Court File No. CV-10-411851
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GEORGE FOULIDIS Plaintiff
- and -
ROBERT FORD Defendant
WRITTEN ARGUMENT ON BEHALF OF THE PLAINTIFF
Date: November 19, 2012
RUBY SHILLER CHAN HASAN Barristers 11 Prince Arthur Toronto ON, M5R 1B2
Brian G. Shiller LSUC #: 34470G Tel: (416) 964-9664 Fax: (416) 964-8305 Email: [email protected]
Lawyers for the Plaintiff
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PART I: OVERVIEW OF THE CASE
1. The plaintiff George Foulidis asks this court to award him damages against Mr. Ford for published statements by Mr. Ford in a Toronto Sun newspaper article on August 12, 2012 (the “Article”).
2. In August 2010 Mr. Ford was a long-time politician and a candidate in a hotly contested mayoral race. Mr. Ford ran on a platform of “cleaning up City Hall” and cutting waste by “stopping the gravy train”.
3. George Foulidis is a small business owner. He has operated the Boardwalk Café with his family since the late 1980s, pursuant to a lease between the City of Toronto and Mr. Foulidis’ corporation Tuggs Inc. (“Tuggs”). From 2006 to 2010 Mr. Foulidis negotiated with the City of Toronto, using the only process available to him, for a lease renewal which included new terms of agreement. The lease was signed on June 2, 2010.
4. After the Article was published, Mr. Ford was served with a Notice of Libel on September 16, 2010 in compliance with s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L, placing Mr. Ford on notice that a claim would be commenced against him in relation to the Defamatory Words. An apology was sought but never received.
5. It is respectfully submitted that by any objective view of the evidence and an assessment of that evidence in light of the governing principles related to whether the words complained of were defamatory of Mr. Foulidis, the Plaintiff has demonstrated that Mr. Ford in fact defamed him. Mr. Ford cannot avail himself of any of the defences of fair comment, qualify privilege or responsible communication, as he has not established that he spoke the words with a bona fide belief as to their truth. Finally, if Mr. Ford can avail himself of those defences, the Plaintiff has established on a balance of probabilities that Mr. Ford was actuated by malice.
6. While the evidence of each party is important, the most important analysis relates to whether an objective person, reading the Article as a whole, would conclude that Mr. Ford was
-1- making an allegation that Mr. Foulidis had acted in a corrupt (i.e., criminal) manner. While this Honourable Court must certainly look at the words complained of, those words can only have meaning when analyzed in the context of the entire Article. The content, context and tone of the Article is everything. It is conceded that Mr. Ford did not expressly state in the statement of claim that Mr. Foulidis is a criminal. He did however defame Mr. Foulidis by innuendo.
7. Prior to the commencement of the trial of the within action, Mr. Foulidis sought damages in relation to the words “smacks of civic corruption”. We have now had the benefit of the transcript of what was precisely said by Mr. Ford during the Editorial Board meeting and we know that he did not use the phrase “smacks of civic corruption”.
8. It is respectfully submitted that this changes nothing in terms of the decision this Honourable Court must make. The words, as pleaded, that Mr. Foulidis claims are defamatory of him are as follows:
(a) “If Tuggs isn’t, then I don’t know what is”; (b) “It’s confidential and I wish you guys knew what happened behind closed doors”; and (c) “The Tuggs deal ‘stinks to high heaven’”.
(Hereinafter, the “Defamatory Words”)
9. First, in paragraph 19 of the Amended Statement of Claim, Mr. Foulidis pleads that by innuendo, the defamatory words were understood to mean that Mr. Foulidis had acted illegally and that the contract awarded to his company was the result of that illegal and criminal activity.
10. Second, Mr. Foulidis pleads in paragraph 20 of the Amended Statement of Claim that the innuendo of the defamatory words is that he bribed a member or members of City Council or, through some other unlawful means, procured favour from City Council that resulted in the improper award of the lease to him.
-2- 11. Finally, Mr. Foulidis asserts in paragraph 21 of the Amended Statement of Claim that the defamatory words are capable of referring to him.
12. Following the evidence of Mr. Ford, it is entirely clear that when he spoke the words, “If Tuggs isn’t, then I don’t know what is”, he was referring to Tuggs being corrupt.
13. When those word are taken together with the words “stinks to high heaven” and “It’s confidential and I wish you guys know what happened behind closed doors”, an objective reader would conclude that a corrupt deal involving Tuggs was hatched behind closed doors. It is respectfully submitted that such statements are defamatory per se by their innuendo.
14. But who has been defamed? Tuggs is simply a corporation; it has no intention so it cannot have the intent to commit a criminal offense. The objective reader will naturally think that it is the operator of Tuggs who is the criminal. But, would the objective reader associate the name Tuggs with Foulidis? That question is answered in the affirmative when one looks at two key factors.
15. The first factor is that Mr. Ford should have known that the Toronto Sun would seek a comment from Mr. Foulidis as Mr. Foulidis was the face of Tuggs and there was no one else the Toronto Sun would logically go to for a comment. As such, Mr. Ford should have known that Mr. Foulidis’ name would be mentioned in the Article particularly since he was alleging corruption involving the deal that Mr. Foulidis negotiated.
16. The express inclusion of Mr. Foulidis as the owner of Tuggs in the Article ties the defamatory statements to Mr. Foulidis directly. Why? Because the allegations are of illegal activity. The corporation does not undertake the illegal activity, the objective reader will logically think that it is the person behind the corporation. That the defamatory words refer to Mr. Foulidis are all the more clear when the objective reader sees that the Toronto Sun identifies Mr. Foulidis as “Tuggs owner George Foulidis”. Again, Mr. Ford should have known that the article would refer to Mr. Foulidis as its owner in connection with allegations involving
-3- criminality. His failure to consider this is fatal to his argument that he never knew who Mr. Foulidis was. He should have bothered to find out.
17. The second point is that when the objective reader is taken into account, and it is respectfully submitted that the sole issue is whether the objective reader would understand the Defamatory Words to mean that Mr. Foulidis was a crook, the evidence is overwhelming that Mr. Foulidis is referred to in every communication involving the discussion of the sole sourced deal and the names Boardwalk Pub and George Foulidis are both identified with the ownership of Tuggs time after time in the public record.
18. Once this Honourable Court determines that the Defamatory Words refer to Mr. Foulidis, the onus shifts to Mr. Ford to established on a balance of probabilities that one of his defences of fair comment, qualified privilege and/or responsible communication apply. None of these defences apply. There is no doubt that our courts have stated repeatedly that politicians have the right and, indeed, the duty to speak out on issues vital to their community. This Honourable Court should be loathed to interfere with that right, a right that Mr. Ford has, except if it is clear that he spoke the Defamatory Words on an occasion where a reasonably objective person could not possibly hold an honest belief in their truth. That is precisely what happened in this case.
19. Mr. Ford made it crystal clear in his evidence that he had no earthly idea about any corruption at all involving City Councillors, Tuggs, or Mr. Foulidis. True, one cannot be entirely sure what Mr. Ford was saying when he described the corruption in City Council, but we do know that he had no knowledge of any corruption, at any time, other than on July 29, 2010 when he told Mr. Agar that he knew “exactly what happened”.
20. Despite his agreement that he knew exactly what happened on that day, curiously, he also agreed that he had forgotten what the elements of the corruption were once he appeared at the Editorial Board meeting with the Toronto Sun a mere two weeks later. Further, while on the stand testifying before this Honourable Court, Mr. Ford could point to no evidence of corruption. Critically, he was unable to give a scintilla of evidence of any corruption by anybody.
-4- 21. It is respectfully submitted that this ends the matter. The lack of an honestly held belief in the Defamatory Words defeats all of the defences put forward by Mr. Ford.
22. Finally, if this court does find that Mr. Ford can avail himself of one of the defences he has put forward, those defences are defeated by Mr. Ford’s clear and unequivocal malice.
23. Mr. Ford explained that he made the accusation that this deal was corrupt for nothing but the best of intentions - to highlight the corruption at City Council. To highlight the horse- trading. To explain to the readers of the Toronto Sun that the process of voting on sole sourced contracts is corrupt. The truth is that Mr. Ford used the term “corruption” to be explosive. He wanted to make a big statement as the election heated up. Lacking any evidence at all, and with the ulterior motive of encouraging the citizens of Toronto to vote for him as the next Mayor of Toronto, Mr. Ford uttered the word corruption, not because he actually had any knowledge that there was corruption, but because he wanted their votes. In the end, Mr. Ford sacrificed the reputation of an honest businessman for his own political gain. That is malice.
PART II: ISSUES
24. The Plaintiff respectfully submits that the following issues arise in this action:
a. Was Mr. Ford properly served with the Notice of Libel?
b. Are the Defamatory Words properly attributable to Mr. Ford?
c. Are the words complained of defamatory?
d. If they are defamatory, do the Defamatory Words refer to Mr. Foulidis?
e. If Mr. Ford’s statements were defamatory of Mr. Foulidis, has Mr. Ford demonstrated any of the defences of bona fide belief, qualified privilege, fair comment or responsible publication?
f. If Mr. Ford has established one of those defences, has Mr. Foulidis proved that Mr. Ford made the statement(s) maliciously?
-5- g. What damages, if any, have Mr. Foulidis suffered?
PART III: LAW AND ARGUMENT
I. Mr. Ford was properly served with the Libel Notice
25. Mr. Ford maintains that this action should be dismissed because he says he was not properly served the Notice of Libel in accordance with section 5(1) of the Libel and Slander Act, supra. The Notice of Libel was served on Mr. Ford by means of personal service upon a member of his campaign team at his campaign headquarters. Mr. Ford says that he had to be served personally in a manner akin to service of a statement of claim.
