



COURT OF APPEAL FOR ONTARIO

CITATION: Foulidis v. Ford, 2014 ONCA 530

DATE: 20140708

DOCKET: C56537

MacPherson, Watt and Benotto JJ.A.

BETWEEN

George Foulidis

Plaintiff (Appellant)

and

Robert Ford

Defendant (Respondent)

Paul J. Pape and Andrea M. Bolieiro, for the appellant

Gavin J. Tighe and Stephen Thiele, for the respondent

Heard: May 20, 2014

On appeal from the judgment of Justice John A. B.
    MacDonald of the Superior Court of Justice, dated December 27, 2012, with
    reasons reported at 2013 ONSC 7189, 114 O.R. (3d) 58, and the costs order dated
    June 10, 2013, with reasons reported at 2013 ONSC 2787.

MacPherson
    J.A.:

A.

INTRODUCTION

[1]

During a municipal election campaign in 2010, Councillor Robert Ford, a
    candidate for mayor of the City of Toronto, was interviewed by the editorial
    board of the Toronto Sun newspaper.  In the interview, Mr. Ford made critical
    comments about a City contract with a restaurant on City property.

[2]

George Foulidis was involved in the operation of the restaurant.  He
    sued Mr. Ford for libel.

[3]

After a six-day trial, J.A.B. Macdonald J. of the Superior Court of
    Justice dismissed Mr. Foulidis action.

[4]

Mr. Foulidis appeals.  His appeal raises two main issues: was Mr. Foulidis
    the target of Mr. Fords remarks, and were the remarks defamatory?

B.

FACTS

(1)

The parties and events

[5]

In the summer of 2010, Mr. Ford had been a city councillor for Ward 2,
    Etobicoke-North, for almost 10 years.  He was a candidate for the position of
    Mayor.  His platform called for greater accountability and transparency at City
    Hall and fewer in-camera sessions and back-room deals.

[6]

The corporation Tuggs Incorporated (Tuggs) owned and operated the
    Boardwalk Pub and concessions in the Beaches area of Toronto.  The restaurant
    was on City property.  It was built and operated pursuant to a 20 year lease
    with the City commencing in 1987.

[7]

George Foulidis was not an officer or director of Tuggs.  His brother
    Konstantinos was the President, Secretary and a director of Tuggs from 1993 to at
    least 2011.  However, George Foulidis was involved in the operation of the
    restaurant.

[8]

George Foulidis took the lead in attempting to negotiate an extension of
    the lease beyond 2007.  He dealt with the relevant City authorities from 2006
    to 2010.

[9]

On May 12, 2010, City Council voted to approve the Tuggs lease for
    another 20 years.  The contract that flowed from this vote was sole-sourced and
    untendered.  On June 2, 2010, Mr. Foulidis signed the new lease on behalf of
    Tuggs.

[10]

The
    Tuggs deal with the City was controversial because of its sole-sourced,
    untendered nature.  Through the late spring of 2010, the deal attracted a
    substantial amount of media attention.

[11]

On
    August 10, 2010, Mr. Ford, and his brother Doug Ford, met with the editorial
    board of the Toronto Sun to discuss his campaign.  The meeting lasted about 75
    minutes.  A 30 page transcript was prepared.  Mr. Ford was asked about the
    Tuggs-City deal.  This part of the interview covers less than one page of the
    transcript.  The relevant parts are:

Q:      Rob, you I think I spoke with you yesterday,
    there are a number of things being rammed through at the next City Council
    meeting, um, you know, you know Ive written about the Foulidis contract. 
    There are a number of other things leasing deals which Ill be writing about. 
    All kinds of um, things.  Um, first of all how do you feel about that and
    second of all, as Mayor, I mean is it possible for you to undo any of this
    stuff, after the fact?

ROB FORD: Absolutely.  Absolutely it is. Let me ask
    you one question, how did David Miller get elected?

Q:      On a bridge.  On a bridge.

