



COURT OF APPEAL FOR ONTARIO

CITATION: Foulidis v. Baker, 2014 ONCA 529

DATE: 20140708

DOCKET: C56528

MacPherson, Watt and Benotto JJ.A.

BETWEEN

George Foulidis

Plaintiff (Appellant)

and

Bruce Baker

Defendant (Respondent)

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

Gavin 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, sitting without a jury, dated December
    27, 2012, with reasons reported at 2012 ONSC 7295.

Watt J.A.:

[1]

Untendered service contracts attracted the attention of at least two
    candidates for office in the Toronto municipal elections of 2010. And what the
    candidates said about untendered service contracts attracted two actions for
    libel.

[2]

Both actions failed at trial. The unsuccessful plaintiff in both actions
    appeals. These reasons, and those released concurrently in the companion appeal
    of
Foulidis v. Ford
(C56537)
[1]
,
    explain why both appeals fail.

THE BACKGROUND FACTS

[3]

First, some background about the principals, the contract and the
    allegedly libellous letter.

The Principals

[4]

The Foulidis family has been in the restaurant business for many years.
    Through their company, Tuggs Inc. (Tuggs), the family operated the Boardwalk
    Café in the Beaches area of Toronto under a long-term lease with the City. The
    lease was to expire in 2007.

[5]

George Foulidis was not an officer or director of Tuggs but was involved
    in the operation of the Boardwalk Café. He was the family member who sought for
    Tuggs a new and exclusive long-term lease to operate the Boardwalk Café and
    other concessions after the prior lease expired in 2007.

[6]

Bruce Baker was a resident of the Beaches who sought election as a
    councillor for Ward 32 in the municipal elections in the fall of 2010.

The Original Lease

[7]

In 1987, Tuggs was the successful bidder for a long-term (20 year)
    exclusive lease to operate food and beverage facilities, including the
    Boardwalk Café, along the eastern Beaches area of Toronto. Tuggs agreed to spend
    $2,000,000 to improve the Boardwalk Café premises and other concession
    facilities.

Lease Expiry and Negotiation

[8]

During the fall of 2006, George Foulidis prepared and submitted a
    proposal on behalf of Tuggs to Parks staff of the City promising a further investment
    of $2,000,000 in the Boardwalk Café and concessions in return for another
    long-term lease to operate those facilities. Among other things, Foulidis
    contacted the office of the incumbent councillor for the Beaches, Sandra
    Bussin, to solicit her support for the Tuggs bid. Some councillors opposed
    Tuggs application because it did not involve an RFP (Request for Proposals)
    process.

[9]

In early 2007, City Council voted to approve the Tuggs proposal and
    directed Parks staff to begin negotiations with Tuggs on a new lease that was
    to include certain conditions. As it turned out, negotiations would extend over
    a period of three years.

The Media Interest

[10]

The
    decision to proceed with the untendered Tuggs proposal attracted media
    attention. The controversy continued into the election year, 2010. Some
    articles drew a connection between contributions to councillor Bussins earlier
    campaign for re-election and her support of the Tuggs proposal. Some
    commentators went so far as to suggest that a police investigation should be
    pursued.

[11]

Neither
    Foulidis nor Tuggs made any contributions to councillor Bussins campaign.

The Baker Campaign and the Tuggs
    Deal

[12]

On
    January 4, 2010 Bruce Baker filed his nomination papers as a candidate for City
    Council in the election to be held in the fall of 2010. By April 2010, Baker
    made the Tuggs deal an issue in his campaign.

[13]

A
    City staff member raised issues about the untendered nature of the Tuggs deal.
    On April 28, 2010 the Government Management Committee of City Council referred
    the issue to Council for further consideration, but made no recommendation
    about the course to be followed. Bruce Baker attended the Committee Meeting.

The Article in Toronto Life

[14]

On
    May 11, 2010 an article on election finance donations was published by
Toronto
    Life
. The article made specific reference to the contributions of the
    Foulidis family and their friends to Sandra Bussins 2006 election campaign.
    The article noted that the contributions and campaign were shortly before the
    Tuggs lease was extended by Council in 2007.

The Malamas Letter

[15]

On
    the evening of May 11, 2010 Baker got an email from the same City staff member
    who had questioned the propriety of the untendered lease agreement with Tuggs
    before the Government Management Committee on April 28, 2010. The email
    contained no original text but attached a letter from William Malamas to a
    Toronto Star newspaper reporter.