26. The Ontario Court of Appeal decision in Roach v. Now Communications Inc., [2002] O.J. No. 875 (Ont. C.A.) is determinative of this issue. The facts in Roach are strikingly similar to this case. As stated by Doherty J.A. for a unanimous Court:
The relevant facts can be briefly stated. The article in which the alleged libel appeared was published on or about October 26, 2000. On November 7, 2000, Mr. Roach had a letter delivered to the campaign headquarters of Mr. Davis. The letter contained a copy of the offending article and referred specifically to the three paragraphs that Mr. Roach said contained the libellous statements. […]
The letter was hand-delivered to Mewan Chau an adult person working as an administrative assistant in the campaign headquarters of Mr. Davis. Ms. Chau had no recollection of seeing the letter. Mr. Davis said the letter was not brought to his attention. According to Mr. Davis, he was first aware of the libel claim when he was served with the statement of claim on May 22, 2001.
Roach v. Now Communications Inc., [2002] O.J. No. 875 at paras. 4-5 (Ont. C.A.)
27. The Court unequivocally found that service upon an adult person working at a campaign office is proper service of a notice of libel, under section 5(1) of the Libel and Slander Act, supra, which requires:
-6- No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant. Libel and Slander Act, supra, at s. 5
28. In concluding that service was properly effected in Roach, the Court of Appeal affirmed its 2000 decision in Watson v. Southam Inc., [2000] O.J. No. 2555 (Ont. C.A.). The Court in Roach explained the key holding in Watson v. Southam Inc. by stating:
Watson v. Southam Inc., supra, holds that s. 5 refers to all defendants without qualification because there is no reason to deny any defendant the benefit of the notice contemplated by that section. If the notice requirement is to apply to all defendants, then I see no reason why the two modes of service described in s. 5(1) should not also apply to all defendants. The closing words of s. 5(1) clearly suggest service on a corporate entity and the application of those words to individual defendants may be somewhat clumsy. I see nothing, however, in the language of the section which prevents the application of these words to individual defendants. If an individual defendant has a "chief office", that is, a principal place of business, then delivery of the notice to an adult person at that place should suffice to bring the alleged libel to the attention of the individual defendant. While the notice may not have come to Mr. Davis' attention in this case, that failure is explained by matters peculiar to this case and not by any inherent inadequacy in that mode of service. Roach v. Now Communications Inc., supra at para. 16 See also: Watson v. Southam Inc., [2000] O.J. No. 2555 at paras. 51-53 (Ont. C.A.)
II. The Determination of whether the Defamatory Words were spoken by Mr. Ford
29. Mr. Ford conceded in his testimony at trial that he spoke the Defamatory Words.
30. Despite this concession, Mr. Ford argues that the Toronto Sun does not quote his exact words. A misquote is only a misquote for defamation purposes where it substantially alters the sense of what was said. In Douglas v. Tucker, a campaigning politician made allegations of criminality against his opponent. The reporter to whom he spoke did not publish his exact words.
-7- The Supreme Court of Canada held that if the words convey to the mind of a reasonable man practically the same meaning as the words set out, the variance between the words spoken and the words published will be immaterial. It was sufficient for the Court that the “sting” of the words (i.e. the allegations of criminality) spoken was the same as the words pleaded. Douglas v. Tucker, [1952] 1 S.C.R. 275 at 12 (S.C.C.) See also: Puddister v. Wells, 2007 NLCA 25 at para. 10 (Nlfd. C.A.)
III. The Defamatory Words
31. Prud'homme v. Prud'homme, [2002] 4 S.C.R. 663 (S.C.C.) is the leading case regarding defamation as it applies to elected municipal officials. The Supreme Court of Canada held that for a statement to be defamatory, one must consider whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of another person.
32. Mr. Ford’s statements to the Toronto Sun make allegations of corruption. The innuendo of Mr. Ford’s words was that the deal entered into between Tuggs and the City of Toronto was achieved through corruption. The statement that the deal between the City of Toronto and Tuggs Inc. came about through “corruption” communicates to the ordinary person that illegal activity was undertaken that resulted in Tuggs being awarded a 20-year sole-sourced contract. The meaning of Mr. Ford’s allegation is made clear when he says, “if Tuggs isn’t, then I don’t know what is”. Mr. Ford has conceded that he meant those words to mean that the Tuggs lease is an example of a corrupt deal.
33. Mr. Ford’s statement that the corrupt deal took place “behind closed doors” tells the ordinary person that the process to achieve the corrupt deal was kept hidden from the public. Mr. Ford then amplifies the import of the word “corruption” by saying that the deal “stinks to high heaven”.
34. The Article is more than a single quote from Mr. Ford, and must be viewed as such, in its entire context. The Notice of Libel and amended statement of claim set out the specific words
-8- complained of, and Mr. Foulidis respectfully submits that the correct approach to the specific words is a contextual approach, as established by the Ontario Court of Appeal in Young v. Toronto Star Newspapers Ltd., [2005] O.J. No. 4216 (Ont. C.A.). Robins J.A. for a unanimous court found:
To the extent that the appellants are submitting that the trial judge made an error in law because the article was not capable of bearing the meaning found by the trial judge, I disagree. In relation to this element of the article, the trial judge's specific finding was that, "the last sentence in the article stating that the judge's reasons for declaring a mistrial cannot be reported' seems to suggest that the situation is more complex, rather than to suggest that there is another side to the story". Accordingly, rather than ignoring this element of the article, the trial judge found that it had a particular meaning when read in the context of the entire article. I see no error either in the trial judge's conclusion that this was an available interpretation or in his finding that it was the meaning actually conveyed. [Emphasis added] Young v. Toronto Star Newspapers Ltd., [2005] O.J. No. 4216 at para. 74 (Ont. C.A.)
35. Further, the Supreme Court of Canada in Prud'homme v. Prud'homme endorsed the comments of Senécal J. in Beaudoin v. La Presse Ltée, [1998] R.J.Q. 204 (Sup. Ct.) as follows:
Whether remarks are defamatory is determined by applying an objective standard […] In other words, we must ask whether an ordinary person would believe that the remarks made, when viewed as a whole, brought discredit on the reputation of another person. On this point, we should note that words may be defamatory because of the idea they expressly convey, or by the insinuations that may be inferred from them. In Beaudoin v. La Presse Ltée, [1998] R.J.Q. 204 (Sup. Ct.), at p. 211, Senécal J. provided a good summary of the approach to be taken in determining whether particular remarks are defamatory in nature: [TRANSLATION] "The form in which the libel is expressed is of little import; it is the result achieved in the mind of the reader that creates the delict." The defamatory allegation or imputation may be direct, or it may be indirect, "by simple allusion, insinuation or irony, or be made conditionally, as an expression of doubt, or hypothetically." Often, the allegation or imputation "is conveyed to the reader by way of a simple insinuation, an interrogative sentence, a reference to a rumour, mention of information that has infiltrated the public awareness, juxtaposition of unrelated facts that, together, take on the appearance of being related". The words must also be interpreted in their context. For instance, "it is not possible to isolate a passage from a text and complain of it, if the entire text sheds a different light on that excerpt". On the other hand, "it matters little that the elements of which it is composed are true if the text as a whole conveys a message
-9- that is contrary to reality". In fact, truth or reality may be distorted by half-truths, selective compilation, omissions, and so on. "We must consider a newspaper article or radio broadcast as a whole, and the sentences and words must be interpreted by reference to one another." [Emphasis added] Prud'homme v. Prud'homme, supra at para. 34.
36. Corruption is defined by the Merriam-Webster Dictionary as “an impairment of integrity; inducement to wrong by improper or unlawful means (as bribery).” Corruption is also defined by Black’s Law Dictionary as “depravity, perversion, or taint; an impairment of integrity, virtue, or moral principle; esp. the impairment of a public official’s duties by bribery.”
Black’s Law Dictionary, 3rd Edition (Thomson West: 1996) Merriam-Webster’s Collegiate Dictionary, 10th Edition (Merriam-Webster: 1993)
37. “Skulduggery” is defined by the Merriam-Webster Dictionary as “a devious device or trick; underhanded or unscrupulous behaviour.” Merriam-Webster’s Collegiate Dictionary, 10th Edition (Merriam-Webster: 1993)
38. Mr. Ford stated that the lease negotiations between Mr. Foulidis and City Council were characterized by “corruption” and “skulduggery”.1 Mr. Ford’s words convey that Mr. Foulidis engaged in corrupt, dishonest and illegal activity during the lease negotiation.
39. Corruption is a criminal act, under sections 119 to 130 of the Criminal Code. Corruption in the municipal context specifically is illegal under section 123(1) of the Criminal Code:
Municipal corruption 123.(1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years who directly or indirectly gives, offers or agrees to give or offer to a municipal official or to anyone for the benefit of a municipal official — or, being a municipal official, directly or indirectly demands, accepts or offers or agrees to accept from any person for themselves or another person — a loan, reward, advantage or benefit of any kind as consideration for the official
1 While Mr. Ford maintains that he has not been sued for the use of the term “skullduggery”, his use of that word gives context to the words complained of by the plaintiff. He conceded in his evidence that his statement “if Tuggs isn’t I don’t know what is” should be read as including the words “corruption and skullduggery”.
-10- (a) to abstain from voting at a meeting of the municipal council or a committee of the council; (b) to vote in favour of or against a measure, motion or resolution; (c) to aid in procuring or preventing the adoption of a measure, motion or resolution; or (d) to perform or fail to perform an official act. Influencing municipal official 123.(2) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years who influences or attempts to influence a municipal official to do anything mentioned in paragraphs (1)(a) to (d) by (a) suppression of the truth, in the case of a person who is under a duty to disclose the truth; (b) threats or deceit; or (c) any unlawful means. Definition of “municipal official” 123.(3)In this section, “municipal official” means a member of a municipal council or a person who holds an office under a municipal government.
