Tuesday, December 17, 2013

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.