[16]

The
    Malamas letter read:

I read your article, published in the Toronto Star on April 29,
    2010. I know George Foulidis well.

George Foulidis has disclosed to me,
repeatedly
,
    how he manages to obtain favours from the Toronto City Hall, in connection with
    his lease in the beaches.

Mr. Foulidis has
specifically
told
    me, that he manages to obtain, whatever favours he wants from the City, by
    finding the key people who are responsible in overseeing his lease with the
    City.

Mr. Foulidis has specifically and repeatedly told me that he
pays
, directly or indirectly, the key people who make
    decisions about his lease.

Mr. Foulidis also has told me that he attends fundraising
    events for councillors. He makes contributions to their election campaigns. He
    hires lobbyists who lobby councillors and/or key people influential with the
    City, in order to obtain their support in obtaining favours from the City, in
    connection with his lease.

Mr. Foulidis has
specifically
told
    me about his connections with the former councillor of the area and how he,
always
, was able to obtain his support in connection
    with his lease.

I know nothing as to how he obtained the support of the
    present councillor for the area and/or how he obtained the support of the other
    people from the City who oversee his lease, at the present time.

However, judging from what Mr. Foulidis
    has told me about the actions that he takes to obtain support from the key
    people who oversee his lease
, I believe that the support he has,
presently
, obtained is not genuine.

In my opinion the RCMP,
not the Toronto
    Police
, should be called in, to investigate as to how Mr. Foulidis has
    obtained support from the City of Toronto, throughout the last twenty years, in
    connection with his lease and all the favours that he has obtained from the
    City, in connection with his lease, and the means that he used to obtain such
    favours.

If you wish to further discuss this matter with me, please
    contact me, I am faxing a copy of this letter to the persons or city officials
    noted below.

Yours truly,

William Malamas [Emphasis in original.]

[17]

Baker
    did not know William Malamas and made no effort to contact him despite
    inclusion in the Malamas letter of all relevant contact information.

[18]

The
    Malamas letter to the Toronto Star reporter indicated that copies of it had
    been sent to the Mayor and seven incumbent councillors. Baker assumed that
    everyone shown as being sent a copy had received one.

The Baker Letter

[19]

City
    Council was to vote on the Tuggs lease on May 12, 2010. On that day, Baker
    delivered a letter to the City Clerk. The letter, marked confidential, was
    addressed to the Mayor and councillors. To ensure confidentiality, staff in the
    City Clerks office transferred the letter to purple paper and delivered it to
    the intended recipients.

[20]

Bakers
    letter refers to but does not attach the letter from William Malamas and the
    article in
Toronto Life
. Baker sought a full audit of election finance
    donations and a full investigation of the allegations by Toronto Police.

[21]

The
    Baker letter, addressed to councillors and Mayor Miller, was in these terms:

I am a beach resident fighting the lease agreement between the
    City of Toronto and Tuggs Inc.

As a concerned beach resident and upon learning of new
    revelations over the deal between the City of Toronto and Tuggs Inc., I am
    calling on you to call in the Toronto Police to investigate.

What has transpired between the City of Toronto and Tuggs Incorporated-aka:
    Boardwalk Café- has new meaning when a letter was received by residents
    fighting Tuggs Incs expansion plans that alleges that Tuggs Incs owner,
    George Foulidis, has influenced Toronto City Hall for favors.

The letter was originally sent to Toronto Star reporter Paul
    Moloney and copied to residents fighting the expansion plans. The letter was
    sent from Mr. William Malamas from Richmond Hill.

Aside from the letter received from Mr. Malamas, the Toronto
    Life, May 11
th
issue of 2010 raises further questions regarding
    election finance donations. Enough to ask for a full audit and a full
    investigation into the allegations.

[22]

When
    Baker delivered his letter to the City Clerks office, he did not ask whether
    the Malamas letter had been delivered to the Mayor and councillors.

Approval of the Lease

[23]

At
    its meeting on May 12, 2010 City Council approved the Tuggs lease to operate
    the Boardwalk Café and other concessions in the Beaches area for another 20
    years.

The Findings of the Trial Judge

[24]

The
    trial judge was satisfied that:

i.

Baker wrote and published the letter;

ii.

the letter referred to Foulidis by name and through his association with
    Tuggs; and

iii.

the letter was defamatory of George Foulidis.