Criminal Code, RSC 1985, c C-46
40. Mr. Ford’s allegations of corruption were not limited to the Article. Although Mr. Foulidis only seeks damages for the Article, an interview that took place prior to the Editorial Board meeting is very instructive of what Ford meant. On July 29, 2010, approximately 14 days before publication of the Article, Mr. Ford appeared on CFRB Radio in an interview with Jerry Agar, to explain exactly what he meant when he said the City’s lease with Tuggs was “corrupt”.
41. The exact exchange relevant to this proceeding, as pleaded at paragraph 14 of the Amended Statement of Claim, was as follows:
Mr. Ford: This is the problem. It’s in camera. So, if I were to tell you how they did it, I’d be sued. Or they’ll take me to the integrity Commissioner.
Mr. Agar: Do you know?
Mr. Ford: I know exactly what happened.
Mr. Agar: Well then tell us.
Mr. Ford: This is the problem.
-11- Mr. Agar: I’ll try to raise some money to pay your legal bills.
Mr. Ford: It’s true, it’s true...contributions.
Mr. Agar: Is someone getting money under the table?
Mr. Ford: I truly believe they are, and that’s my personal opinion, and when I see all these donations, going through campaigns, it stinks to high heaven, we tried to re-open it, and they wouldn’t re-open it. [Emphasis added]
42. By stating his belief that there was money being paid to someone under the table, and, additionally, that payoffs were being funnelled through campaign contributions, Mr. Ford was stating by innuendo that Mr. Foulidis bribed City officials to gain his lease with the City. In his evidence at the trial of this action, Mr. Ford agreed that he was making that allegation.
43. Further, by stating that he knew “exactly what happened”, Mr. Ford was making it clear that he had the evidence; he had the goods on Tuggs. His problem was being preventing by the rules of fair play from bring the evidence forward. We now know from Mr. Ford’s evidence at trial is that he in fact had no evidence that he could point to that would demonstrate how the deal was corrupt.
44. This exchange is important when the court looks at Mr. Ford’s claims concerning his comment to the Toronto Sun.
45. In Hodgson v. Canadian Newspapers Company Limited et al., 39 O.R. (3d) 235 (Ont. Crt. Gen. Div.) the Court endorsed the following definition of “innuendo” from Jones v. Skelton, [1963] 3 All E.R. 952 at p. 958, [1963] 1 W.L.R. 1362 (P.C.):
Innuendoes occur where the defamatory meaning of the words arises from inference or implication. Sometimes the inference is one which a reasonable reader without any special knowledge would be expected to draw from the words used. Such a meaning is called a "false" innuendo and is regarded as part of the natural and ordinary meaning:
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that
-12- does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words [citation omitted]. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader, guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction, would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense. Hodgson v. Canadian Newspapers Company Limited et al., 39 O.R. (3d) 235 at para. 17 (Ont. Crt. Gen. Div.)
46. The words “if Tuggs isn’t, then I don’t know what is” immediately followed the corruption allegations in the Article and refer to that corruption. The words by themselves establish by innuendo that the Tuggs’ lease with the City was achieved through dishonesty. The words convey that Mr. Ford could not conceive of a more corrupt deal than the Tuggs deal. His concession of this fact in his evidence assists the court in assessing how the reasonable person would interpret those words. Indeed, if the author of the words meant that the lease was achieved through dishonesty, most certainly the objective reader would.
47. The words “it’s confidential and I wish you guys knew what happened behind closed doors” convey to the ordinary person that the lease negotiations took place in secret to hide the misconduct that happened during the negotiations. The use of “confidential” and “closed doors” conveys the meaning, expressly or by innuendo, that the public should be concerned with what happened away from public scrutiny. It was secret because it was wrong and the negotiators would never achieve their corruption if the public knew the details of the corruption. The deal had to be secret because otherwise the public would be outraged with the dishonest dealings between Mr. Foulidis and the City.
48. The words also paint Mr. Ford in the best possible light – lamenting his inability to inform the public because of the confidentiality involved. It bolsters Mr. Ford’s credibility in the mind of the reader – implying that he is trying to do the right thing but is prevented from so doing. These words therefore emphasize and amplify the defamatory meaning.
-13-
49. The words “the Tuggs deal ‘stinks to high heaven’” magnify the defamatory statements immediately preceding it. It is a final emphasis from Mr. Ford that the deal was corrupt, dishonest, untoward, secretive and of concern to Torontonians (if only they could know what happened behind closed doors). It is the punch line in a series of false allegations and conveys the corrupt stench of the dealings between Mr. Foulidis and City Council.
50. Each of the above phrases would be understood to mean that Mr. Foulidis acted dishonestly and illegally, and that honest members of City Council – such as Mr. Ford – should not or would not do business with him.
IV. The Publication and Republication of the Defamatory Words
51. Mr. Ford does not appear to dispute that the statements by him were published in a newspaper or that he did not speak the Defamatory Words.
52. The evidence at trial established that the defamatory comments were published not only in the Toronto Sun, but also re-published in numerous sources over a long period of time.
53. It is also no defence for Mr. Ford to say that he is not responsible for the defamatory words because the Toronto Sun published them. As stated By Raymond E. Brown:
A person is accountable for a republication if he or she intends or expressly or impliedly authorizes, another to publish it to someone else on his or her behalf. Thus it has been said by the Supreme Court of Canada that a person who communicates a defamatory remark to a newspaper reporter will be deem to have authorized that reporter to publish the remark in the newspaper and will be held responsible as though he published it himself. Raymond E. Brown, “Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States”, Volume 2, 3nd ed. (Carswell: 2010) at page 7-47 See also: Wells v. Sears, [2006] N.J. No. 145; Ottawa Carleton District School Board v. Scharf, 2007; Ridge Pine Park Inc. v. Schwisberg, [1998] O.J. No 1642 at para. 9 (Ont. Crt. J. (Gen. Div.))
-14- 54. In Douglas v. Tucker, supra, the Supreme Court of Canada found that where one speaks to a newspaper knowing that a story may be published, that person is responsible for the newspaper’s publication. A request to publish may be inferred in making a statement to a reporter. Douglas v. Tucker, supra at 10-11
55. In Stopforth v. Goyer, 1978 O.R. (2d) 262 (Ont. H.C.J.) the Court found: It is settled law that where a person speaks defamatory words to the press with the intention or knowledge that they will be republished, the speaker is responsible in libel rather than in slander.
When a politician of experience speaks to the press he impliedly, if not expressly, authorizes republication of his communication and is thus responsible for any libel. This point was not put in issue by counsel for the defendant. Stopforth v. Goyer, 1978 O.R. (2d) 262 at 3 (Ont. H.C.J.)
56. The libel was furthered by a number of sources, including Mr. Ford’s Communications Director Adrienne Batra. She spoke on behalf of Mr. Ford to a radio audience on CFRB Radio on September 16, 2010 following a press conference held by Mr. Foulidis where he demanded that Mr. Ford produce evidence of the corruption or apologize. Mr. Ford not only refused to apologize for his baseless allegations of corruption, but also dispatched his campaign team to confirm to the public that evidence of Mr. Foulidis’ corruption does exist and would be brought to this hearing. The exact exchange, pleaded at paragraph 28 of the Amended Statement of Claim, was as follows:
Mr. Agar: What Mr. Foulidis said today was that he was putting you on notice to correct the statement he said during the conference or intimated during the press conference today, that if Rob Ford were to issue a sufficient apology he may not sue.
Ms. Batra: Well, and that’s fine for Mr. Foulidis to say, but Rob Ford will not be apologizing to try to shine a spot light on what could be very well considered a somewhat untoward deal that was made behind closed doors, unavailable to the public, unavailable to the taxpayers of Toronto, and to be very clear Jerry, Mr. Ford’s concern here and the red flag he’s raised is specifically directed at Council and Council’s reaction, and Council’s inability and unwillingness to be held accountable.
-15- Mr. Agar: Yeah, although you just heard that I asked him on July 29th, “you think there was money under the table, and he said absolutely”. Well, who would that money come from?
Ms. Batra: Well, and maybe there is....and so, if Mr. Foulidis feels he has enough money to throw around and wants to take Mr. Ford to court then all of this information will be made very public in a discovery hearing, and Rob is absolutely committed to the citizens and taxpayers of Toronto to revisit this very deal if he is elected on October 25th. [Emphasis added]
57. Mr. Ford refused to apologize, because he wanted to “shine a light” on an untoward, secret deal. Instead, communications director publicly declared that he had evidence of corruption that would be made public during this case.
58. Mr. Foulidis took responsibility for Ms. Batra’s statements during his evidence at the trial of this action. This means that Mr. Ford’s advised the voters that he stood behind his previous allegations of corruption and would prove it when the time comes. He never provided any evidence of corruption.
V. Whether the Defamatory Words Refer to Mr. Foulidis
59. Mr. Ford argues first, that his defamatory comments referred to corruption at City Council and not to Mr. Foulidis, and secondly that if another party was implicated, it was Tuggs as a corporation and not Mr. Foulidis as the owner, operator, sole shareholder and negotiator of the lease with City officials. These are two discrete issues. First, the issue of identify and secondly, if Mr. Ford defamed Mr. Foulidis personally.
A. Identity
60. Mr. Ford’s first argument that he only alleged corruption against City Council is unpersuasive.
-16- 61. The term “deal” necessarily includes two parties. “Deal” is defined in Black’s Law Dictionary as: An act of buying and selling; the purchase of something for profit. An arrangement for mutual advantage. Black’s Law Dictionary, 3rd Edition (Thomson West: 1996)
62. Corruption in a lease deal and lease negotiations must involve two parties, the leasee and the leasor. Two parties negotiated the lease – the City of Toronto and George Foulidis. Any allegation of corruption necessarily involves both parties. To argue otherwise is to put forward the ridiculous argument that City Council was somehow bribing itself during the lease negotiations. As Mr. Ford testified, “It takes two to tango”. Mr. Ford also testified that you need two parties to have corruption – “a corruptor and a corruptee”.
