’Angelo sued Smith for defamation.
Ramsay ruled in November that Smith’s document was in the public interest, and that he had made the allegations without malice. Nevertheless, Ramsay found that Smith’s allegations were based on inaccurate information.
“Andy Petrowski had a previous and publicly known link to Montgomery’s operation, but it was in the past and had nothing to do with with [the NPCA],” said Ramsay.
Ramsay also said that D’Angelo’s business was indeed in possession of an Ontario license, and that Smith’s error stemmed from “an inaccurate listing in an on-line business directory,” and from that fact that Smith was unaware of the registered name of D’Angelo’s business.
Ramsay said that Smith had good reason to believe that Petrowski was significantly associated with Montgomery’s firm—even though this was not the case—and for this reason concluded that Smith displayed “no malice and no recklessness.”
Ramsay was highly critical of the NPCA, a government organization, for launching a lawsuit against a member of the public, and cited this in his dismissal of the suits against Smith.
But Ramsay added, “Obviously, these two contracts were not corruptly swapped. There is not enough of a continuing connection between Petrowski and Montgomery to suspect that one contract was awarded in exchange for the other. But that is in hindsight.”
Ramsay again referenced the hindsight point when ordering the NPCA to pay Smith’s legal bills.
The NPCA had argued that it should not be required to pay Smith because his allegations were based on inaccurate information. Echoing his November ruling, Ramsay did not assign blame to Smith for these inaccuracies, saying that these things were only apparent later.
“I view this as a complete victory,” said Smith. “The judge had several options open to him and he chose to award one hundred percent of the costs associated. In effect on costs he came down as hard as he could on those who chose to sue me. I interpret this as meaning that this type of action—suing citizens who speak critically of their government—will not be tolerated in Canada.”
Grimsby Regional Councillor and NPCA board member Tony Quirk conceded that the $131,076 figure “seems excessive,” but said that, “it is cheaper than a trial and will be absorbed in the 2017 budget.”
“At the end of the day, the Judge ruled on the issues we wanted corrected, that is: there is no corruption at the NPCA,” said Quirk.
Ramsay also blamed the NPCA for the drawn-out legal battle, writing that “the Authority’s over-the-top reaction got in the way of an early resolution of the controversy.”
Ramsay said that it appeared as though Smith was willing to retract part of his report, and said that in “different circumstances negotiations might have gone further.”
Quirk called Ramsay’s suggestion “completely inaccurate.”
“Ed Smith was unwilling to retract his comments and issue a correction to the defamatory statements. All [Smith] was willing to say was that Carmen [D’Angelo] was not the head of an Australian company.”
Regarding this possible negotiation, Smith said, ”Before the NPCA officially started its lawsuit, I offered to issue a statement with respect to the registration of D’Angelo’s company. The NPCA did not accept my offer and launched their lawsuit against me. After they started their lawsuits, my lawyer engaged in settlement discussions, the contents of which are privileged.”
Smith said that his whole entanglement with the NPCA began when he made Freedom of Information requests, to which Smith said the association did not respond with the appropriate transparency.
Pelham Regional Councillor and NPCA board member Brian Baty said that the dispute was not about an individual asking questions or expressing concerns.
“I am grateful that the Court finally corrected the record by confirming that Mr. Smith’s claims were false,” said Baty.
“Had Mr. Smith’s original document been corrected to remove these falsehoods, there would have been no case, and therefore no associated costs.”
Baty said that the NPCA’s contact with Ontario’s Auditor General, who is currently reviewing the authority, has been positive. “We ended 2017 by receiving a comprehensive report on the implementation of our first strategic plan and received positive feedback on the significant and positive changes introduced in the last four years,” said Baty.
“We had a positive meeting with the Auditor General and her audit team, and embrace her audit process to clear the air on all aspects of our organization.”