The trial judge described the sting of the libel in
    these terms:

[19] The particular sting of the libel is the statement that
    he influenced City government for favours, inferentially in respect of Tuggs
    Inc.s contract with the City, in a manner which merits a police investigation.
    The letter is also defamatory in asserting that there are questions about Mr.
    Foulidis election finance donations, which, inferentially, are related to the
    aforesaid influence.

[25]

The
    trial judge then considered the three defences advanced by counsel for Baker:

i.

fair comment;

ii.

qualified privilege; and

iii.

responsible communication.

[26]

The
    trial judge concluded that some of the contents of the letter were protected by
    fair comment, but others, which were assertions of fact, were beyond the reach
    of the fair comment defence. He deferred consideration of the contents
    protected by fair comment until he discussed express malice later in his
    reasons.

[27]

The
    trial judge concluded that the Baker letter had been delivered to City Council
    on an occasion of qualified privilege. He concluded:

[67] I conclude that the defendant had a legitimate interest in
    directing his letter to City Council for the reasons he did, calling for
    investigations into serious allegations of unknown and, for him,
    unascertainable reliability which were reasonably seen as putting in question
    the integrity of the governmental processes for which City Council was
    responsible. The members of City Council who received the Baker letter had a
    corresponding interest and, given the serious nature of the allegations which
    impugned the integrity of the processes for which Council was responsible, a
    duty to receive it. Leaving aside the issue of express malice, I conclude that
    the Baker letter was delivered on an occasion of qualified privilege.

[28]

The
    judge rejected the defence of responsible communication on a matter of public
    interest for several reasons that he expressed in these terms:

[70] In my view, there are several related reasons why this
    defence is not available to the defendant. This case does not involve either
    traditional media or new media dissemination of information. It involves
    communication which is almost antiquated in nature: a letter, delivered by
    hand. The letter was not published generally, as is the case with media
    publication, but to a select and focused few. Further, in a case of widespread
    media publication, the defence of qualified privilege is often unavailable.
    That was a reason given in
Grant v. Torstar
[[2009] 3 S.C.R. 640] for
    the development of this new defence. In this case, the defence of qualified
    privilege is available to the defendant. In my view, it adds unnecessary
    complexity to this area of the law to hold that this important new defence is
    available to a non-media defendant to whom the defence of qualified privilege
    has been found to apply.

[29]

The
    trial judge considered whether express malice removed Bakers comments from the
    protections afforded by qualified privilege or fair comment. He concluded that
    Foulidis had failed to prove express malice. The trial judge explained:

[75] In my opinion, the plaintiff has failed to prove express
    malice. I wont repeat my findings about why the plaintiff did what he did and
    how that was directed to serving the interests of the public, both in advancing
    the interests of Ward 32 electors and in urging City Council to cause or to
    make inquiries into the Malamas and Toronto Life allegations. These were his dominant
    motives, in my opinion. I am satisfied that any incidental personal gain as a
    candidate or otherwise which might have been derived by the defendant from his
    letter was not in conflict with the duty/interest equation which is the basis
    for my finding that the defendant wrote his letter on an occasion of qualified
    privilege. Similarly, I am satisfied that any incidental personal gain as a
    candidate or otherwise was sufficiently connected to the purpose for which the
    defence of fair comment exists, namely to ensure robust and candid commentary
    on matters of public concern, that it cannot be seen as establishing express
    malice.

[76] The defendant also did not knowingly or recklessly
    disregard the truth of what he stated in his letter. He was careful to refer to
    the content of the Malamas letter and to the Toronto Life election finance
    assertions as allegations. He did not hold them out as truth to be accepted. To
    the contrary, he called for investigation of them. He was neutral about their
    factuality and concerned to have it subjected to inquiry. I have already
    commented on the short period of time he had before City Council would vote,
    and how limited his opportunities were for productive inquiry into the facts.

THE GROUNDS OF APPEAL

[30]

The
    appellant says that the trial judge erred in failing to find that the defence
    of qualified privilege was lost because:

i.

the dominant motive for making the statements contained in the letter
    was malice; or

ii.

the statements were not commensurate with the occasion that gave rise to
    qualified privilege.

[31]

The
    appellant also challenges the costs order made against him. He contends that
    since the action was dismissed on the basis of qualified privilege, which only
    becomes engaged on proof of the defamatory nature of the publication, he should
    not be required to pay the defendants costs.

