In the end, it became simple: Toronto Mayor Rob Ford successfully defended a much publicized libel action as a result of the trial judge's careful application of fundamental principles of libel law to the actual words in issue.
In Foulidis v. Ford,1 the plaintiff, a Toronto businessman, sued Mayor Ford over statements he made to the editorial board of the Toronto Sun during the 2010 Toronto mayoralty campaign. Although the plaintiff claimed damages based on the Sun's republication of the statements, only Mayor Ford was sued.
Mayor Ford's statements to the Sun referred to a city award on an untendered basis of a 20 year contract to a company with which the plaintiff was associated. Mayor Ford referred to an in camera meeting to discuss the contract, saying "these in camera meetings, there's more corruption and skullduggery going on in there than I've ever seen in my life. And...if [the company's name] isn't, I don't know what is. And I can't accuse anyone, or I can't pinpoint it, but why do we have to go in camera...?" He went on to ask rhetorically, "if that [company's name] deal doesn't stink to high heaven..."
Justice John Macdonald concluded that Mayor Ford's words failed to disclose the essential elements of the plaintiff's libel case. To prove a prima facie case in libel, a plaintiff need establish three elements: first, that the words refer to the plaintiff; second, that the words have been published to a third party; and third, that the words complained of are defamatory of the plaintiff, in the sense that they would tend to lower the reputation of the plaintiff in the estimation of reasonable persons. These elements being established, the law presumes the words are false and that the plaintiff has suffered general damages.2 It then falls to the defendant to establish a defence, such as justification (truth), absolute or qualified privilege, or fair comment, among others.
The issue of publication was incapable of dispute: having spoken to the Sun on the record, Mayor Ford was legally responsible for the Sun's republication of his words.3 Justice Macdonald found, however, that the plaintiff had not established a prima facie case because the words spoken by Mayor Ford were not defamatory of the plaintiff, and did not refer to the plaintiff personally. The plaintiff having failed to establish two of the three essential elements of a libel claim, Justice Macdonald held that there was no need to consider any of the defences pleaded by Ford, and dismissed the plaintiff's action.
On the issue whether Mayor Ford's words were defamatory, Justice Macdonald applied the longstanding principle that the meaning of words alleged to be libelous is that which would be conveyed to "the ordinary, reasonable, fair-minded reader",4 who is not naïve, unduly suspicious or avid for scandal.5 Justice Macdonald also applied the established principle that words alleged to be libelous are to be considered as a whole. This means that if in one portion of the words the plaintiff is defamed and in another the defamation is neutralized, the "bane and the antidote" must be taken together and there is no actionable defamation.6
After a careful consideration of Mayor Ford's words as a whole, the pivotal consideration for Justice Macdonald was Mayor Ford's statement to the Sun that while he was concerned about the possibility of civic corruption, he said, "I can't accuse anyone" and "I can't pinpoint it". Justice Macdonald concluded:
The words in issue leave no doubt about their meaning, when read reasonably and in their context. The defendant voiced only a suspicion of corruption which he, immediately and in clear terms, admitted was without factual foundation or insufficient for him to be able to say that anyone had done anything wrong. In my opinion, he clearly and explicitly prevented any defamatory meaning being perceived in his suspicion of corruption.7
On the issue whether Mayor Ford's words referred to the plaintiff personally, Justice Macdonald again returned to a fundamental principle of libel law: since an action for libel is based upon injury alleged to have been caused to the plaintiff by the publication of defamatory words, it is essential that the words complained of refer to the plaintiff personally.8
In his statements to the Sun, Mayor Ford referred only to the name of the company with which the plaintiff was associated. He did not refer to the plaintiff by name. Justice Macdonald found that while the plaintiff was known to be a person who acted on behalf of the named company, he did not prove that that he was the only or primary person who did so.9 He also found that any reference to the plaintiff personally was again undermined by Mayor Ford's clear statement that he was not blaming or charging any person with fault.10 As a result, Justice Macdonald held that "the words in issue, read reasonably and in context, do not refer to [the plaintiff] because they do not refer to any person".11
It remains to be seen whether Justice Macdonald's interpretation of Mayor Ford's words will be debated again in the Court of Appeal. It remains that Foulidis v. Ford is an instructive reminder that when considering any libel matter, a careful consideration of fundamental libel principles, and the words complained of as a whole, is always essential.
Footnotes
1. 2012 ONSC 7189, released December 27, 2012.
2. Grant v. Torstar Corp., 2009 SCC 61 at para. 28, per McLachlin C.J.; WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420 at para. 1, per Binnie J.
3. 2012 ONSC 7189 at para. 9.
4. Charleston v. News Group Newspapers Ltd., [1995] 2 A.C. 65, at 71, per Lord Bridge (H.L.).
5. Bonnick v. Morris, [2003] 1 A.C. 300 at para. 9, per Lord Nicholls (P.C.).
6. Charleston et al. v. News Group Newspapers Ltd., [1995] 2 A.C. 65 at 70, 72, per Lord Bridge (H.L.).
7. 2012 ONSC 7189 at para. 44.
8. Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 at 118-19, per Viscount Simon (H.L.).
9. 2012 ONSC 7189 at para. 35.
10. 2012 ONSC 7189 at para. 36.
11. 2012 ONSC 7189 at para. 36.
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