63. It is not necessary for defamatory comments to refer to the defamed person by name. In Silva v. Toronto Star Newspapers Ltd., [1998] O.J. No. 6491 (Ont. Crt. J.), defamatory comments were made with respect to abusive conduct by a “manager” towards tenants in subsidized housing, without stating which individual specifically was the manager responsible for the alleged conduct. The plaintiff claimed that portions of the article referred specifically to her even though she was not named. The Court agreed because only she could be the person to which the allegations referred.
64. The Court used various indicators to determine that the plaintiff was the person actually accused of the abusive behaviour, including the small number of people who could be considered managers of the building, and that the plaintiff spoke Portuguese, as did most tenants. The Court found:
The test of identity is whether or not the alleged libel is so published by the defendant that people acquainted with the plaintiff would apply the libel to her even if she is not referred to by name. Thus, the question in all cases is whether the words might be understood by reasonable people to refer to the plaintiff. Subject to the qualification where the words are published to persons who have special knowledge, the issue would be decided by reference to what reasonable persons possessing that knowledge would understand by them. (Gatley on Libel and Slander, 9th ed., p. 16.)
-17- Silva v. Toronto Star Newspapers Ltd., [1998] O.J. No. 6491 at para. 12 (Ont. Crt. J.)
65. In Halluk v. Brown, (1982), 41 Alta R. 350 (Q.B.), the defendant, in making defamatory remarks, referred to an unnamed assistant superintendent who had just been appointed to supervise street paving. The court held that the fact that the foreman worked under the plaintiff, as well as his supervisors, would lead to the conclusion that the defamatory remarks referred to the plaintiff. The court reiterated the test for identity from Sykes v. Fraser and also Syme v. Canaven as follows: In that case the test approved by Lieberman, J., (as he then was) quoted at [1971] 1 W.W R. at 258 from Syme v. Canaven 25 C.L.R. 234, at 238; [1918] V.L.R. 540, was this: "The test whether the words which do not specifically name the plaintiff refer to him or not is this: Are they such [*356] as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him." Halluk v. Brown, (1982), 41 Alta R. 350 at para. 14 (Q.B.)
66. The Article specifically refers to Mr. Foulidis immediately following the allegations of corruption: “Tuggs owner George Foulidis did not respond to requests for comment from the Sun.” While Mr. Ford did not speak those words, he knew or should have known that the Toronto Sun would seek his comment and mention Mr. Foulidis by name. The Toronto Sun could not very well ask the corporation itself to provide a comment, it necessarily had to be someone affiliated with Tuggs and its owner and operator is the only choice. Numerous newspaper reports published prior to the Article and following its publication referred specifically to Mr. Foulidis.
67. Mr. Ford specifically referred to Tuggs during his interview with the Toronto Sun Editorial Board. He knew that Tuggs and Foulidis were linked. At the Editorial Board meeting, Sue-Ann Levy asked Mr. Ford about the “Foulidis deal”, and Mr. Ford responded “The Tuggs deal?”. Mr.
-18- Ford knew or was alerted to the link between Mr. Foulidis and Tuggs as contemporaneously as possible to his making the allegations of corruption in the lease negotiations.
68. Mr. Ford said the deal was corrupt, not Tuggs. This clearly points to the people who negotiated the deal. Mr. Foulidis was the person who negotiated it on behalf of Tuggs. City personnel, including councillors and staff, were aware that Mr. Foulidis negotiated the lease on behalf of Tuggs. By saying the deal was corrupt, Mr. Ford was calling Mr. Foulidis corrupt.
B. Whether Mr. Foulidis was Personally Defamed
69. Mr. Ford’s second argument - that he implicated Tuggs (if anyone) in the corruption - is similarly unpersuasive. Despite the general rule that an organization and its members are not interchangeable in defamation actions: Nevertheless, there are circumstances where a plaintiff may be identified because he or she has a business or employment relationship with a person who or entity which is named. If the persons to whom the publication is made are aware of that relationship and reasonably believe the plaintiff is referred to, the necessary identification is satisfied even though the plaintiff is not specifically named in the publication. (Smithers J. in Kruse v. Lindner (1978), 19 A.L.R. 85 at 88 (Fed. Crt.)) [Citation added] Raymond E. Brown, “Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States”, Vol. 2, 2nd ed. (Carswell: 2010) at page 6-41
70. This was the case in Augustine Automatic Rotary Engine Co. v. Saturday Night Ltd. (1917), 38 O.L.R. 609 (C.A.). The court held that defamatory allegations against Mr. Augustine personally (that he had taken money from investors and should be closed up so that shareholders in the plaintiff company would get back their investment) was also an attack on the plaintiff company, because it suggested that shareholders were defrauded by Mr. Augustine while acting for the company. Augustine Automatic Rotary Engine Co. v. Saturday Night Ltd. (1917), 38 O.L.R. 609 (C.A.)
71. The test – to whom would an ordinary reader understand the defamation to apply – has long been a part of the common law. The test was set out by the Supreme Court of Canada in Skyes v. Fraser, [1974] S.C.R 526 (S.C.C.) as follows:
-19- As is pointed out in the judgment of the learned trial judge [[1971] 1 W.W.R. 246] and of the Court of Appeal of Alberta [[1971] 3 W.W.R. 161] there are two questions to be determined at the outset. The first is a question of law as to whether the statement complained of can, having regard to its language, be regarded as capable of referring to the respondent. The second question is, does the article in fact lead reasonable people who know the respondent to the conclusion that it does refer to him? This is a question of fact. [Emphasis added] Skyes v. Fraser, [1974] S.C.R 526 at 11 (S.C.C.)
72. The test for identity has been used to find that allegations against those running a company are defamatory against the company or corporation. In Owen Sound Building & Saving Society v. Meir (1893), 24 O.R. 109 (Ont. C.A.), allegations of criminality (including fraud) were made against unnamed directors of a company, and a defamation action was successfully brought in the company’s name. The Court of Appeal agreed with the defendants that the libel against the directors had an impact on the company’s powers to do business, therefore the action was properly brought. The Court of Appeal found that the ordinary read would read the allegations as defamatory. The publication read by one who had not heard or read the evidence, and who did not know anything of the actual facts alluded to in it, would, I think, be fairly taken to mean that all the acting directors of the society were persons representing themselves to be directors, and were self-appointed, an in consequence of this all business transacted by them on behalf of the society since and including the first Monday in August is wholly and entirely contrary to rules and regulations and law. […] Owen Sound Building & Saving Society v. Meir (1893), 24 O.R. 109 at para. 20 (Ont. C.A.)
73. The test has also been used to find that allegations against a corporation are defamatory of those operating the corporation. Raymond E. Brown states: The plaintiff may be referred to if the company or business which he owns and operates is named, since he may have control over the operations and policies of that business. Thus, it is possible for a private individual to be defamed by reference to a corporation with which he or she is identified, or over which he or she exercises management control, or for a corporation to be defamed by reference to its principal managing officer, or to the directors of the company, or to an individual with whom it is connected. Raymond E. Brown, “Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States”, Volume 2, 3nd ed. (Carswell: 2010) at page 6-45
-20- 74. In Dombey v. Pheonix Newspapers Inc., 150 Ariz 476 (1986) (Ariz. S.C.) the court stated: This rule has been interpreted to mean that libel of a corporation will support an action by an owner-shareholder if reasonable readers would understand it to charge the individual with the same conduct as the corporation. Dombey v. Pheonix Newspapers Inc., 150 Ariz 476 (1986) at page 14 (Ariz. S.C.)
75. This is the case in Canada as well. A fact pattern analogous to this case is Walker et al. v. CFTO Ltd. et al., 1987 59 O.R. (2d) 104 (Ont. C.A.). The plaintiffs in that case were Norris Walker and his family company Walker Brothers Quarries Limited, an industrial waste disposal business, of which Mr. Walker was president. In that case, a jury awarded damages for defamation to the corporation as well as the president Mr. Walker. The Ontario Court of Appeal engaged in an extensive discussion of the damages available to corporations vis-à-vis their officers, and then held:
Clearly, it is incumbent on a plaintiff in a libel action to prove, not only that the defendant published the statements complained of and that they are defamatory, but also that they are defamatory of him or her. The statements must be such that they would be understood by reasonable people to refer to the plaintiff: Gatley, op. cit., para. 281. In the defendants' contention, the statements found by the jury in this case to be defamatory were spoken of the company as distinct from Walker personally. His appearance on the programme, the argument goes, was in his capacity as an officer of the company; no defamatory allegations were directed against him in his personal capacity and he, in short, was not defamed.
The transcript of the programme, however, reveals that on at least one occasion Champ levelled a charge with respect to liquid waste, one the jury presumably found libellous, which was reasonably capable of being understood to apply to Walker personally. To this limited extent, I am satisfied that there was some evidence entitling the jury to find that Walker had been defamed, and I would not disturb its verdict in this regard. The differential between the amounts awarded Walker and Walker Brothers doubtless reflects the jury's view of the relative magnitude of the reputational injury sustained by these plaintiffs. [Emphasis added] Walker et al. v. CFTO Ltd. et al., 1987 59 O.R. (2d) 104 at 12 (Ont. C.A.)
