“It does appear that Mayor Ford is suggesting that Mr. Dale was taking pictures of ‘little children’ and that the motivation to do so was questionable,” Singh, associate with Cambridge LLP, says of Ford’s interview with disgraced media mogul Conrad Black on Vision TV. “Mayor Ford also used the phrase ‘I don’t want to say that word,’ which suggests that he had a specific word in mind in referring to Mr. Dale.”
For him to be successful in a defamation lawsuit against Ford, “Dale would have to prove to a court of law that the mayor was employing innuendo to communicate a specific meaning to the audience – and that the meaning is both false and injurious to Mr. Dale’s reputation.”
Singh says it’s difficult to predict whether or not Dale would succeed in a defamation claim, however, “so long as Mr. Dale can convince a court of law that Mayor Ford was implying that Mr. Dale was improperly taking pictures of ‘little children’ through innuendo, I suspect Mr. Dale may be able to obtain a damages award in defamation action.”
Any suggestions of impropriety involving “little children” is almost always defamatory “because I cannot imagine any scenario wherein the subject’s reputation is not harmed,” adds Singh. “Because the words were communicated via television, although nominally constituting slander, in this instance there is precedent for the court to find that the words are libelous and, thus, general damages would be available.”
In Myers v. Canadian Broadcasting Corporation et al., the defendant (CBC) produced an hour-long television program which examined questions raised in the medical scientific community about the safety of heart medications known as Calcium Channel Blockers, particularly one called nifedipine. The plaintiff, a doctor, was one of the interviewees on the program. He brought an action for damages for defamation, alleging that the program made a number of innuendos.
According to the decision, the trial judge concluded that all the innuendos were defamatory and were proven. The judge found that the defence of qualified privilege was not available as the occasion was not such as to impose any duty to communicate the defamatory information to the public. However, with respect to the defence of fair comment, the judge found that the program did contain true facts which could support the innuendos and that it was a matter of public interest. Thus, while some of the program’s suggestions were protected by the defence of fair comment, the rest were not, since a fair-minded person could not honestly come to those conclusions when all the proved facts on which the CBC relied were considered.
“It is difficult to imagine what defence, if any, Mayor Ford would succeed at if Mr. Dale decides to pursue a defamation claim,” says Singh. “At best, he could claim truth - truth being a 100% defence to a defamation claim – but, unless he can prove the truth of his insinuation, such a defence will not succeed.”
Ford may try to defend on the doctrine of fair comment, says Singh, claiming that he was merely making a reasonable commentary on the situation. “But, considering what he was implying, unless he can prove to the court that the facts were such that it was reasonable for him to make a comment of that nature to be broadcast to the public at large, it is again doubtful he would succeed on such a defence,” adds Singh. "Additionally, the context of Mayor Ford's comments do not appear as 'commentary', but rather 'statements' of 'alleged' facts."
In any event, says Singh, even if Ford succeeded in raising “fair comment” as a defence, it would be open to attack, and potentially defeated, “if Mr. Dale can prove that Mayor Ford said what he said out of malice, and considering the contentious relationship between the mayor and the media, his renowned combative personality, and the fact that he singled out Mr. Dale, it's hard to imagine a court of law finding his insinuation involving 'little children' were anything other than malicious.”