Ground #1: Was the Baker Letter Reasonably Appropriate to the
    Occasion of Qualified Privilege?

[32]

Several
    features of the background provide the setting for an assessment of this claim
    of error.

The Essential Facts

[33]

Baker
    delivered his letter to the Mayor and members of Council on May 12, 2010, the
    day on which Council was to vote on approval on the sole source contract with
    Tuggs to operate the Boardwalk Café and related concessions. The letter
    referred to but did not enclose the letter sent by William Malamas to a Toronto
    Star reporter and an article published the previous day by Toronto Life magazine.

[34]

In
    his letter, Baker asked or invited Council to do two things:

i.

call in Toronto Police to conduct a full investigation; and

ii.

request a full audit.

regarding election finance donations. Baker marked his
    letter confidential and delivered it to the office of the City Clerk. The
    letter was forwarded to its intended recipients as a confidential document by
    staff in the City Clerks office.

[35]

The
    Malamas letter that Baker received the evening before he sent his letter to the
    Mayor and Council indicated that it (the Malamas letter) had been ccd to the
    Mayor and several members of Council.

The Positions of the Parties

[36]

For
    the appellant, Mr. Pape submits that the occasion that gave rise to the defence
    of qualified privilege was the need for Council to receive timely notification
    of information relevant to the impending vote on approval of the Tuggs
    contract. To be protected by qualified privilege, the Baker letter must be
    reasonably appropriate to achieve the purpose of that occasion.

[37]

Mr.
    Pape says that the Baker letter was not reasonably appropriate to achieve the
    purpose of the occasion. The letter simply repeated previously unsubstantiated
    and unproven allegations of unascertainable reliability from unknown sources.
    The information had already been communicated to several members of Council.
    Some of the allegations, those made in the
Toronto Life
article, were
    already in the public domain. The trial judge erred in considering as
    dispositive Bakers subjective belief that the letter was worthy of consideration
    by Council, rather than applying an objective standard.

[38]

For
    the respondent, Mr. Tighe says the trial judge applied the proper test. His
    finding, which involves a question of mixed fact and law, is entitled to
    deference on appeal. The appellant has demonstrated no palpable and overriding
    error that would warrant our intervention. Baker acted in the interests of the
    electors in Ward 32. He provided timely notice to the decision-makers of
    matters that were relevant to their decision.

The Governing Principles

[39]

The
    controversy here is governed by the application of some basic principles
    applicable to the defence of qualified privilege and the circumstances that may
    render that defence unavailable in answer to a defamation claim.

[40]

First,
    qualified privilege attaches to the occasion on which a communication was made,
    not to the communication itself:
Hill v. Church of Scientology of Toronto
,
    [1995] 2 S.C.R. 1130, at para. 143;
RTC Engineering Consultants Ltd. v.
    Ontario (Ministry of the Solicitor General & Correctional Services-Office
    of Fire Marshall)
(2002), 58 O.R. (3d) 726 (C.A.), at para. 14; and
Botiuk
    v. Toronto Free Press Publications Ltd.,
[1995] 3 S.C.R. 3, at para. 78.

[41]

Second,
    on an occasion of qualified privilege, one person may defame another without
    attracting liability for defamation. The law presumes that the defamatory
    statement was made honestly and in good faith:
RTC Engineering
, at
    para. 14. Said somewhat differently, the legal effect of the defence of
    qualified privilege is to rebut the inference, one that naturally emerges from
    the publication of defamatory words, that they were spoken with malice:
Hill
,
    at para. 144.

[42]

Third,
    as the term qualified privilege would itself suggest, the privilege is not
    absolute:
RTC Engineering
, at para. 18.

[43]

Fourth,
    qualified privilege may be defeated when the information communicated in the
    statement is not reasonably appropriate in the context of the circumstances
    existing on the occasion when the information was given:
Hill
, at
    paras. 146-147;
RTC Engineering
, at para. 18;
Botiuk
, at
    para. 80; and
Douglas v. Tucker
, [1952] 1 S.C.R. 275, at p. 286.

The Principles Applied

[44]

As
    I will explain, two principal reasons persuade me not to give effect to this
    ground of appeal.