76. In M.D.A. Marine Design Associates Ltd. v. British Columbia Ferry Services Inc., [2008] B.C.J. No. 2017 (B.C.S.C.), the defendant, Vice President of Engineering for BC Ferries, send an email revoking the “Approved” status of two companies for contracts with BC Ferries,
-21- alleging unsatisfactory work. The plaintiffs Mr. Armour, Mr. Smiley and Mr. Marwood were not named, but were the principals of the two companies named in the email. The court found that the email was capable of being defamatory towards the companies’ principals:
The Email does not name the plaintiffs Armour, Smiley, or Marwood. In order to establish that the words referred to the plaintiffs, a two-part test must be satisfied: 1. As a question of law, can the communication be regarded as capable of referring to the plaintiff? 2. As a question of fact, does the communication in fact lead reasonable people who know that plaintiff to the conclusion that it does refer to him? (Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 at 121, Viscount Simon L.C., cited in Arnott v. College of Physicians and Surgeons of Saskatchewan, [1954] S.C.R. 538 at 554, [1955] 1 D.L.R. 1, per Kellock J. [Arnott], cited to S.C.R.)
A plaintiff may be identified "even though he is not mentioned by name, where a reference is made to something over which he exercises control or for which he has some responsibility": (Raymond E. Brown, The Law of Defamation in Canada, 2d. ed. looseleaf, (Toronto: Carswell, 1999) Vol. 1 at s. 6-23).
The Email went to 90 people, many of whom had worked closely and in a professional capacity with Mr. Armour and Mr. Marwood. MDA and PDS are both small private companies that are in effect vehicles for their principals to earn a living. In my view, the marine design community in British Columbia would associate any defamatory statements concerning the two companies with their principals. Accordingly, I find that this element of defamation has been made out by the plaintiffs. M.D.A. Marine Design Associates Ltd. v. British Columbia Ferry Services Inc., [2008] B.C.J. No. 2017 at paras. 19-21 (B.C.S.C.)
77. The test is whether Mr. Ford’s comments were “reasonably capable of being understood to apply to” Foulidis personally, by the people who knew him. For the reasons outlined above, they were. Mr. Foulidis negotiated the lease agreement, Mr. Ford stated that the deal was corrupt and the innuendo of his words was understood to mean by the reasonable objective person that Mr. Foulidis must be corrupt.
78. The context in which Mr. Ford made his allegations of corruption is extremely important. Mr. Foulidis is the owner and operator of Tuggs and the sole shareholder. He is the owner and operator of the restaurant Tuggs operates - Boardwalk Café. He is its public face. This is not a
-22- case involving a large corporation where a large number of people own and run a company. Mr. Foulidis is not Mircosoft. He is a small business owner whose public reputation is indistinguishable from his company.
79. In PSC Industrial Canada Inc. v. Ontario (Ministry of the Environment), [2004] O.J. No. 1413 (Ont. Supt. Crt. J.) the Court endorsed the following comments by a leading Canadian defamation law scholar:
The author, Raymond E. Brown, in his work The Law of Defamation in Canada (2nd Edition) (Toronto, Carswell, 1994) states that; "(a)ctions for libel and slander are sui juris. They are personal to the person or entity whose reputation has been impugned. A plaintiff cannot sustain an action merely by showing that the same publication defamed someone else." (at p. 183) The author proceeds to give examples of his latter remark, one of which is that generally a corporation cannot sue for defamation of one of its officers. There may be situations in which a personal accusation against an individual officer may be defamatory to the corporation. That would depend upon the role of the officer in the corporation. If the role is so closely identified with the corporation, to the extent that one could be described as the "alter ego" of the other in the public mind, then it is possible that a corporation could be defamed by accusations against its officers. [Emphasis added] PSC Industrial Canada Inc. v. Ontario (Ministry of the Environment), [2004] O.J. No. 1413 at para. 46 (Ont. Sup. Crt. J.)
80. The converse is necessarily true. Where the role of an officer is so closely identified with the corporation, to the extent that one could be described as the "alter ego" of the other in the public mind, an officer can be defamed by accusations against the corporation.
81. George Foulidis and Tuggs are inextricably linked. Mr. Foulidis is its public face of Tuggs. He works each day at the Boardwalk Café. Simply put, Mr. Foulidis is the business. Further, and as reported in the media on many occasions prior to the publication of the Article, Mr. Foulidis personally negotiated the lease agreement with City Council. If there was corruption in the negotiation of that deal, Mr. Foulidis was necessarily part of that corruption.
VI. Mr. Ford’s defences
-23-
82. Once Mr. Foulidis has established that the impugned words are defamatory of him, the onus shifts to Mr. Ford to advance a defence in order to escape liability for his defamatory comments. Mr. Ford relies on three branches of privilege to absolve himself of responsibility for the Article: bona fide belief in the truth of the words; qualified privilege and fair comment. If those defences fail, he seeks to avail himself of the defence of responsible communication.
83. It is trite law that libellous statements cannot be defended unless the statements are true. Defamation law protects one’s right to make true and accurate statements, not fabrications and lies. Mr. Ford failed to adduce any evidence at trial that the lease involved “skulduggery”, “corruption”, or any other dishonest practice.
A. Bona fide belief in truth
84. Mr. Ford fabricated the allegations of corruption. There is no evidence that the lease negotiation involved any corruption, illegal or dishonest practices. Mr. Ford took no steps whatsoever to verify the truth of the allegation. Indeed, it would appear that he knew very well that there was no “corruption” but decided to level the allegations anyhow.
85. “Bona fide” is Latin for “in good faith”. Black’s Law Dictionary defines “bona fide” as: Made in good faith; without fraud or deceit. Sincere; genuine. Black’s Law Dictionary, 3rd Edition (Thomson West: 1996) {get the correct citation for Black’s]
86. In the municipal law context, “[t]he phrase "bona fide" signifies something done in good faith without fraud or deceit or collusion. There must be honesty in fact. There must be complete frankness.” Re Jackson and Wall (1978), 21 O.R. (2d) 147 at 8 (Co. Ct.)
87. The defence of bona fide belief in truth is not available to Mr. Ford. The allegations were not true, unverified, and Mr. Ford could not have reasonably believed them to be true.
-24-
88. The evidence at trial established that Mr. Ford only had a bona fide belief that there was some “horse-trading” going on. He did not have any evidence at all that he had facts to support his public statement that the deal was corrupt. It is respectfully submitted that Mr. Ford only had a bona fide belief that by stating the word corruption, he could garner more votes.
89. When pressed repeatedly in cross-examination in whether he had any evidence to support his very serious allegations of criminality, Mr. Ford did not equivocate. He said he did not. That evidence alone establishes that it was unreasonable for Mr. Ford to hold a belief in the truth of his own allegations.
90. His testimony was clear that the only other two statements of criminality (the Baker letter and the Malamis letter) were documents that he did not use to form the basis for his allegation of corruption.
B. Qualified Privilege
91. Qualified privilege attaches to the occasion upon which the communication is made, not to the communication itself. Hill v. Church of Scientology, supra at para. 143
92. Municipal politicians enjoy a qualified privilege for words spoken at a meeting of a municipal council. The defence of qualified privilege is not reserved exclusively to elected municipal officials. It applies whenever a person who makes a communication has an interest or a duty, legal, social or moral, to make it to another person who has a corresponding interest or duty to receive it. Prud'homme c. Prud'homme, supra at para. 53 (S.C.C.)
93. The common law recognizes a qualified privilege that protects defamatory statements where the defendant had a legal, moral or social duty in making the statement and the recipient
-25- of the information had a corresponding interest in receiving the information. (Hill v. Scientology, supra, at para. 143, applying Adam v. Ward, [1917] A.C. 309 (H.L.)).
94. While the words spoken by Mr. Ford would have been protected by qualified privilege had he spoken them on the occasion of a council meeting, they are not so protected when he chose to speak them on the occasion of a Toronto Sun Editorial Board meeting. Mr. Ford had no duty whatever to speak to the press, nor did the press have any duty to receive the information. The words spoken by Mr. Ford were simply not spoken on an occasion of qualified privilege.
95. Even if words spoken by a politician to a newspaper editorial board can be considered spoken on an occasion of qualified privilege, Mr. Ford cannot avail himself of the defence of qualified privilege if he (i) exceeded the limits of his duty or interest in communicating that the lease agreement was achieved through corruption, and/or (ii) if the dominant motive for publishing the statement is actual or express malice. (The law related to malice will be outlined under a separate heading of this factum as it comes into play for defences in addition to the defence of qualified privilege.
96. In Hill v. Church of Scientology of Toronto, supra, the Supreme Court described the limits of the defence of qualified privilege:
Qualified privilege may also be defeated when the limits of the duty or interest have been exceeded. See The Law of Defamation in Canada, supra, at pp. 13-193 and 13-194; Salmond and Heuston on the Law of Torts (20th ed. 1992), at pp. 166- 67. As Loreburn E. stated at pp. 320-21 in Adam v. Ward, supra:
. . . the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. In other words, the information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given.
Hill v. Church of Scientology of Toronto, supra, at paras. 146-147
-26- 97. Mr. Ford exceeded the limits of his duty or interest in communicating to readers of the Toronto Sun that the contract awarded to Tuggs was achieved through corruption. Mr. Ford cannot have a protected interest in fabricating serious criminal allegations and reporting them to a major newspaper.
98. Further, Mr. Ford concedes that he failed to bring his corruption allegations to City Council or the authorities or anyone with power to investigate – he went straight to the press. The only rationale for this calculated act is that Mr. Ford made the allegations to further his campaign message of “cleaning up City Hall” and stopping the “gravy train” to positively enhance his own public image at the expense of the reputation of Mr. Foulidis.
99. Mr. Ford was entitled to take the position that the Tuggs deal was not a good deal for the City of Toronto. He was also entitled to say that the Tuggs deal “stinks to high heaven” if and only if he did not say it in the context of his statement that the deal was corrupt. Because there was no basis at all for the assertion that the deal was reached through corruption, Mr. Ford exceeded the limits of his duty or interest.