ROB FORD: Thats exactly how he got it.  The $2
    bridge that ended up costing millions.  And so, he said that you can undo
    anything thats been done.

Q:      The Foulidis deal?

ROB FORD: Wha On the Tuggs?

Q:      Yes.

ROB FORD: Absolutely.  Its in camera, obviously, its
    confidential, I wish that you guys knew what happened in camera, which a lot of
    you do, obviously, but these in camera meetings, theres more corruption and
    skullduggery going on in there than Ive ever seen in my life.  Andand if
    Tuggs isnt, I dont know what is.  And I cant accuse anyone, or I cant
    pinpoint it, but why do we have to go in camera on a Tuggs deal?

DOUG FORD:       There is a culture of corruption
    down there and were going to put an end to it.

ROB FORD: So, I wish, I wish I could tell you the
    stuff thats happened behind closed doors.  The things the media does not know.



ROB FORD: So, a lot of these issues sorry Andy  A
    lot of these issues dont have to go in camera.  And if that Tuggs deal doesnt
    stink to high heaven II.

DOUG FORD:       How about a 20 year untendered bid
    at a lower cost and then you find out the owners contributing to the guys who
    are voting for him.



ROB FORD: Thats illegal.  You call the police to
    investigate that.

[12]

Two
    days after the interview, the Toronto Sun published a news story relating to it
    written by reporter Jonathan Jenkins:

Contract for Beaches eatery
    stinks to high heaven





JONATHAN JENKINS
City
    Hall Bureau

City councils decision to award
    an untendered, 20-year contract to Boardwalk Pub operator Tuggs Inc. smacks of
    civic corruption, Councillor Rob Ford says.

If Tuggs isnt, then I
    dont know what is, Ford told the
Toronto Suns
editorial board.

I cant accuse anyone
    or I cant pinpoint it, but why do we have to go in-camera on the Tuggs deal?

These
    in-camera meetings, theres more corruption and skullduggery going on in there
    than Ive ever seen in my life.

Tuggs owner
    George Foulidis did not respond to requests for comment from the
Sun
.

Sandra Bussin,
    the local councillor who has defended Tuggs in the past recused herself form
    the most recent vote on the contract in June, also declined to comment.

Both were provided with a
    transcript of Fords remarks by email.

Bussin
    received more than $12,000 from Foulidis and people associated with him in
    campaign contributions in 2003 and 06.

City staff had
    recommended putting the food and drink concession at the eastern Beaches up for
    public tender after Tuggs first contract expired but councillors opted instead
    to negotiate with the firm.

A belated
    attempt to re-open the deal at councils June meeting failed to get the
    necessary two-thirds support.

Its
    confidential and I wish you guys knew what happened in-camera, Ford said.  I
    wish I could tell you the stuff that happens behind closed doors.

He said the
    Tuggs deal stinks to high heaven and if he is elected mayor on Oct. 25  he
    told the
Sun
hes now leading the race with 35% support, according to
    his campaign polls  he might try to break the contract.

You can undo
    anything thats been done, Ford said.  If its going to save (money) in the
    long run, then Im going to do it.  If theres a short-term cost for a
    long-term gain, then thats whats going to happen.

Doug Ford, Robs brother and
    campaign manager who is also running for council in Ward 2, said the system at
    City Hall is broken.

Theres a
    culture of corruption down there and were going to put an end to it, Doug
    said.

If this was
    Chicago or anywhere in the States, theyd be in front of a grand jury and
    theyd be indicted and theyd be in jail right now.

He said its unthinkable that a private business would agree to a
    10-year lease, let alone a 20-year lease, for such a business.




[13]

On
    October 6, 2010, Mr. Foulidis issued a Statement of Claim in which the
    principal claim was that Mr. Fords words were false and defamatory.

