Legal disputes between the Town of Norman Wells and former Senior Administrative Officer (SAO) Catherine Mallon continued in the Supreme Court of the Northwest Territories over two days in the last week of March.
Mallon, the town’s SAO from 2015 to October 2018, is suing the town, Mayor Frank Pope, former interim SAO Darren Flynn and current SAO Cathy Clarke for defamatory remarks.
In 2019, the town entered a civil suit with Mallon for allegedly defrauding the town of $1.26 million during her tenure as SAO. Mallon is claiming public comments made about her actions in the town’s top role have left her essentially unemployable and is seeking $2.57 million in return.
Lawyer Toby Kruger, representing the three individual defendants, told the court that the story begins when the department of Municipal and Community Affairs (MACA) put the town of Norman Wells under administration in Oct. 2017.
When Flynn took over as SAO he first looked into Mallon’s salary in order to know how much her replacement could expect to earn. He noticed the salary on her T4 slip to be unusually high and requested a forensic audit of the payroll and use of common credit cards.
This would be the start of the fraud case still before the NWT courts.
On May 8, 2018 Pope called a town-hall meeting to notify members of the public of the ensuing lawsuit.
Having taken over Norman Wells’ leadership only months prior, Kruger said transparency and open communication were key to Pope’s commitment to earning the town’s trust.
He said the comments were made under qualified privilege – a legal defence of certain statements made in the public interest – since Pope believed it was his duty to keep constituents informed about the goings on of the town and that they had a right to receive that information from their mayor.
In delivering his address, Pope sought guidance from his lawyer and kept to the vetted speaking notes. MACA deputy minister, Elanor Young fielded questions from community members.
Pope also made court documents for the fraud civil lawsuit available to citizens of Norman Wells so they could inform themselves on the matters of the case. Kruger said this proves a lack of recklessness on the defendant’s part.
“Management of public money by public officials must be qualified privilege,” Kruger said.
He said the same privilege extends to comments Pope made to media outlets as the information is relevant to other members of the Sahtu and NWT.
Mallon rejects ‘privilege’ defence for defamation
Mallon’s representative, Matthew Woodley, rejected the argument that Pope and the Norman Wells councillors felt they had a duty to inform the community “because it is inconsistent with the town’s own actions,” he said.
He argued that the town’s officials only thought it necessary to advise the town of the fraud allegations it was making against Mallon and not of Mallon’s defamation claims on the town.
“There was no effort to inform citizens of the other side,” he said. “If they did have a duty to inform, it is incumbent for them to do so wholly.”
Woodley continued, that if Justice Karan Shaner did choose to accept Kruger’s defence of privilege, it should not extend to Pope’s comments to the media.
He argued that qualified privilege is to protect the spread of information when an audience has a reasonable right to know that information.
Information published online, he said, becomes accessible to the entire world.
“The world at large have no duty to learn about the town’s allegations against Ms. Mallon,” Woodley said.
Woodley also pointed to an email exchange about Mallon between Flynn and the mayor of Iqaluit.
After Mallon applied for another municipal role in Iqaluit, the mayor contacted Flynn to ask if he had any concerns about her work.
Flynn informed her of the forensic audit and said the matters may appear before the courts. He added that the matters “may embarrass whoever hired her.”
Woodley notes that Flynn had never met or worked with Mallon.
Flynn did not make any comments on the financial state of the town or any other result of Mallon’s work, nor did he refer the mayor to a town administrator who had worked with Mallon, Woodley said.
He called the comments “an unnecessary personal attack.”
The recent proceedings were a notice of motion to determine if the defamation claims would become part of the civil lawsuit already before the courts over allegations of fraud.
Though she did not indicate a timeline, Justice Shaner said she would provide a written decision as quickly as possible.