100. It cannot be said that Mr. Ford’s words were both “germane and reasonably appropriate”, as required by the Supreme Court of Canada in Douglas v. Tucker. Instead, they were a fabrication by him. Similarly, it cannot be in the public interest that an innocent business owner’s reputation is reasonable collateral damage to a mayoral candidate’s pursuit of office.
101. Mr. Ford failed to act in good faith. He made no effort to temper his language or be measured in his allegations. To compound matters, Mr. Ford in one breath tells the Toronto Sun that the Tuggs deal is corrupt – “If Tuggs isn’t, then I don’t know what is” – and then states that he cannot point fingers – “I can’t accuse anyone, I can’t point fingers.” Mr. Ford alleges corruption and then says that he has no proof. He made no effort to gather proof of corruption. He made no attempt to determine whom he was targeting with his allegation of corruption. Mr. Foulidis and the damage to his reputation were not even considered by Mr. Ford. It should have been at the forefront of his mind.
-27- 102. Further, while it may be in the public interest to attack the deal and focus the attack on City Councillors, it is quite another thing to call Tuggs or Mr. Foulidis corrupt. Mr. Foulidis is a private citizen and was not a participant in the dialogue related to the municipal election. He is a private citizen.
C. Fair comment
103. In WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420 (S.C.R.), the Supreme Court of Canada modified the “honest belief” element of the fair comment defence as follows:
(a) the comment must be on a matter of public interest;
(b) the comment must be based on fact;
(c) the comment, though it can include inferences of fact, must be recognizable as comment; and
(d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?
Even though the comment satisfies the objective test of honest belief, the defence can be defeated if the plaintiff proves that the defendant was motived by malice. The defendant must prove the four elements of the defence before the onus switches back to the plaintiff to establish malice.
See: WIC Radio Ltd. v. Simpson, supra at para. 28 and 52 See also: Grant v. Torstar Corp., supra, at para. 31 (S.C.C.)
104. To succeed in the fair comment defence, Mr. Ford must establish that he had an “honest belief” in his corruption allegations (for which no proof has been adduced).
(a) The comment must be on a matter of public interest
105. The Tuggs lease negotiation was a matter of interest to the public.
-28-
(b) The comment must be based on fact
106. Mr. Ford cannot satisfy this prong of the test. By Mr. Ford’s own admission, his allegations were utterly without merit, unfounded, and untrue. There are no facts on which his comments could be based. The distinction must be drawn here between what Mr. Ford tried unsuccessfully to convince the court was the true meaning of his words and what he actually meant. Mr. Ford tried in vein to explain to this Honourable Court that he was talking about “the process” at City Council; that he was really talking about “horse-trading”. What the evidence revealed is that he was talking about money being paid under the table, of bribery and criminal corruption. He pointed out that it takes “two to tango”. Mr. Ford made it clear that his statements were not as benign as he tried hard to express. His evidence was simply disingenuous.
(c) The comment must be recognizable as comment
107. This element of the fair comment defence turns on whether the impugned comments were made as comment or an imputation of fact – that is, an inference or a factual premise. WIC Radio Ltd. v. Simpson, supra at para. 26
108. Mr. Ford, as an authoritative politician with first-hand knowledge of the Tuggs lease negotiation with City Council, reported the corruption as fact. The corruption allegation is not inferred, rather the words “corrupt” and “corruption” are repeatedly stated by Mr. Ford during the Toronto Sun Editorial Board meeting.
109. Mr. Ford’s comments were statements of fact – corruption occurred in the Tuggs lease – and was understood as such by those receiving the publication.
110. In WIC Radio Ltd., supra, the Court distinguished between statements of opinion and statements of fact this way:
The trial judge, after reviewing the editorial as a whole, concluded:
-29- The facts in those statements which are clearly facts are: 1) that Kari was on Bill Good's show last Friday; and 2) that she did speak to a rally the night before. These facts were true. There is no other sentence or statement or phrase which would be understood to be a matter of fact, and the language in which it is couched is such that it is clearly opinion. [Emphasis added; para. 44.] For reasons stated earlier, I agree with this conclusion. [Emphasis in original] WIC Radio Ltd. v. Simpson, supra at para. 58
(d) Could any person honestly express that opinion on the proved facts?
111. The issue is whether Mr. Ford can establish a “nexus” between what he stated as a fact and what he stated as a comment. In WIC Radio Ltd., the court had this to say about the analysis of Mr. Ford’s honest belief:
"Honest belief", of course, requires the existence of a nexus or relationship between the comment and the underlying facts. Dickson J. himself stated the test in Cherneskey as "could any man honestly express that opinion on the proved facts" (p. 1100 (emphasis added)). His various characterizations of "any man" show the intended broadness of the test, i.e. "however prejudiced he may be, however exaggerated or obstinate his views" (p. 1103, citing Merivale v. Carson (1887), 20 Q.B.D. 275 (C.A.), at p. 281). Dickson J. also agreed with the comment in an earlier case that the operative [page450] concept was "honest" rather than "'fair' lest some suggestion of reasonableness instead of honesty should be read in" (p. 1104).
WIC Radio Ltd. v. Simpson, supra at para. 40
112. This is an objective test, what an honest person would express on the basis of the relevant facts. Here there are no facts.
113. Mr. Ford has led no evidence of corruption in the lease negotiation. No evidence exists. Because Mr. Ford’s allegations are fabrications, he could not have an honest belief in their truth. No person, Mr. Ford included, could express the opinion that corruption occurred. There are no facts to supporting this belief, and, crucially, Mr. Ford did nothing to obtain facts verifying the alleged corruption. Instead, of gathering up facts to support his allegations of criminality, Mr. Ford gathered up talking points to assist his election platform. He then went straight to the media and made his allegations. His statement to the Toronto Sun that he could not pinpoint the corruption or point fingers proves the point that he had no facts. In other words, Mr. Ford told
-30- the voters that Mr. Foulidis had bribed city officials but he could just not prove how. It is respectfully submitted that these facts are the gravamen of Mr. Ford’s misstep. He claims to have an honest belief that corruption occurred but in the same breath explains that he just cannot say how the criminals did it.
(e) Did Mr. Ford Act With Malice?
114. The defence of fair comment is not available where the defendant is actuated by malice: Of course, even if the elements of the "fair comment" defence are established, the plaintiff can still succeed by proving that the defendant was actuated by malice, i.e. for an indirect or improper motive not connected with the purpose for which the defence exists. [Citation omitted] WIC Radio Ltd. v. Simpson, supra at para. 1
115. The Supreme Court of Canada defined the “purpose for which the defence exists” as:
After all, the purpose of the fair comment defence is to protect and encourage free debate on issues of public importance. Opinions published with the primary intention of injuring another person (for example), rather than furthering public debate, are sufficiently far removed from the type of speech the defence was intended to protect that they may justifiably be excluded from the scope of its protection. WIC Radio Ltd. v. Simpson, supra at para. 106
116. Mr. Ford did not act in the furtherance of democratic debate. He did not weigh in on the sole-sourced contact and express an opinion that it was bad for the City, or an improper process to follow. Instead of expressing a passionate opinion on the issue, he portrayed Mr. Foulidis as a criminal. This itself chilled debate on the issue. Anyone wishing to express support for the Tuggs lease or the procedure followed would be forced to side with Mr. Foulidis (alleged by Mr. Ford to be a criminal).
117. Allowing a mayoral candidate to publish false allegations of corruption against a small business owner would in no way “"chill" freewheeling debate on matters of public interest”. Holding a politician accountable for false accusations of criminal corruption is not harmful to democratic debate – such false and scandalous accusations have no place in legitimate debate.
-31- 118. The Supreme Court in WIC Radio Ltd. v. Simpson stated:
An individual's reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to "chill" freewheeling debate on matters of public interest. WIC Radio Ltd. v. Simpson, supra at para. 102
119. Mr. Ford used Mr. Foulidis’ reputation as political “roadkill” in his campaign for public office. This is exactly the kind of conduct that the Supreme Court of Canada has found to be outside the defence of fair comment. It is not fair or reasonable for Mr. Ford to make unsubstantiated criminal allegations against a small business owner who happened to be negotiating a lease using the only process available to him. Mr. Foulidis’ only fault was negotiating with the City while Mr. Ford was campaigning for Mayor.
D. Responsible Communication
120. The defence of responsible communication, usually reserved for journalists and those reporting the news, is advanced by Mr. Ford as an alternative defence. The Supreme Court of Canada established the defence in Grant v. Torstar Corp. To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true. Grant v. Torstar Corp., supra, at para. 33 (S.C.C.)
121. Additionally, according to the Court in Grant v. Torstar Corp., supra, (S.C.C.) the following considerations are relevant to the defence of responsible communication: (a) the seriousness of the allegation (b) the public importance of the matter (c) the urgency of the matter (d) the status and reliability of the source (e) whether the plaintiff’s side of the story was sought and accurately reported (f) whether the inclusion of the defamatory statement was justifiable (g) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth (“reportage”)
-32- (h) any other relevant circumstances
Grant v. Torstar Corp., supra at para. 126
122. Mr. Ford cannot rely on responsible communication. Each of the above factors weighs against him.
123. With respect to the “seriousness of the allegation”, the Supreme Court of Canada stated:
The logic of proportionality dictates that the degree of diligence required in verifying the allegation should increase in proportion to the seriousness of its potential effects on the person defamed. This factor recognizes that not all defamatory imputations carry equal weight. The defamatory "sting" of a statement can range from a passing irritant to a blow that devastates the target's reputation and career. The apprehended harm to the plaintiff's dignity and reputation increases in relation to the seriousness of the defamatory sting. The degree to which the defamatory communication intrudes upon the plaintiff's privacy is one way in which the seriousness of the sting may be measured. Publication of the kinds of allegations traditionally considered the most serious -- for example, corruption or other criminality on the part of a public official -- demand more thorough efforts at verification than will suggestions of lesser mischief. So too will those which impinge substantially on the plaintiff's reasonable expectation of privacy. [Emphasis added] Grant v. Torstar Corp., supra, at para. 111 (S.C.C.)
