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Where is Sam Jarvis when you need him?

By Gary Reid
Tuesday, June 27, 2006

Two centuries ago there was a thoroughly effective method for a gentleman to deal with a scoundrel who published defamatory material about him. The victim would challenge the accuser to a duel to defend his honour. If the accuser declined the challenge then he became the dishonourable one. If he accepted and were wounded or killed, honour was satisfied.

I thought how sensible our forefathers were as I read through the statement of claim of the Toronto Port Authority ("TPA") against Community Air. The TPA is suing this anti-airport lobby organization, and some of its chief activists, for publishing a defamatory memo on its website (now removed), as well as sending copies to a number of government officials. The total damages claimed are around three million dollars.

The memo, as recorded in the claim, impugns the reputations of the TPA, a former Chairman, Henry Pankratz, its CEO, Lisa Raitt and its CFO, Alan Paul. The matter has not yet come to court, so these are only the TPA’s allegations that have yet to be proven in a trial.

The Toronto Star has editorialized that this not a lawsuit that should proceed. The Star is not exactly unbiased since it previously called for the dissolution of the TPA.

However, the point made the Star, one that I have no quibble with, as far as it goes, is that the public have a right to challenge a governmental body and that "legal libel chill" in the hands of the government, to stifle public dissent, is overkill. A couple of cases where municipalities sought to do that and were stopped by the courts were cited in evidence of the principle.

The Star acknowledges that the TPA is not a government and these legal decisions might not be on point, but it argues they should be because:

  1. It is a public agency whose board is appointed by the government;
  2. The appointed members’ jobs are political; and,
  3. Actions taken by the port authority could "change the face of Toronto."

The Star believes the agency and its leadership represent a "fair" topic for political discourse, even if such discourse is "unruly."

The problem is that the discourse has sunk to more than just an unruly level and the fairness principle should apply not just to the topic of the TPA but how it is portrayed in that discourse.

Recently, I opined in CFP on the lack of good judgment being exhibited by some people with regard to publishing items on the Internet. I found that some inveterate e-mailers treat the medium as if it exempted them from any accountability for publishing defamatory material. It does not and should not.

The second problem is that appallingly few people can distinguish between publishable dissent and outright defamation. In simplest terms, name-calling is allowed, even if immature and unruly under the circumstances. So, to write or say that someone is a "fool" or a "dope" is okay, because you are merely expressing your low opinion of them.

It is a different matter to say directly or by innuendo that a person is a criminal or has engaged in criminal conduct. These are allegations that need to be proven by hard evidence. If you don’t have credible evidence of the truth of your statements, if you are merely accusing based on suspicion, then watch out, because you can be sued for slander or libel. It is not merely unruly commentary, it is scandalous.

I met a representative of Community Air at a waterfront public meeting a couple of years ago. He went on at length about the frivolous lawsuit the TPA had brought against the city of Toronto.

When he finished venting, I asked him to explain, if the lawsuit were frivolous, why the city settled with the TPA, giving it land and millions of dollars, instead of going to court and winning a complete victory, particularly since the city was being advised by one of Canada’s outstanding litigation lawyers? Without batting an eye, he said, "Because Mayor Mel Lastman took a bribe."

This is what the executives of the TPA are fighting, public accusations of reprehensible conduct amounting to criminal activity in the performance of their duties. The point of the lawsuit is to force the accusers to present the evidence supporting their claims or suffer the consequences if they cannot do so.

I suspect the TPA is named as a plaintiff in the suit because it is footing the bills of the real plaintiffs, the named individuals. Normally, a corporation cannot sue for defamation. But, I can think of no good reason why individual directors and officers cannot do so, if they are the ones specifically defamed. The fact they work or worked for a public body should have no bearing on their normal civil rights, including their right to defend their reputations.

Watch for Community Air to seek funds (i.e., your tax dollars) from city hall to pay their lawyers to defend their right to make execrable accusations.

Incidentally, if you were wondering about the title to this piece, Sam Jarvis killed Thomas Rideout in a duel, on July 12, 1828. It was the last duel fought in Toronto. Pity.

Gary Reid is a freelance writer and a public affairs consultant.
Gary Reid,
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