Tuesday, December 17, 2013

Fun With Highlighters - Parsing The Ford Apology Rough Spots

Here is the full text of Rob Ford's apology to Toronto Star reporter Daniel Dale made earlier today.

Without going into commentary on why each part could be seen as lacking the direct, sincere and unequivocal apology generally required to mitigate defamation (most of them are obvious), I simply highlighted some of the phrases that clearly take away from the apology by blaming others, or worse, continuing to sow doubt about Mr. Dale's own actions.

(click to enlarge)

A Word About Apologies...

Rob Ford has taken his no doubt stern legal advice and has apologized - sort of.

[NOTE: Correction to my earlier correction. While Ford used the services of a lawyer for his previous defamation case, his general lawyer Dennis Morris appeared at Mayor's office this afternoon and said to Globe & Mail reporter Ann Hui that he doesn't believe there's any other lawyer involved "anymore". Morris said earlier to Hui that he had not known about Ford's statement earlier today (but said he and Ford had spoken about options last night), so it may be that Ford drew up his statement himself, which is all the more believable given the problems with it.]

In Ford's statement about Dale there was a lot of blaming of others for his belief, he expressed disbelief that people "insinuated" that he meant Star reporter Daniel Dale was a pedophile (see my post below) and he took the opportunity to point out how unfair everyone was to him, especially The Toronto Star. The Star has posted the text. Here is a video of Ford's apology in City Council Tuesday morning.

Ford decided to go with "it's what I thought at the time and it was reasonable in the circumstances", even though he repeated it without qualification several times recently and when given the opportunity to clarify or soften he took the "I stand by every word" approach. The apology also doesn't admit any wrongdoing - only that his words led people to the wrong conclusion, and that he was sorry for that. There were also a number of complaints in Dale's notice that Ford left unanswered.

So an apology - saying "I'm sorry" - ends the Daniel Dale / Rob Ford slander case, right?

Not really. An apology (even a good one) is not a full remedy - it is just one of many things a court will consider in assessing damages for slander. (See: Hill v. Church of Scientology of Toronto, [1995] S.C.J. No. 64)

Canadian courts generally do not have jurisdiction to order a defendant to apologize for a libel or slander, however, a court will take an apology and retraction into account when assessing the amount of a damage award. A good, heartfelt and widely publicized apology can go a long way to keeping your cash damages to a minimum.

A poor apology - one that tries to avoid blame, place it elsewhere, or offer "explanations" - will fall short of the mark and is likely to be considered both unsatisfying to the plaintiff and to the court when it comes to assessing a cash award for damages.

There is also the question of the publication of the apology to make sure it reaches the widest possible audience, at least on par with the original defamatory statement. No doubt Ford's statement in City Council will be picked up by media outlets and rebroadcast, but there is also something sneaky about Ford making the apology unannounced in Council with no notice to Dale as plaintiff. The venue chosen by Ford, as opposed to calling a specific press conference with Dale present, also will go to judging the sincerity and completeness of the apology.

Does Rob Ford's apology meet the standard necessary of unqualified completeness and sincerity to make proceeding with Dale's lawsuit unnecessary or not worth pursuing? I have my doubts.

Stay tuned for updates.

UPDATE (as promised)

Predictably - for all the reasons I mentioned this morning - Daniel Dale has said that Rob Ford's apology is lacking and he is proceeding with the lawsuit.

There will be no doubt those people who cry The Star is picking on Ford, and he apologized for God's sakes... But for all the reasons I mentioned above and Dale himself says below, Ford's apology falls well short of what might be expected to purge the slander or make the pursuit of damages pointless through mitigation.

Saturday, December 14, 2013

Libel, Slander & Incomplete Sentences

Although VisionTV has had the good sense and almost certain legal advice to take down the video, and has ordered it removed from YouTube, most people have heard of Rob Ford's description of Toronto Star reporter Daniel Dale.

For those who missed it, in an interview Conrad Black asked Ford to recall the most "offensive events" that have been "perpetrated" on him or his family by the media. 

Ford said: 
"Well, I guess the worst one was Daniel Dale in my backyard taking pictures. I have little kids. When a guy’s taking pictures of little kids. I don’t want to say that word but you start thinking, ‘What’s this guy all about?’”
In the words of Edward Keenan of The Grid, the facts of the incident are actually as follows:
"Daniel Dale, as previously confirmed by police, was not in the mayor’s backyard. He did not take any pictures of the mayor’s property, nor of his family—a fact also confirmed by police. It was not dark outside at the time, as Ford claims, it was almost an hour before sunset. He was not, as the mayor also claimed, standing on cinder blocks, or peering over the fence—which police confirmed after viewing the mayor’s own security camera footage."
Of course everyone knew what Ford was insinuating when he said "I don't want to say that word." By saying "I don't want to say that word", Ford invited his listeners to fill in the blank with the first and most logical word that comes to mind, illustrated by the fact that the immediate and widespread reaction on traditional and social media was that Ford was calling Dale a pedophile. A few more generously-minded people softened it to the slightly better but still offensive word "pervert".

