Thursday, September 16, 2010

Toronto Mayoral Candidate Rob Ford To Be Sued For Libel?

It is alleged that Ford has repeatedly asserted during the mayoral campaign that Tuggs Inc., Foulidis' family business, improperly influenced city politicians to obtain an exclusive vending contract for a Beaches-area restaurant.

Canadian libel law differs from American libel law in that proof of malicious intent is not required to successfully prove defamation. In the USA, the "proof of malicious intent" standard requires that an alleged libeler be reckless or actively negligent in the course of investigations related to the defamatory statement.

The Supreme Court of Canada rejected this standard in Hill v. Church of Scientology in 1995, and maintained the Canadian standard, which requires demonstration only that the statement lowered the public esteem of the allegedly defamed individual. (However, we have since adopted a parallel "responsible communication" defense, as noted below.)

If lowering of public esteem can be successfully proven, a defendant in a libel proceeding may rely upon the following defenses:
  1. Justification. This is pretty straightforward: the defendant demonstrates that the impugned statement was true. A true statement, by definition, cannot be libelous. (This is why Foulidis, in his press statement, challenged Rob Ford to prove his assertions; if Ford could do so, the action would not commence.)
  2. Fair comment. The defendant demonstrates that the statement, rather than being an assertion of fact, was an assertion of opinion. For example, if I said that I believe George Clooney is a horrible actor, and Clooney then sued me for libel, I would defend myself by saying "I wasn't asserting Clooney's horribleness as fact. I was merely stating my opinion of Clooney's acting." (P.S.: George Clooney is in fact a terrific actor and seems like he would be fun to hang out with.)
  3. Privilege. Since Rob Ford did not deliver his comments while under oath in a court of law, he can't use this defense.
  4. Responsible communication. This is the newest of libel defenses, established at common law by the Supreme Court in Grant v. Torstar Corporation last year. It allows a defense if the defendant undertook to communicate on a matter of public interest, in a responsible and diligent manner, bearing in mind such factors as the importance of making the statement, the urgency of the issue, the reliability of the source of information, and whether the Defendant sought out and reported on the Plaintiff's side of the story.
- Christopher Bird, Toronto

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