(2)

The trial judgment

[14]

The
    trial judge dismissed the action.  He said that Mr. Foulidis needed to prove
    four things on the balance of probability to prove libel in this case: (1) Mr.
    Ford spoke the words in issue; (2) Mr. Ford published the words in issue to one
    or more third parties; (3) the words in issue referred to Mr. Foulidis; and (4)
    the words in issue were defamatory of Mr. Foulidis.

[15]

The
    trial judge recorded that the first two propositions were not in issue.  Mr.
    Ford accepted the accuracy of the words attributed to him and he gave the
    interview to the Toronto Sun in the context of his mayoral campaign, knowing
    that his words would be published.

[16]

The
    trial judge held that Mr. Foulidis had not proved the third and fourth
    propositions.

[17]

With
    respect to the third proposition, the trial judge applied the relevant two-part
    test: (1) were Mr. Fords words capable of referring to Mr. Foulidis; and (2)
    if yes, would Mr. Fords words lead reasonable people to conclude that they
    did in fact refer to Mr. Foulidis: see
Sykes v. Fraser
, [1974] S.C.R.
    526, and
Knupffer v. London Express Newspaper Ltd.
, [1944] A.C. 116
    (H.L.).  He answered Yes to the first question and No to the second
    question.

[18]

With
    respect to the fourth proposition, the trial judge concluded that Mr. Fords
    words were not defamatory.  He reasoned, at paras. 38 and 44:

The reasonable person, having read fairly all of the
    defendants assertions in the article in issue, both quoted statements and
    accurate paraphrasing, likely would have understood him to have said:

(1)

I sense or suspect corruption in
    Tuggs Inc.s deal with the City

(2)

However, Im unable to say that
    anyone did anything wrong

(3)

My sense or suspicion of
    corruption is based on the Tuggs deal having been considered by the City in
    camera

(4)

In camera meetings are where more
    corruption and skullduggery goes on than Ive ever seen

(5)

However, I dont know what
    actually took place.



In my opinion, the reasonable reader would have concluded that
    the statements in issue, read as a whole and understood as aforesaid, did not
    defame the plaintiff, even if is assumed that the statements were about him 
    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 prevents any defamatory meaning being
    perceived in his suspicion of corruption.

[19]

Having
    concluded that Mr. Foulidis was not the target of Mr. Fords words and that the
    words were not defamatory, the trial judge declined to address the defences of
    qualified privilege, fair comment, and responsible communication on a matter of
    public interest, as well as the issue of express malice.  He did say that if he
    had found that Mr. Fords words defamed Mr. Foulidis, he would have assessed
    general damages at $20,000.

[20]

In
    a costs order dated June 10, 2013, the trial judge awarded costs to Mr. Ford
    and Bruce Baker
[1]
jointly on a partial indemnity basis fixed in the amount of $135,750, plus
    disbursements of $9,095.62, plus HST where applicable.

[21]

Mr.
    Foulidis appeals both the trial judgment and the costs order.

C.

Issues

[22]

The
    appellant raises four issues
[2]
:

(1)

Did the trial judge err by
    concluding that Mr. Fords words did not refer to Mr. Foulidis?

(2)

Did the trial judge err in
    concluding that Mr. Fords words were not defamatory?

(3)

Are any defences available to Mr.
    Ford?

(4)

Did the trial judge err in
    awarding costs to Mr. Ford?

D.

Analysis

(1)

The target of Mr. Fords words

[23]

The
    appellant contends that the trial judge erred by concluding that Mr. Fords
    words during the interview with the Toronto Sun did not refer to Mr. Foulidis. 
    Although Mr. Fords words referred to the Tuggs deal, and not to Mr.
    Foulidis, the appellant contends that the reasonable reader of the Toronto Sun
    article would have known that corruption behind the Tuggs deal really meant
    corruption by the person negotiating the Tuggs deal, namely, Mr. Foulidis.

[24]

For
    several reasons, I do not accept this submission.

[25]

First,
    it is important to underline the fact that in the brief portion of the
    interview giving rise to this defamation action, Mr. Ford never uses Mr.
    Foulidis name.  He refers to Tuggs or the Tuggs deal four times, but never
    to George Foulidis.  Yet the plaintiff, the only plaintiff, is George Foulidis,
    not Tuggs Inc.

