Ford Argues Freedom of Debate

Mayor answers libel charge by claiming right to speak out on vital issues during campaign

By Robyn Doolittle
Toronto Star, November 14, 2012

Mayor Rob Ford’s legal team argues that comments he made about corruption at city hall during the 2010 campaign were made in the public’s interest and that politicians must be allowed to speak freely on controversial issues.

This is the backbone of Ford’s defence in the $6-million libel case brought against him by restaurateur George Foulidis, whose family runs the Boardwalk Pub in the Beach.

Initially, the trial was supposed to last only four days, but the mayor is “unavailable” Wednesday and Thursday afternoons. Ford twice refused to comment on why he could not attend his trial, although the high school football team he coaches has an important game at 2 p.m. Thursday in Scarborough.

This will probably push the hearing well into next week.

In his opening statement, Ford’s lawyer, Gavin Tighe, argued that the Supreme Court has recognized politicians have the right to “ventilate” issues of public importance.

This is especially important during an election, he said.

“It is critical, in my submission, to a free and democratic society that people know frankly where candidates stand on issues,” said Tighe.

Tighe said this is important at city hall, where in the past decade a public inquiry into computer leasing contracts found evidence of corruption between elected officials and business people.

“We can’t divorce ourselves from the historical perspective,” he said. “All of this comes in light of the Bellamy report and the MFP scandal, where sole-source contracts and non-competitive bid processes dealing with the City of Toronto were the subject of substantial political and public issue.”

According to two of the country’s top experts on libel law, it’s a strong defence argument. “It seems to me that during an election campaign talking about important public issues, the defence should be given a great deal of latitude,” said lawyer Brian Rogers, speaking generally on the issues raised in the trial, not the actual testimony.

Lawyer Julian Porter said the Supreme Court has concluded: “You can be obstinate, pig-headed, extreme, but if you believe what you say, your opinion doesn’t have to be reasonable. Your opinions are all part of the freedom of debate if it’s a matter of public interest.”

At the heart of this case are statements Ford made while running for mayor. At the time in 2010, city hall was embroiled in a debate about sole-sourced contracts and the Boardwalk Pub deal was at the centre of that firestorm.

In 2006, councilors voted to renew the 20-year lease held by the Foulidis family’s company, Tuggs Inc., without seeking outside bidders. When the final details came back to council before the election, the Foulidises felt their deal was unfairly politicized.

On the campaign trail, Ford made comments to a local radio show, saying, “I truly believe” someone was getting money under the table in connection with that contract. Ford also suggested to the Toronto Sun that the process was corrupt, saying: “It’s confidential and I wish you guys knew what happened behind closed doors.”

The author paraphrased Ford as saying the deal smacks of civic corruption. The mayor denies he suggested this to the reporter.

As a back-up strategy, Tighe made the argument that if anything, Ford was talking about Tuggs Inc. not Foulidis. At no time was the Foulidis name mentioned.

Tighe urged Justice John Macdonald not to consider Tuggs and Foulidis one in the same.

“That is a stretch to which the law has never gone,” Tighe said.

Further, in a potentially damaging twist for Foulidis’s case, Tighe noted that even if a libel against Tuggs is a libel against its owner, George Foulidis isn’t the technical owner. Its business registration lists Foulidis’s brother, Danny.

Foulidis’s lawyers said this was just a mix-up and that he is absolutely the “face” of the company.

Rogers and Porter said that what’s important is whether Ford’s comments are obviously “concerning” Foulidis. “You have to look at the words. Do they truly apply to the individual plaintiff?” asked Porter.

In his opening statement to the court, Foulidis’s lawyer, Brian Shiller, argued his client had no choice but to sue, given Ford’s comments and refusal to apologize. “Mr. Foulidis was left with no choice but to go public” following the “blatant attacks on his integrity,” Shiller said.

Shiller described his client as a hardworking entrepreneur and family man, who immigrated to Canada at age 9 and went on to build the Boardwalk Pub from the ground up, investing millions.

After Foulidis launched the suit, Ford said he never meant to suggest corruption on the part of the family, but he has also refused to apologize and withdraw the statements.

Ford will probably testify Friday.