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1- Court File No. CV-10-411851 ONTARIO SUPERIOR COURT OF

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1- Court File No. CV-10-411851 ONTARIO SUPERIOR COURT OF 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 -1- 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.
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