[45]

First,
    the trial judges finding that the Baker letter was reasonably appropriate in
    the context of the circumstances of the occasion when the information was given
    is pre-eminently a finding of fact that is subject to deference in this court.
    The appellant has not pointed to any palpable and overriding error made by the
    trial judge in reaching his conclusion. Nor has the appellant identified any
    legal error in the test applied, which was objective rather than subjective as
    the appellant contends.

[46]

Second,
    the timing and manner of the communication were reasonably appropriate in the
    context of the circumstances that existed on the occasion when the information
    was provided. The letter was sent to a restricted constituency  the parties
    who would make the decision about the contract. The letter was marked and
    treated as confidential and delivered the day on which the decision was to be
    made. The letter was not disseminated to the world at large, as for example, by
    dispatch to media organizations.

Ground #2: Alleged Error in Failure to Find Malice

[47]

The
    second error alleged by the appellant advances a discrete basis  which, if
    accepted, would eliminate the defence of qualified privilege advanced at trial.

The Additional Facts

[48]

In
    connection with this ground of appeal, it is essential to keep in mind one
    additional feature of the background. The Malamas letter Baker received on the
    evening of May 11, 2010, and to which he referred in his confidential letter to
    the Mayor and Council, contained contact information for Malamas  his
    residential and email address and his telephone number. Malamas lived in a
    Toronto suburb close to the northern boundary of the city.

The Positions of the Parties

[49]

For
    the appellant, Mr. Pape submits that the trial judge erred in failing to find
    that the defence of qualified privilege was defeated by malice on the part of
    Baker. Malice can be established by proof of a knowing or reckless disregard
    for the truth, or by proof of an ulterior or indirect motive. A plaintiff can
    establish malice by drawing inferences from the language of the allegedly
    defamatory communication or by introducing extrinsic evidence.

[50]

In
    this case, Mr. Pape says, the trial judge erred in failing to draw the required
    inferences from the uncontroverted facts. Baker made no effort to verify
    accusations that he acknowledged were shocking and unbelievable. The
    allegations were made by a person with whom Baker had had no previous dealings
    about a person of whom Baker thought favourably. That Baker considered and
    characterized Malamas letter as mere allegations does not warrant a finding
    that Baker was not reckless with respect to the truth of those allegations.

[51]

For
    the respondent, Mr. Tighe submits that on an occasion of qualified privilege,
    we begin with a presumption of good faith. Qualified privilege rebuts the
    inference of malice that would normally arise from the publication of
    defamatory words. It is the burden of a plaintiff to prove malice, that is to
    say, that the communication was animated by ill-will or indirect motive. The burden
    is an onerous one to discharge and requires proof that the defendant knew he
    was not telling the truth or that he was at least reckless about the truth of
    his comments.

[52]

In
    this case, Mr. Tighe says, the record is barren of any evidence of express
    malice. The parties did not know one another. Baker had a favourable impression
    of Foulidis from what he had heard of him. Bakers failure to contact Malamas
    to verify his allegations would have made no difference and cannot ground a
    finding of reckless disregard for the truth and thus a finding of malice.

The Governing Principles

[53]

Several
    principles furnish the guidance necessary to a just determination of this
    ground of appeal.

[54]

First,
    qualified privilege may be lost if the dominant motive for the statement was
    malice:
Hill
, at para. 144;
RTC Engineering
, at para. 18; and
Botiuk
, at para. 79.

[55]

Second,
    to defeat a defence of qualified privilege, the dominant motive for publishing
    the statement must be actual or express malice:
Hill
, at para. 144;
Botiuk
,
    at para. 79; and
Horrocks v. Lowe
, [1975] A.C. 135 (H.L.), at p. 149.

[56]

Third,
    malice means spite or ill-will, but also includes any indirect motive or
    ulterior purpose that conflicts with the sense of duty or mutual interest that
    the occasion giving rise to qualified privilege created:
Hill
, at
    para. 145; and
Botiuk
, at para. 79.

[57]

Fourth,
    malice can also be established by showing a defendant spoke or wrote
    dishonestly or in knowing or reckless disregard for the truth:
Hill
,
    at para. 145;
Botiuk
, at para. 79; and
RTC Engineering
, at
    para. 18.

[58]

Further,
    the onus rests on the plaintiff to prove malice by inference, extrinsic
    evidence, or both. This follows from the effect of qualified privilege, which
    is to rebut the inference of malice that arises from the fact of publishing
    defamatory words:
Hill
, at para. 144; Raymond E. Brown,
Brown on
    Defamation,
loose leaf, 2nd ed. (Toronto: Carswell, 2011), at p. 16-2.