[26]

Second,
    the appellants attempt to interpret Mr. Fords words as linking Tuggs to the
    appellant is tenuous.  The transcript reads:

Q. The Foulidis deal?

ROB FORD: Wha On the Tuggs?

That is the entire extent of the alleged link.  After
    this answer, Mr. Ford refers only to Tuggs and the Tuggs deal.  In my view, a
    fair inference is that Mr. Ford regards the target of his critical comments as
    the entity known as Tuggs, not Mr. Foulidis personally.

[27]

Third,
    the trial judge accepted Mr. Fords evidence that he barely recognized Mr.
    Foulidis name when asked about the Foulidis deal by the Sun, and that he did
    not know him personally.  Having heard the testimony of Mr. Ford and Mr.
    Foulidis, about whom the trial judge said I am left with serious doubt about
    the credibility and reliability of his testimony, the trial judge was entitled
    to reach this conclusion.

[28]

Fourth,
    although Mr. Ford used strong language in his criticism of the Tuggs deal, the
    focus of his comments was on the role of City Council in approving the deal. 
    For example, his use of the words corruption and skullduggery was in the
    context of his complaint about
in camera
meetings at City Council.

[29]

Fifth,
    Mr. Ford used strong limiting language  I cant accuse anyone  that
    suggests, again, that his focus was on the City Council process, not Mr.
    Foulidis.

[30]

Sixth,
    the trial judge concluded that Mr. Foulidis has failed to prove his assertion
    that he is either the face of Tuggs, or its alter ego.  On the evidence, I find
    that he has failed to prove that he was the person, and was seen as the person
    with management control of Tuggs Inc.  On the basis of the evidence reviewed
    by the trial judge, including Mr. Foulidis testimony and various Tuggs
    corporate documents, this conclusion was certainly open to the trial judge; it
    supports the respondents position that Mr. Foulidis was not the target of Mr.
    Fords words.

[31]

Seventh,
    the link between Tuggs and Mr. Foulidis was drawn explicitly by Jonathan
    Jenkins, the reporter, in his story in the Toronto Sun.

[32]

In
    the end, we are left with a lone and puzzling plaintiff, George Foulidis. 
    Where is Tuggs Inc.?  We are also left with a lone and puzzling defendant,
    Robert Ford.  Where is the Toronto Sun or even Doug Ford who said in the same
    interview: How about a 20 year untendered bid at a lower cost and then you
    find out the owners contributing to the guys who are voting for him?  Viewed
    in context, it cannot be said that the trial judge erred by concluding that Mr.
    Foulidis was not the target of Mr. Fords words.

(2)

Mr. Fords words  defamatory?

[33]

The
    appellant submits that the trial judge erred by concluding that Mr. Fords
    words were not defamatory.  The appellant asserts that the trial judge did not
    assess those words from the perspective of the reasonable reader.  Instead, he
    focussed on a single phrase with vague meaning  I cant accuse anyone, or I
    cant pinpoint it  and wrongly concluded that it neutralized the overall
    defamatory imprint of the words taken as a whole.  In a vivid summary of his
    position, the appellant asserts that these words have as much neutralizing
    effect on the rest of Fords words as lipstick does on a pig.

[34]

I
    begin with some basic propositions.

[35]

First,
    words are defamatory if their publication tends to lower a person in the
    estimation of right-thinking members of society, or exposes a person to hatred,
    contempt or ridicule: see
Botiuk v. Toronto Free Press Publications Ltd.
,
    [1995] 3 S.C.R. 3, at para. 62.

[36]

Second,
    whether words are defamatory will be assessed on the basis of their ordinary
    meaning, taking into account the surrounding circumstances, including the
    occasion of speaking and the relationship between the parties: see Raymond E.
    Brown,
Brown on Defamation
, 2d. ed., looseleaf (Toronto: Carswell,
    2010), at para. 5.3(1)(a).