124. Mr. Ford’s allegations were extremely serious – the most serious allegation he could have made, according to the Supreme Court of Canada. He had a correspondingly serious duty to verify the truth of his statements. He took no steps whatsoever.
125. With respect to the “the public importance of the matter”, the Supreme Court of Canada stated:
Inherent in the logic of proportionality is the degree of the public importance of the communication's subject matter. The subject matter will, however, already have been deemed by the trial judge to be a matter of public interest. However, not all matters of public interest are of equal importance. Communications on grave matters of national security, for example, invoke different concerns from those on the prosaic business of everyday politics. What constitutes reasonable diligence with respect to one may fall short with respect to the other. Where the public importance in a subject matter is especially high, the jury may conclude
-33- that this factor tends to show that publication was responsible in the circumstances. In many cases, the public importance of the matter may be inseparable from its urgency Grant v. Torstar Corp., supra, at para. 112 (S.C.C.)
126. Mr. Foulidis’ lease negotiation was a standard lease negotiation with the City, in which Mr. Foulidis used the only process available to him. He had already gone through an RFP on the original lease. Until Mr. Ford accused Mr. Foulidis of corruption, it was relatively unremarkable. A lease between a restaurant owner and a municipal Council is not a matter of national concern, but the business of everyday politics at City Council.
127. There was no urgency to Mr. Ford’s comments (except that the mayoral election was approaching). In Grant v. Torstar Corp., the Supreme Court stated:
If a reasonable delay could have assisted the defendant in finding out the truth and correcting any defamatory falsity without compromising the story's timeliness, this factor will weigh in the plaintiff's favour. Grant v. Torstar Corp., supra, at para. 113 (S.C.C.)
128. Mr. Ford could have taken his time and verified, or at least attempted to verify, his allegations. He chose not to do so. It is respectfully submitted that the reason he failed to do so rested on the fact that there were no facts that he could have obtained and he knew that to be the case.
129. With respect to the “status and reliability of the source of information”, Mr. Ford has no sources. Mr. Ford is his own (and only) source in this case. He has no other sources, other than what he says he saw with his own eyes. In his evidence, when confronted with his statement “I know exactly what happened” during the July 29, 2010 interviewed by Jerry Agar, Mr. Ford proceeded to, for the first time in three hours of cross-examination, take an about face and tell the court that n fact he had evidence of corruption. He had received that evidence in anonymous communications from payphones. He was forced to say that he knew of the corruption on July 29, 2010 but could not say what it was because he no longer remembered. He also admitted that he no longer remembered just two weeks later when he spoke to the Editorial Board of the Sun.
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130. Nowhere in his statement of defence does Mr. Ford plead any of the details of the corruption and he was unable to provide even one detail of the corruption in his testimony before this Honourable Court.
131. Additionally, as a long-time elected official, Mr. Ford knew or should have known that his comments hold sway with the public. He has a particular status in the City of Toronto; he knew that it was reasonable that his accusations would be believed by the public (and widely broadcast). In fact, it is obvious that Mr. Ford wanted the voting public to believe his statements. He was in a hotly contested lection for Mayor, as he admitted under cross-examination.
132. Mr. Ford took no steps to seek “the plaintiff's side of the story” and accurately report it. According to Mr. Ford, he did not even bother to find out who Mr. Foulidis was before he made his allegations of corruption.
133. With respect to “whether the inclusion of the defamatory statement was justifiable”, Mr. Ford’s allegations of corruption were not necessary for Mr. Ford to express his displeasure with the sole sourced lease agreement. He could have expressed his preference for an RFP; he could have simply conveyed to the citizens of Toronto that the lease was bad for the City and that City Council should not meet in camera. Instead he chose scandalous, false and high-handed language.
134. Councillors Doug Holyday and Brian Ashton opposed the deal, attended at the Council meeting where the vote took place, voted against the lease and publicly stated that it was not in the interests of the City of Toronto to complete the contract as a sole-sourced deal. Mr. Ford, on the other hand, did not attend the Council meeting when the vote took place (see tab 17 of the Joint Book of Documents). When Mr. Ford’s comments concerning corruption were published, Councillor Holyday said the following:
-35- "Untoward is one thing, corruption is quite another matter," Councillor Doug Holyday said. "I think it's a strong term that one would not use unless they could support it." Jonathan Jenkins, “‘Put up or shut up,’ Ford told” Toronto Sun, August 12, 2010, at Tab 53, Joint Document Brief
135. Councillor Holyday also stated:
"Corruption is corruption," he said. "If you have evidence of corruption, I think you have to turn that over." Ibid.
136. Councillor Ashton is quoted as saying:
"There was no information that came forward, that I would deem to suggest there was any corruption," Ashton said. He also said that, at the time, Mr. Ford raised no objections that he could remember along ethical or legal lines. Ibid.
137. Councillor Ashton is also quoted as saying:
"I personally don't recall him asking a lot of detailed questions," Ashton said. "The discussion was around the value for money and not any allegations of corruption."
Ibid.
138. With respect to “whether the defamatory statement's public interest lay in the fact that it was made rather than its truth”, it is clear that the statements in question are not subject to the repetition rule and the reportage exception. This factor therefore weighs against Mr. Ford.
139. The context of this case is another relevant consideration. Mr. Ford is an elected official who acted with callous disregard to Mr. Foulidis and his reputation. The reputation of an innocent business owner should have been at the forefront of Mr. Ford’s mind. Instead he allowed Mr. Foulidis’ reputation to become collateral damage in his attempt to further his own public image and in his pursuit of office.
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140. Mr. Ford knows that there is no evidence of wrongdoing by Mr. Foulidis. He not only refused to apologize but instructed his campaign team to confirm to the public that evidence of Mr. Foulidis’ apparent corruption does exist. He has done so solely for political gain.
141. To compound matters, under cross-examination he stated in one breath that he had no evidence of corruption against Mr. Foulidis and later explained that he, at one time, had evidence of his corruption but just could not remember what it was.
VII. Did Mr. Ford Act with Malice?
142. Malice is commonly understood as spite or ill-will. It also includes “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interest which the occasion created.
See: Hill v. Church of Scientology, supra at para. 145
143. Malice may also be established by showing that the defendant spoke dishonestly or in knowing or reckless disregard for the truth.
Ibid.
144. Mr. Ford was recklessly indifferent to the truth of his allegations. He did nothing to verify the allegations. He made no effort to gather proof of corruption. He made no attempt to determine whom he was targeting with his allegation of corruption. When he was forced to admit under cross-examination that he “knows exactly what happened”, he revealed that he did not know exactly what had happened.
145. No defence can succeed where malice is established. The defences of fair comment and qualified privilege are defeated where the plaintiff demonstrates “express” malice. The defence
-37- of responsible communication cannot be established where the speaker is actuated by malice because malicious comments are not “responsible”.
146. To defeat the defence of qualified privilege, malice must be “express”, defined in Taylor et al. v. Despard et al., [1956] O.R. 963 (Ont. C.A.) as:
Evidence of express malice may be extrinsic or intrinsic. Extrinsic evidence consists of evidence apart from the statements themselves that tends to show that in publishing the statement the defendant was actuated by a motive of personal ill-will or some other improper motive in contrast to a motive inspired by a sense of duty or the mutual interest which the occasion created. Intrinsic evidence is that evidence which the words themselves provide.
Taylor et al. v. Despard et al., [1956] O.R. 963 at para. 20 (Ont. C.A.)
147. The extrinsic evidence in this case establishes malice. Mr. Ford was not motivated out of a desire to inform the public of the truth – the allegations are not true and were shown at trial not to be true. Mr. Ford was not motivated by his duty as a public official – Mr. Ford made the allegations not on the floor of the Council Chamber but directly to the press while on the campaign trail. He made the allegations out of a desire to further his own public image during his election campaign. He accomplished his mission, got himself elected and sacrificed Mr. Foulidis’ reputation in the process.
148. The intrinsic evidence also establishes malice because the words themselves are malicious. Mr. Ford failed to temper his language or be measured in his allegations. He did not say “horse- trading”. Mr. Ford was entitled to take the position that the Tuggs lease was not good for the City of Toronto. He was also entitled to say that the Tuggs deal “stinks to high heaven” if and only if he did not say it in the context of his statement that the deal was corrupt. Instead, Mr. Ford used sensational and high-handed language to accuse Mr. Foulidis, and his fellow Councillors of criminal corruption. Mr. Ford went straight for the jugular and acted without any regard to Mr. Foulidis and his reputation.
149. Allegations made for political gain rather than to convey information to the public are malicious. In Watson v. Gallager, [2000] O.J. No. 2555 (Ont. C.A.), Watson, Gallager (a former
-38- Hamilton Regional Councillor) and a third party were denied access to a politically controversial water treatment plant by Wilson, among others. Mr. Wilson then went to the media with a sensational and inaccurate version of the circumstances of the plaintiff’s attempt to gain access to the facility. The Court of Appeal upheld the trial judge’s decision, finding Wilson liable for defaming the plaintiffs, because of his malice in approaching the media:
The trial judge concluded that the only purpose Mr. Wilson had in visiting the journalist's home on the night of May 9th was to promote sensationalism, expose his political rivals, and attempt to capitalize on a sensitive political issue. This malicious motive removed the defence of qualified privilege and Mr. Wilson was found liable for aggravated damages. Watson v. Gallager, [2000] O.J. No. 2555 at para. 25 (Ont. C.A.)
