The judge at Rob Ford's defamation trial hammered away at the mayor's lawyer Monday, raising questions about whether Mr. Ford went "too far" with his suggestions of corruption to rely on the defence that his remarks were fair comment.
Early in Gavin Tighe's closing address, Mr. Justice John Macdonald of the Ontario Superior Court interrupted to say there was no need to persuade him of the importance of free speech around the city's controversial, sole-sourced lease extension with Tuggs Inc., the company that owns the Boardwalk Pub in the Beaches.
The owner of Tuggs Inc., George Foulidis, is suing Mr. Ford for $6-million for allegedly suggesting to The Toronto Sun editorial board in August 2010 that the deal was corrupt.
"The issue here's a little different," the judge said. "In the course of exercising those rights, properly to be exercised in the context, did [Mr. Ford] just go too far in relation to Mr. Foulidis? It's sort of a jump up."
The Mayor's lawyer says his client did not libel Mr. Foulidis in the first place – Mr. Tighe argues Mr. Ford was flagging institutional corruption at City Hall and did not know Mr. Foulidis's name. If the judge disagrees, Mr. Tighe plans to fall back on the defence that Mr. Ford's remarks were fair comment.
Recent Supreme Court of Canada judgments have broadened the definition of "fair comment" so that as long as a statement is rooted in fact, speakers can express a wide and even bizarre range of opinions on that fact, Mr. Tighe told the court.
"The comment must be based on fact. We know that's the case because Mr. Foulidis kept saying it's a done deal. The deal is the fact," Mr. Tighe said.
But Judge Macdonald repeatedly took issue with that idea.
"How can you say that an imputation of corruption is based on fact?" he asked, pointing out later that Mr. Ford admitted in the witness box last week that he had no proof of corruption or bribery, only a hunch and innuendo from anonymous callers.
Mr. Tighe replied that it was simply Mr. Ford's opinion that the deal was corrupt; if at least one other person could share that opinion, it should pass the test, he said.
"Your honour, if Mr. Ford had said, 'I think this deal was brought from Mars by aliens,' if he could find someone else to agree with him, it's not defamatory," Mr. Tighe said.
Mr. Ford stayed in court all day to hear the closing arguments while his deputy, Doug Holyday, chaired a meeting of the mayor's executive committee.
Earlier in the day, Mr. Foulidis's lawyer, Brian Shiller, tried to undermine his opponent's suggestion that Mr. Ford's chief concern was the process that led council to ink an untendered deal with Tuggs Inc. against the advice of bureaucrats.
He pointed out that Mr. Ford did not stay for the May 12, 2010 vote at which council signed off on the final lease agreement, or for a vote at audit committee that summer that could have sparked an auditor-general's investigation into the deal.
"Mr. Ford rails on the fact that the process is corrupt. That's what he tells this court, but he doesn't even remain to vote to get the audit committee to look at [the Tuggs deal,]" Mr. Shiller said.
He called that proof that Mr. Ford, then an Etobicoke councillor, was only interested in garnering attention for his mayoral run.