[37]

Third,
    the decision of the fact finder as to whether impugned words have a defamatory
    meaning is entitled to substantial deference on appellate review: see
Simao
    v. Hankook Ilbo et al.
, 2012 ONCA 175, 348 D.L.R. (4th) 472, at para. 22.

[38]

Against
    this backdrop, I see no basis for interfering with the trial judges conclusion
    that Mr. Fords words were not defamatory of Mr. Foulidis.  The trial judge
    carefully and comprehensively examined Mr. Fords actual words, their ordinary
    meaning, and the context in which they were delivered.  He concluded that Mr.
    Ford voiced only a suspicion of corruption, that the focus of his words was
    on the decision-making process at City Council and that the word corruption
    was linked to Councils
in camera
meetings, and, importantly, that Mr.
    Ford explicitly disavowed accusing anyone of corruption, thereby clearly and
    explicitly prevent[ing] any defamatory meaning being perceived in his suspicion
    of corruption.  In my view, this analysis and conclusion were entirely open to
    the trial judge.

[39]

In
    the end, it deserves to be noted that two people spoke in the brief portion of
    the Toronto Sun interview dedicated to City Councils approval of a
    sole-sourced, untendered 20 year renewal of a lease with Tuggs.

[40]

Robert
    Ford spoke principally about the City Council process, criticized it sharply,
    did not mention Mr. Foulidis or use language suggestive of him, and explicitly
    stated that he was not accusing anyone of corruption.

[41]

Doug
    Ford said: how about a 20 year untendered bid at a lower cost and then you
    find out the owners contributing to the guys who are voting for him.

[42]

In
    my view, there is a world of difference between these two sets of words.  The
    appellant sued Robert Ford; he did not sue Doug Ford.  He lost his lawsuit, in
    part because the trial judge found that Robert Fords words were not defamatory
    of him.  I see no basis for interfering with the trial judges decision in this
    regard.

(3)

Defences and Malice

[43]

In
    light of my conclusions on the first two issues, it is not necessary to address
    the issues of possible defences and malice.

(4)

Costs

[44]

The
    appellant seeks leave to appeal the trial judges costs award in favour of the
    respondent.  The appellant contends that even if the appeal is dismissed, this
    court should find that Mr. Fords words were abusive and insulting and should
    express its disapproval by denying Mr. Ford his costs of the trial.

[45]

I
    am not persuaded by this submission.  Mr. Foulidis was not the target of Mr.
    Fords words.  Mr. Fords words were not abusive or insulting towards Mr.
    Foulidis.  There is nothing to disapprove.

E.

Disposition

[46]

I
    would dismiss the appeal.  The respondents are entitled to their costs of the
    appeal which I would fix, in accordance with counsels agreement, at $27,651
    for Mr. Ford and Mr. Baker in the companion appeal jointly.

Released: July 8, 2014 (J.C.M.)

J.C. MacPherson J.A.

I agree David Watt J.A.

I agree M.L. Benotto J.A.





[1]
Mr. Baker is the defendant in a companion defamation action,
Foulidis v. Baker
, 2012 ONSC 7295, and
    the respondent in a companion appeal, with reasons released concurrently today.



[2]
Three weeks after the appeal hearing, on June 10, 2014, counsel for the respondents
    wrote a brief letter to the court submitting that this appeal and the companion
Foulidis v. Baker
appeal should be
    dismissed because they should have been brought in the Divisional Court, not in
    this court.  The appellant disagreed and submitted a factum in support of this
    courts jurisdiction on June 12, 2014.  The respondents made reply submissions,
    affirming their previous position, on June 16, 2014.  I agree with the
    appellants analysis on this issue.  This court has jurisdiction to hear both
    appeals, this appeal as of right, and
Foulidis
    v. Baker
by virtue of s. 6(2) of the
Courts of Justice Act
, R.S.O. 1990, c. C.
    43.