150. The defence of responsible communication obviates the need for a separate inquiry into malice. A defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly. See: Grant v. Torstar Corp., supra, at para. 125
VIII. The Appropriate Damages
151. The plaintiff asks this court to award substantial general and punitive damages against Mr. Ford.
152. The importance of reputation cannot be understated:
Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited. Hill v. Church of Scientology, supra at paras. 107-108
-39- 153. It is trite law to state that the reputation is of particular importance to professionals and to people who are self-employed.
See e.g. Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at para. 92 (S.C.C.); Hill v. Church of Scientology, supra; Ottawa-Carleton District School Board v. Scharf, [2007] O.J. No. 3030 at para. 28; M.D.A. Marine Design Associates Ltd. v. British Columbia Ferry Services Inc., [2008] B.C.J. No. 2017 (B.C.S.C.)
154. Allegations of corruption are extremely serious, and go to the core of one’s professional reputation.
Young v. Toronto Star Newspapers Ltd., supra at paras. 121 and 108.
A. General Damages
155. The Superior Court of Justice in MacRae v. Santa, [2006] O.J. No. 3852 (Ont. Sup. Crt. J.) adopted Brown’s well known statement that where the words are defamatory, damages are presumed and awarded at large. Harm to reputation is presumed from the mere publication of the defamatory falsehood. The law assumes that the Plaintiff's reputation and character are unblemished until the contrary is proven, which has not been done in this case. Raymond E. Brown, The Law of Defamation in Canada, pages 5-10, quoted in MacRae v. Santa, supra, at para. 34
156. In determining the quantum of compensatory damages, courts have considered the following, among other things:
1. The impact on the Plaintiff 2. The Defendant's conduct before the defamation 3. The Defendant's conduct at the time of publication 4. The Defendant's conduct after publication 5. The Plaintiff's reputation and conduct 6. Any other recovery by the Plaintiff
MacRae v. Santa, supra at para. 35
-40- 157. Mr. Ford’s defamatory comments in the Article have severely impacted Mr. Foulidis’ continuing relationship with the City of Toronto. He has been portrayed as a corrupt and unscrupulous business owner whose success is achieved through bribes and backdoor deals.
158. Mr. Ford behaved in a high-handed and reckless manner in all dealings with Mr. Foulidis. Before the Article, Mr. Ford appeared on a popular radio show and accused Mr. Foulidis of criminal corruption, bribing City officials and funnelling payoffs through campaign contributions.
159. When Mr. Ford went to the Toronto Sun with his allegations of criminal corruption, he verified neither the allegations themselves nor Mr. Foulidis’ identity. He demonstrated complete disregard for Mr. Foulidis and his reputation.
160. After the Article’s publication, Mr. Ford refused to apologize or retract his baseless accusations. Instead, he dispatched his campaign team to further the libel and to mislead the public by stating that evidence of Mr. Foulidis’ apparent corruption does exist and would come out during this lawsuit.
161. Mr. Ford knew or should have known as a long-time politician in the City of Toronto that his allegations would hold sway with the public and garner media attention. He should have known that re-publications and widespread damage to Mr. Foulidis’ reputation and ability to function as a small business owner in the City of Toronto would occur. Mr. Ford acted in a callous, reckless and high handed manner.
162. Mr. Foulidis in negotiating the lease followed the only procedure available to him. In exchange, Mr. Ford smeared his reputation in the popular media. Mr. Foulidis was forced to go public and commence this proceeding to do whatever he could to mitigate the damage Mr. Ford caused to him. Mr. Ford’s reaction was to have the audacity to allege that Mr. Foulidis was motivated by politics, a view he maintained and underscored in this trial.
-41- 163. Had Mr. Ford apologized, Mr. Foulidis would not have launched these proceedings. Mr. Ford refused to apologize or retract his allegations. Instead, Mr. Foulidis was forced to hire legal counsel and pursue the return of his good name through the courts. Mr. Ford refused to even clarify to the media that he was not referring to Mr. Foulidis. Instead, his publicity machine made the internally contradictory statement that Mr. Ford was not referring to Mr. Foulidis but Mr. Foulidis’ corruption would be laid bare in this proceeding.
164. Mr. Foulidis has not recovered damages through any other mechanism.
165. In discussing general damages in Hill v. Church of Scientology, supra, the Supreme Court emphasized that plaintiffs can never really know the extent to which libelous damages have affected their reputation and good character in the community:
This nagging doubt and sense of hurt must have affected him in every telephone call he made and received in the course of his daily work, in every letter that he sent and received and in every appearance that he made before the courts of the province of Ontario. He would never know who, as a result of the libellous statement, had some lingering suspicion that he was guilty of misconduct which was criminal in nature. He would never know who might have believed that he was a person without integrity who would act criminally in the performance of his duties as a Crown counsel. He could never be certain who would accept the allegation that he was guilty of a criminal breach of trust which was the essential thrust of the libel.
Hill v. Church of Scientology, supra at para. 178
166. While the quantum of general damages is notoriously difficult to calculate, the cases discussed in this factum are illustrative:
a. In Hill v. Church of Scientology, the Court awarded general damages against both defendants of $300,000 and Scientology alone was liable for aggravated damages of $500,000 and punitive damages of $800,000.
b. In Young v. Toronto Star Newspaper, supra, the court awarded $90,000 in general damages.
-42- c. In MacRae v. Santa, supra, the court awarded general damages in the amount of $25,000 because the case was at “low end of the range of damages” (at para. 44)
d. In Botiuk v. Toronto Free Press Publications, supra, the trial judge awarded $140,000 in compensatory damages, which included general damages, aggravated damages and the present value of future pecuniary loss, and special damages of $325,000 for loss of income. The Court of Appeal held that since special damages were not specifically pleaded, they could only form a part of the general damage award. It awarded $200,000 in compensatory damages, upheld on appeal to the Supreme Court of Canada.
e. In Grant v. Torstar Corp., supra, the jury found the respondents liable and awarded general, aggravated and punitive damages totalling $1.475 million. A new trial was ordered by the Supreme Court of Canada because of the new responsible communication defence.
f. In Prud'homme c. Prud'homme, supra the Quebec Court of Appeal awarded $58,198 in damages, in a decision overturned by the Supreme Court of Canada.
g. In Walker et al. v. CFTO et al., supra, the jury awarded $883,000 to the corporation, $25,000 to the president, and exemplary damages of $50,000. The Court of Appeal upheld the $25,000 to the president but ordered a new trial on the issue of damages to the corporation because the jury simply awarded $1 for each person who viewed the impugned television program.
h. In Hodgson v. Canadian Newspapers, supra, the trial judge awarded $400,000 in general damages and $100,000 in punitive damages.
167. No measure of damages will adequately compensate Mr. Foulidis. The damage has been done. However, the degree of damage caused by Mr. Ford’s conduct is commensurate with the degree of damage caused to Mr. Justice Hill in the Scientology case.
168. The allegations of criminality are out there. They are notorious. They were notorious before Mr. Foulidis went on the offensive to attempt to mitigate his losses. While Mr. Foulidis
-43- was belittled by the defence for holding a press conference, Mr. Ford can now avail himself of the mitigation undertaken by Mr. Foulidis. But, the doubt will always be there.
B. Punitive Damages
169. The Court in Hill v. Church of Scientology, supra described punitive damages this way:
Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.
Hill v. Church of Scientology, supra at para. 196
170. Mr. Ford’s conduct in defaming an innocent man in the furtherance of his own public image, without ascertaining the plaintiff’s identity or the truth of the allegations was scandalous, high handed and deserving of the censure of this Court. Mr. Ford, when he should have realized his mistake, refused to apologize or retract his allegations and instead continued his character assassination. There must be consequences to those who, like Mr. Ford, are driven to simply say with they please (no matter how outrageous or damaging) with no regard to the consequences for those implicated in their very public fabrications. As stated by the Supreme Court:
Punitive damages can and do serve a useful purpose. But for them, it would be all too easy for the large, wealthy and powerful to persist in libelling vulnerable victims. Awards of general and aggravated damages alone might simply be regarded as a licence fee for continuing a character assassination. The protection of a person's reputation arising from the publication of false and injurious statements must be effective. The most effective means of protection will be supplied by the knowledge that fines in the form of punitive damages may be awarded in cases where the defendant's conduct is truly outrageous.
-44- Ibid.
171. This is clearly an appropriate case for punitive damages. Given the allegations made by Mr. Ford, the position he was in as a candidate for Mayor when he made the spurious allegations, and the vulnerability of Mr. Foulidis as an ordinary citizen, the punitive damage award should be high to send a clear and unequivocal message to Mr. Ford and other politicians that they enjoy the freedom to engage in lively debate when they are running for elected office but they do not enjoy the freedom to falsely accuse citizens of corruption.
C. Aggravated Damages
172. Because of Mr. Ford’s malice in this case, the Court may decide to award the plaintiff aggravated damages. Mr. Foulidis respectfully submits that aggravated damages are an appropriate remedy in this case.
Hill v. Church of Scientology of Toronto, supra at para. 190
PART IV: ORDER REQUESTED
1. The plaintiff asks that this Honourable Court to award to the plaintiff general damages concomitant with those in Hill v. Church of Scientology. 2. The plaintiff also requests that this Honourable Court condemn Mr. Ford to pay his substantial indemnity cost of the action.
Date: November 19, 2012 ALL OF WHICH IS RESPECTFULLY SUBMITTED,
______RUBY SHILLER CHAN HASAN Brian G. Shiller/Angela M. Chaisson Lawyers for the Plaintiff
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