Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com
The Fouldis v. Ford libel decision was published today in the ORs. Justice MacDonald dismissed the complaint, finding there was insufficient evidence to link Mr. Fouldis to Tuggs Inc. – the entity about which Ford made his comments. MacDonald, J. also found Ford’s statements were not libelous.
In a 2010 interview with the Toronto Sun, Mayor Ford (then a candidate for mayor) stated that a 20-year untendered contract between Tuggs Inc. and the City of Toronto “stinks to high heaven”.
Rob Ford stated that in camera decisions on untendered contracts allow for “corruption and skullduggery” and “if Tuggs isn’t, I don’t know what is.” He also qualified his statements by adding “I can’t accuse anyone, or I can’t pinpoint it, but why do we have to go in camera on a Tuggs deal?”
MacDonald J. began his analysis with a consideration of whether Mr. Ford’s statements about “Tuggs” could be understood to refer to George Fouldis. The plaintiff argued that he was sole shareholder and owner of Tuggs, Inc., but the evidence of that was insufficient. The corporate profile report listed his brother as officer and director and on cross-examination, it came out that Tuggs was transferred to Fouldis’ brother fraudulently to assist their mother to avoid a judgment creditor. The court determined Mr. Tuggs lacked credibility and rejected other testimony that he was Tuggs’ sole owner. The court determined Mr. Fouldis was merely one of several people associated with Tuggs. As such, Ford’s comments were not libelous of Fouldis.
Starting at paragraph 37 of the decision, the court held that Ford’s words were not in and of themselves defamatory. A statement of suspicion may be libelous, but it is not necessarily so. In this case, Ford qualified his statements by stating he was not accusing anyone of anything. The court determined a reasonable person would have read Ford’s comments in their entirety and concluded that Ford had no factual basis for questioning the contract and was merely voicing suspicions about in camera proceedings.
While I thought the Magder v. Ford conflict-of-interest decision was wrongly decided, I was persuaded by MacDonald, J.’s reasoning in this case. Ford was talking about Tuggs and “Tuggs” was not synonymous with George Fouldis. And if “Tuggs” did refer to the plaintiff, I would not have liked to see a decision that chills political candidates from questioning dealings between the government and private businesses.
Ford asked questions about the Tuggs deal and he was close enough to the line that he got sued. But there’s a legitimacy to Ford’s questions that should not be silenced. He did not actually say the City went in camera in order to strike a corrupt deal. Rather, he seemed to be saying that the lack of transparency with an in camera deal might allow for corruption.
I happen to agree with Mayor Ford’s original point. He might have phrased it better, but in the circumstances, I think it was appropriate to cut him some slack.
Today in Toronto, people are raising lots of questions about government dealing with developers, casino lobbyists, and contractors doing work for the TDSB. These questions ought to be raised and we cannot set the bar so high as to disallow sloppy speech.