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Focus: Lessons from Ford defamation case

Questions raised over choice of plaintiff, defendant
|Written By Judy van Rhijn

The mayor of Toronto has long been making news in the courts with more recent cases involving the failure of an appeal against a decision that found Rob Ford not liable for defamation.

Foulidis v. Ford caught the attention of the public because of the personalities involved, but it’s the legal community that will have to live with any long-term effects of the decision and its companion case, Foulidis v. Baker, published on July 8.

The cases arose out of comments made by Ford and Bruce Baker, both candidates in the 2010 municipal election, regarding untendered service contracts. The contract included a 20-year lease granted to the Foulidis family company, Tuggs Inc., to operate a restaurant and sell food along the beach in the city’s east end. Ford and his brother Doug made comments in an interview published in the Toronto Sun. Baker sent a confidential letter to city councillors referring to the article and a letter from another resident of the Beach neighbourhood that made allegations of corruption. George Foulidis, who had been responsible for negotiating the contracts, brought two actions for libel.

What has puzzled the courts and some of those following the case is the limited number of plaintiffs and defendants involved. The Court of Appeal commented: “In the end, we are left with a lone and puzzling plaintiff, George Foulidis. Where is Tuggs Inc.? We are also left with a lone and puzzling defendant, Robert Ford. Where is the Toronto Sun or even Doug Ford who said in the same interview: ‘How about a 20 year untendered bid at a lower cost and then you find out the owner’s contributing to the guys who are voting for him?’ Viewed in context, it cannot be said that the trial judge erred by concluding that Mr. Foulidis was not the target of Mr. Ford’s words.”

Brian Radnoff, a commercial litigator and defamation lawyer at Lerners LLP, says the decision emphasizes the importance of suing the right party. “The court is at pains to point out that it was not commenced against Doug Ford and the Toronto Sun whose comments did appear to relate to Mr. Foulidis and did appear to be defamatory. No one knows why they didn’t sue them. This is a good example of needing to sue the right person and needing the right plaintiff. It might have been a better case if the parties had been different.”

Gil Zvulony, a defamation lawyer in Toronto, feels there was a sufficient overlap of facts between the comments of the Ford brothers to have allowed for multiple parties. “It would have been a natural choice. The Court of Appeal did mention Doug Ford, but the case was about Rob Ford attacking George Foulidis, and the court found that he didn’t.”

Gavin Tighe, who represented Ford and Baker, made comments in his opening statement that it was a rare libel case where the newspaper wasn’t a defendant. Zvulony notes damages for corporations in defamation are much smaller than for individuals. “Corporations don’t lose sleep over their reputations. There’s no such thing as hurt feelings.”

Tighe agrees. “Libel law is akin to a personal injury, where the court will assess damages at large. It’s hard to decide how much pain and suffering is worth. In the case of a corporation, it’s dollars and cents. You must prove the actual loss.”

Zvulony believes not having Tuggs named as a plaintiff caused problems for Foulidis. “Foulidis had to prove that when you speak about Tuggs you speak about Foulidis, and he didn’t. The evidence was that Rob Ford didn’t know who Foulidis was. If the case was Tuggs Inc. v. Doug Ford, it may be the decision would have been different.”

Andrea Bolieiro, who appeared as co-counsel with Paul Pape for Foulidis, sheds some light on the approach in the case. While she notes the decisions on how to proceed came at an early stage of the litigation, she believes they ultimately were reasonable. “Mr. Foulidis did what most plaintiffs and trial counsel do not do. He gave great thought to how he could focus the litigation to the main issue, and the main person was Rob Ford. He didn’t go on the warpath and stake claims against anyone and everyone involved. I would have thought that was something that the court would want to reward, not punish. That is the main weakness in this decision.”

With respect to the failure to include Tuggs, Bolieiro explains that defamation is all about reputation. “In particular in this case, the defamatory statements were about a leasing deal and negotiation that were said to be corrupt. It is not Tuggs, a company, that negotiates. It’s a person on behalf of Tuggs. It is not the reputation of the company that is affected. It’s the reputation of the person responsible for the negotiation that’s affected. The statement was going to lower the reputation of an individual.

Also, when you’re talking about seeking damages, it was the right decision.”

With respect to the Toronto Sun, Bolieiro believes the defence of responsible communication, an issue that arose in the Baker case, would have defeated the claim.

“The judge said that Baker could not rely on the responsible communication defence,” says Radnoff. “Since the Supreme Court in Grant v. Torstar Corp., defendants in several cases who are not media have attempted to use it. This is the clearest decision at trial level that the defence is not available if you are not a member of the media and it was confirmed on appeal. It is not a defence of general application.”

When it comes to the possible defendants, Bolieiro notes there was no malice in the choice. “First and foremost, the allegations that it was a SLAPP [strategic litigation against public participation] suit against Rob Ford were completely rejected by the trial judge in the application on costs. There were reasons that parties were not added because of time limitations but there were also choices made to limit the lawsuit. We believe defamatory statements were used as a tool in Rob Ford’s political campaign.

Doug Ford made statements supporting his brother’s campaign, but Rob Ford was really leading the charge.”

Although neither case was revolutionary in legal terms, Tighe believes they have made an impact. “Both cases, because of their notoriety, have raised awareness and public perception of defamation and libel. It is a rare civil trial that the public follows, except on television shows.”

Note: Correction made to attribution in seventh and third-last paragraphs. Zvulony made the comment about damages against corporations and Radnoff made the statement about the defence of responsible communication.

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