Either way, calling someone a pedophile or pervert with an interest in "taking pictures of little kids"  would clearly be slander and actionable (i.e: worthy of a successful lawsuit). But what about simply implying it without saying the magic, offensive words themselves?

The question here is, since Ford didn't say the actual word, can he be found liable for defamation of Dale by slander?

Well, yes.

First of all, a definition of defamation. Defamation can be by either written words (libel) or spoken statements (slander). Words are defamatory if they impute improper and disreputable conduct, moral fault or personal characteristics considered disreputable by reasonable persons.

In a series of cases the courts have determined that whether 
any particular statement is defamatory may be determined from the “natural and ordinary meaning” of the words. The words’ natural and ordinary meaning is the meaning they would convey to the typical representative of the reasonable community, “the ordinary, reasonable, fair-minded reader”. The reasonable reader is a person who would read the words with common sense, general and ordinary knowledge, and a general and ordinary understanding of words in common use. 
"Libel In A Nutshell" 2012, P.A. Downard, p. 3

But what about when you don't actually say the "magic words" that cause offense? There has been much chatter that since Ford left the magic words unsaid, he can't be found to have slandered Dale. Unfortunately for Ford, this schoolyard logic doesn't hold up in court:
The “natural and ordinary meaning” also includes any implied, inferential, or indirect meaning a reasonable reader would draw from the words... The plain and ordinary meaning thus includes the general impression a statement is likely to create in the mind of the ordinary reader upon a first reading, not a later analysis or legalistic dissection of the words. The courts appreciate that a person intending to defame another may seek to veil his or her meaning in the hope of evading civil liability.
 "Libel In A Nutshell" 2012, P.A. Downard, p.4

Ford is in particular difficulty since the meaning attached to his statement has been widely interpreted as calling Dale a pedophile. It has been repeated in the media as the inescapable word he "didn't want to say". The sixth grade "I can't help what you're thinking" defence doesn't work in court.

Given the opportunity to correct, apologise, explain or soften his statement, Ford has rather doubled down  the Tuesday after the interview aired and said: "I stand by every word I said with Mr. Black in my interview," knowing what the popular interpretation had been. Rather than apologise, Ford affirmed the alleged slander knowing full well what the public took his meaning to be.

A further distinction without a difference is the suggestion that in speaking with Black Ford was merely "reliving the moment" when he confronted Dale and expressing what he was thinking at the time. The facts as found by the police don't support Ford in his belief that Dale had taken any photos of Ford's children, so it was not a reasonable belief to being with.

It is hard to see how it is any better for a slander action for Ford to say that it was at the time of the confrontation he thought Dale was a pedophile, and in his interview with Black he was just recalling it without saying he no longer believed it to be true. Ford has never apologised for such a mistaken belief and has now repeated it and says that he stands by it. To say that he was merely repeating what he was thinking at some time in the past doesn't excuse a present slander if he leaves the door open for his audience to think he hasn't changed his mind.

Finally, the facts as found by the police in their investigation also don't help Ford in the limited defence to a lawsuit for defamation, which is claiming that the statement is true. All the evidence points to the fact that Ford's version of the events (including his own security camera footage reviewed by the police) is not true. Asserting that it is true in spite of the evidence is not reasonable. Even if there was any evidence that Dale did take photos on Ford's backyard (which there isn't), that is far from proving that he has a perverse interest in Ford's children and is a pedophile, which is where the damage lies.

Trying to assert the "truth" of what Ford said in his Black interview is a defence that will go nowhere and would likely only lead to greater damages being awarded to Dale from an impatient court. Courts have recently held that damages may be increased by the defendant persisting in a plea of justification with knowledge that the words complained of were false (Sutcliffe v. Pressdram Ltd., [1991] 1 Q.B. 153 at 184 (C.A.), per Nourse L.J.).

Regardless, unless there is a full and abject apology forthcoming, Rob Ford has a difficult legal road ahead with few rest stops along the way.

Canada Post To Issue Final Commemorative Stamp

With the surprise and non-nonsensical announcement this week that Canada Post will end home delivery - making Canada the only developed country without it - I felt that a commemorative stamp was in order.

Of course, with the price of a letter going up to $1.00 soon, you'll need two.