[59]

Finally,
    whether a plaintiff has established malice to rebut a defence of qualified
    privilege is a question of mixed fact and law, heavily dependent on the facts
    disclosed by the evidence adduced at trial and subject to the palpable and
    overriding standard of review on appeal:
Chohan v. Cadsky
, 2009 ABCA
    334, 464 A.R. 334, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 496,
    at para. 87; and
Cimolai v. Hall
, 2007 BCCA 225, 44 C.P.C. (6th) 389, at
    para. 30.

The Principles Applied

[60]

For
    several reasons, I would reject this ground of appeal.

[61]

First,
    after correctly articulating the test for malice and assigning the onus of
    proof to the plaintiff, the trial judge made an express finding, anchored in
    the evidence adduced at trial, that the plaintiff had failed to prove malice.
    This conclusion is heavily dependent on findings of fact made by the trial
    judge and is subject to review on a standard of palpable and overriding error:
Chohan
,
    at para. 87. The appellant has failed in his quest to identify any such error
    on appeal.

[62]

Second,
    the trial record is barren of any evidence of an existing relationship between
    the parties, all the more so of any animosity or ill-will of Baker towards
    Foulidis. The trial judge expressly found that any incidental personal gain
    Baker might have derived from the letter as a candidate in the upcoming
    municipal elections did not conflict with the duty/interest equation that
    grounded the finding that the letter was sent on an occasion of qualified
    privilege.

[63]

Third,
    while it is true that Baker did not verify the accuracy of the facts that
    generated Malamas allegations, the manner in which he communicated his letter,
    as well as its contents, belied any assertion of malice. Baker did not assert
    that the allegations were anything more than allegations, something that
    warranted investigation. He did not vouch for their truthfulness. His
    communication was designated confidential, sent only to the decision-makers,
    and not disseminated to the electors or population at large.

THE COSTS APPEAL

[64]

The
    appellant also seeks leave to appeal the costs order made against him at trial.

[65]

Counsel
    for the appellant at trial (not Mr. Pape) asked the trial judge to award no
    costs to the defendant despite his success at trial. Counsel submitted that the
    defendant used the Tuggs deal as a political football to advance his campaign
    for a seat on Council. Such an irresponsible use of a private citizen and his
    business for perceived political gain, counsel submitted, warranted denial of
    costs despite the defendants success at trial.

[66]

The
    trial judge recognized that he had discretion to deny costs to a successful
    libel defendant where the words were abusive but not libellous and there was
    reason for the court to express its disapproval of the defendants conduct. The
    trial judge acknowledged a similar discretion in cases, like this, where the
    words were libellous but protected by qualified privilege.

[67]

The
    trial judge refused to deny the defendant his costs. The judge pointed out that
    Baker recognized the importance of verifying the accuracy of the underlying
    allegations. He was careful never to assert their truth. He acted in the public
    interest, not irresponsibly, abusively or offensively.

[68]

It
    is well established that a costs award should be set aside on appeal only if
    the trial judge has erred in principle or has made an award that is plainly
    wrong:
Hamilton v. Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1
    S.C.R. 303, at para. 27.

[69]

Mr.
    Pape submits that the trial judge erred in awarding Baker his costs. The judge
    failed to take into account Bakers divided success at trial. The letter was
    defamatory. Baker made no effort to verify the truthfulness of the allegations
    contained in the Malamas letter, claims made by an unknown and untested source.
    Further, Bakers subsequent conduct did not include any acknowledgment that the
    allegations were without foundation or any apology to the appellant.

[70]

I
    would not interfere with costs award made by the trial judge. The award
    reflects no error in principle and is not plainly wrong.

CONCLUSION

[71]

For
    these reasons, I would dismiss the appeal in its entirety. The respondents are entitled
    to their costs of the appeal that I would fix, as counsel have agreed, at
    $27,651, inclusive of disbursements and all applicable taxes, for Baker and
    Ford, in the companion appeal, jointly.

Released: July 8, 2014 (JCM)

David Watt
    J.A.

I agree
    J.C. MacPherson J.A.

I agree
    M.L. Benotto J.A.





[1]
The reasons in
Foulidis v. Ford
also explain the basis of our jurisdiction to hear both appeals.


