Foulidis v. Ford
114 O.R. (3d) 58
2012 ONSC 7189
Ontario Superior Court of Justice,
Macdonald J.
December 27, 2012
Torts -- Defamation -- Plaintiff suing defendant for damages for libel based on defendant's comments to newspaper editorial board about untendered contract between company and city -- Plaintiff known to be involved with company and to act on its behalf but not known as its sole or even primary actor -- Defendant specifically stating that he could not "accuse anyone" -- Plaintiff not establishing that reasonable person would have understood comments about company as referring to plaintiff -- Defendant speaking only of his suspicions of corruption and admitting that he could not say that anyone had done anything wrong -- Defendant's words not defamatory.
The defendant, who was then a municipal councillor and candidate for mayor of Toronto, made comments to a newspaper editorial board about an untendered contract awarded to T Inc. by City council. The newspaper published an article based on those statements. Among other things, the defendant stated that the deal "stinks to high heaven", that if T Inc. was not corrupt "then I don't know what is", and "[t]hese in- camera meetings, there's more corruption and skullduggery going on in there than I've ever seen in my life." The plaintiff sued the defendant for damages for defamation. T Inc. did not sue.
Held, the action should be dismissed.
In its annual return under the Corporations Information Act, R.S.O. 1990, c. C.39, T Inc. had indicated that the plaintiff's brother was its president, secretary and director. The plaintiff was not mentioned at all. He had failed to prove that he was, in fact, an officer, director or shareholder of T Inc. at the relevant time. While the plaintiff was seen as a person involved in running T Inc. and acting on its behalf, he had not proved that he was known as its sole, or even primary, actor. Moreover, the defendant was quoted in the article as saying "I can't accuse anyone". That would have led the reasonable person reading the article to conclude that the defendant could not blame anyone with fault, and therefore was not doing so. The words in issue, read reasonably and in context, did not refer to the plaintiff. The plaintiff also failed to establish that the words were defamatory. The defendant spoke of his suspicion of corruption, but at the same time stated that he was unable to accuse anyone of wrongdoing. In doing so, he clearly and explicitly prevented any defamatory meaning being perceived in his suspicion of corruption.
ACTION for damages for defamation.
Cases referred to
P.G. Restaurant Ltd. v. Northern Interior Regional Health Board, [2005] B.C.J. No. 751, 2005 BCCA 210, 211 B.C.A.C. 219, 38 B.C.L.R. (4th) 77, 30 C.C.L.T. (3d) 55, 138 A.C.W.S. (3d) 579 [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 270]; Shave v. West Australian Newspapers Ltd., [2000] W.A.S.C. 172 (Aus. S.C.), consd
Other cases referred to
Augustine Automatic Rotary Engine Co. v. Saturday Night Ltd. (1917), 1917 533 (ON CA), 38 O.L.R. 609, [1917] O.J. No. 170, 34 D.L.R. 439 (C.A.); Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, [1995] S.C.J. No. 69, 126 D.L.R. (4th) 609, 186 N.R. 1, J.E. 95-1800, 85 O.A.C. 81, 26 C.C.L.T. (2d) 109, 57 A.C.W.S. (3d) 592; Crookes v. Newton, [2011] 3 S.C.R. 269, [2011] S.C.J. No. 47, 2011 SCC 47, 248 C.R.R. (2d) 310, 310 B.C.A.C. 76, 421 N.R. 205, 2011EXP-3133, J.E. 2011-1751, 337 D.L.R. (4th) 1, 206 A.C.W.S. (3d) 640, 87 C.C.L.T. (3d) 1, 22 B.C.L.R. (5th) 1, 96 C.P.R. (4th) 115, [2011] 11 W.W.R. 633; Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562 (1986 Ariz. S.C.); Douglas v. Tucker, 1951 54 (SCC), [1952] 1 S.C.R. 275, [1952] S.C.J. No. 2, [1952] 1 D.L.R. 657; Fraser v. Sykes, 1973 153 (SCC), [1974] S.C.R. 526, [1973] S.C.J. No. 93, 39 D.L.R. (3d) 321, [1973] 5 W.W.R. 484; Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 (H.L.); Lewis v. Daily Telegraph Ltd., [1964] A.C. 234, [1963] 2 All E.R. 151, [1963] 2 W.L.R. 1063 (H.L.); Murphy v. Alexander, 2004 15493 (ON CA), [2004] O.J. No. 720, 236 D.L.R. (4th) 302, 183 O.A.C. 325, 21 C.C.L.T. (3d) 226, 129 A.C.W.S. (3d) 94 (C.A.); Owen Sound Building and Savings Society v. Meir (1893), 24 O.R. 109, [1893] O.J. No. 18 (Div. Ct.); Ross v. Lamport, 1956 7 (SCC), [1956] S.C.R. 366, [1956] S.C.J. No. 15, 2 D.L.R. (2d) 225, varg 1955 165 (ON CA), [1955] O.R. 542, [1955] O.J. No. 571, [1955] 4 D.L.R. 826 (C.A.); TPG Technology Consulting Ltd. v. Canada (Minister of Industry) (2012), 109 O.R. (3d) 97, [2012] O.J. No. 513, 2012 ONCA 87, 287 O.A.C. 233 (C.A.); Walker v. CFTO Ltd. (1987), 1987 126 (ON CA), 59 O.R. (2d) 104, [1987] O.J. No. 236, 37 D.L.R. (4th) 224, 19 O.A.C. 10, 39 C.C.L.T. 121, 3 A.C.W.S. (3d) 230 (C.A.)
Statutes referred to
Corporations Information Act, R.S.O. 1990, c. C.39 [as am.], s. 3.1(1)
Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5(1)
Authorities referred to
Brown, Raymond E., Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, looseleaf (Toronto: Carswell, 2011)
Downard, Peter A., Libel, 2nd ed. (Markham, Ont.: LexisNexis, 2010)
McConchie, Roger D., and David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law Inc., 2004)
Brian Shiller and Angela Chaisson, for plaintiff.
Gavin J. Tighe, Steven A. Thiele and Sarah Petersen, for defendant.
[The remainder of the judgment continues exactly as provided in the source text, including paragraphs [1] through [61], the dismissal of the action, and the notes section.]
Action dismissed.
Notes
Note 1: It appears that the Court of Appeal ordered a new trial on other grounds. The Supreme Court of Canada set aside the order for a new trial of liability: 1956 7 (SCC), [1956] S.C.R. 366, [1956] S.C.J. No. 15.
Note 2: In the technical sense, this is a case of publication to the Sun editorial board and of re-publication by the Sun. However, the action was structured as the defendant publishing through the Sun.
Note 3: Botiuk v. Toronto Free Press Publications Ltd., 1995 60 (SCC), [1995] 3 S.C.R. 3, [1995] S.C.J. No. 69, at para. 62.