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Updated: Fri, 15 Nov 2013 08:28:07 GMT | By CBC News, cbc.ca

Rob Ford unlikely to succeed in suing ex-staffers



Toronto Mayor Rob Ford talks into his cell phone as he makes his way to the council chamber in Toronto on Thursday November 14, 2013.THE CANADIAN PRESS/Chris Young The Canadian Press

Toronto Mayor Rob Ford talks into his cell phone as he makes his way to the council chamber in Toronto on Thursday November 14, 2013.THE CANADIAN PRESS/Chris Young The Canadian Press

In yet another twist in the ongoing saga of Toronto Mayor Rob Ford, the mayor has threatened to sue several former members of his staff over comments they made about him in police interviews. But attorneys say legal precedent suggests such lawsuits are unlikely to be successful.

According to court documents released Wednesday, several of the mayor's staff and advisers, as well as a waiter at a Toronto bar Ford visited, were interviewed by police described incidents in which the mayor was seen drinking heavily, driving after consuming alcohol, consuming what looked to be drugs and consorting with a woman who might have been prostitute.

On Thursday, Ford described the allegations as "100 per cent lies." 

"Unfortunately, I have to take legal action against (former deputy press secretary) Isaac Ransom and (former press secretary) George Christopoulos and (former chief of staff) Mark Towhey," Ford said. "I have to take legal action against the waiter that said I was doing lines (of cocaine) at the Bier Markt. That is outright lies."  

Ford told reporters on Thursday that litigation against the four individuals "will be starting shortly."

The most likely type of lawsuit Ford would file would be a defamation suit, alleging he was the victim of slander, which refers to defamation that is spoken rather than written or broadcast. But because the statements were made to police, Ford's lawyers would likely come up against a defence known as qualified privilege, which protects statements made in certain circumstances.

Under qualified privilege, defamatory statements that are made in some instances, such as the filing of a police report, are protected from defamation claims if the person making them is doing so out of a legal or moral obligation and the person to whom the statements are made has a legitimate interest in obtaining the information beyond mere gossip.

"It's fairly established that when people make police reports, they're immune from defamation claims, and in this case, where people were speaking with them in the course of an investigation, I can't imagine how the rule would be any different," said Sean Moreman, a media lawyer for CBC who was part of the legal team involved in getting the court documents released.

Certain communications protected

Qualified privilege applies when media report defamatory statements made during official proceedings, such as a city council meeting or question period in Parliament, for example, or when individuals complain about someone, such as a doctor or an attorney, to a governing body that regulates a profession. It even protects the boss who makes negative statements about a former employee for whom he or she has been asked to serve as a reference — as long as the comments are a truthful account of their opinion.

"It encourages certain communications," said Iain MacKinnon, an attorney with the Toronto firm Chitiz Pathak. "We want to encourage people to speak truthfully and candidly to peoplelikepolice when you're talking about somebody, especially when police come wanting to interview you and get a statement from you becausethey're doing an investigation. You don'twant to chill that kind of speech."

In all of the above cases, it matters who is hearing the defamatory statements, said MacKinnon, who represented Sun Media and CBC in the legal case to release the Ford court documents.

"You have to be careful that you're only communicating it to people who need to receive it," he said. "So, there's a duty on the person to say it, and a corresponding duty on the person to receive the information."

In the case of the former Ford staffers and waiter who are the subject of the mayor's threats of legal action, it would help their case that they made the statements only to police.

"If they had gone to the media with those same statements, then he (Ford) would have a much stronger case," MacKinnon said.

Ford would have to prove malice

The only way that the privilege defence could be undermined is if Ford's lawyers showed that the statements about Ford were made with malicious intent or reckless disregard for the truth.

"The only way he can overcome the privilege would be establishing malice — either they're being vindictive or they were completely reckless as to what they were reporting was true," Moreman said.

"If they're reporting things as fact, and they know they're not true, then there's a possibility for a malice claim. If they're reporting things as what they heard or their belief, it would be harder, at least, to say their belief is a lie unless they have malicious intent."

One of the people Ford is threatening to sue was fired from the mayor's office, and two others resigned under acrimonious circumstances, which means that in at least some of the cases, Ford could potentially argue that the individuals had an ulterior motive in talking to police or harboured resentment over the termination of their employment or their past dealings with Ford. 

Proving statements difficult

Another possible — but much harder — defence would for the defendants to prove that what they told police was true.

"If they can prove the truth of what they said, then that, obviously, would be a complete defence to any libel claim," said MacKinnon. "It would really come down to the staffer's word against the mayor's word unless there were other witnesses to what was being alleged."

For example, if Ford decided to sue over the statement that he was seen with a woman believed to be a prostitute, the defendant would have to prove the woman they saw Ford with was a prostitute.

"That could mean calling her as a witness at trial," MacKinnon said.

If a court were to allow the defamation lawsuits to go ahead and found in Ford's favour, the mayor would be awarded some minimum amount of financial damages automatically because damages are presumed in defamation cases — without the plaintiff having to prove that they were harmed as a result of what was said about them.

"All you have to prove is that the defendant made a defamatory statement that was not defensible, and then there will be some assessment of damages," MacKinnon said.

"Of course, those damages can go up if, in fact, you did suffer real harm, and you can prove that or that the defendant was motivated by malice and should get punitive damages."

Lawsuits could drag on for years

If Ford did follow through on his threats, lawyers for the staffers would most likely immediately move to have the suits dismissed outright on the principle of privilege, but if they were allowed to proceed, they could drag on for years, Moreman said.

Ford could file the civil suits even while the police investigation that resulted in the release of these documents is still ongoing.

While a suit against the individuals named in the court documents is unlikely to be successful, it would be even harder for Ford to go after the media for reporting what the staffers allegedly told police, Moreman said. As long as the statements are reported fairly and accurately and with the caveat that nothing in the documents has been proven, such reporting is covered by an even stronger legal defence than qualified privilege known as absolute privilege, which applies to court proceedings and communications.

"What we've reported is court documents, and that's absolutely privileged, so malice doesn't even play in there, and that's protected by statute," he said.

"This ties into the idea that courts are open to the public —  and justice must be not only done but seen to be done, and if we were prevented as media from reporting on court matters, because we're afraid of being sued all the time, it would undermine that principle."

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