Rob Ford, Sarah Thomson ‘inviting each other to sue’
With the war of words between Sarah Thomson and Mayor Rob Ford ratcheting up by the day, legal experts say the two politicians are treading on libellous territory.
Neither party has said they want to go to court to settle the dispute over what happened at a fundraiser hosted by a Jewish group Thursday night. But the battle lines have become increasingly entrenched since Ms. Thomson first alleged on social media that the mayor made a suggestive comment and grabbed her buttocks.
After Mr. Ford questioned whether she was “playing with a full deck” on his radio program Sunday, Ms. Thomson went on the offensive Monday, suggesting the mayor might have been on cocaine at the party — although she had no proof to bolster the claim.
The mayor made no further comment on the matter as he left City Hall Monday with a beach ball and his young children in tow.
“They are in a pissing match with each other,” said Howard Winkler, who has practiced defamation law for 27 years. “It’s almost as if they are inviting each other to sue. It may be a Mexican standoff in the end and neither will do anything.”\
They are in a pissing match with each other
Indeed, taking this duel into the public arena of litigation could expose each side to a level of scrutiny that neither wants to endure, or even amplify the allegations, lawyers say.
Ms. Thomson, who said she stood by her words and was prepared to “stand up in court” if she had to, told reporters Monday that she looked up the symptoms she believes Mr. Ford displayed that night — erraticness and arrogance — and “it looked like it was cocaine use.”
“It could have been anything like that; I’m not sure what it is. I’ve also read that diabetes could have some odd effects. I’m not sure what was wrong with him, but there was definitely something wrong with him that night,” Ms. Thomson said.
Julian Porter, a lawyer with a specialty in defamation law, called the cocaine allegation “wild, unless she really has something to go on.”
In Ontario, defamation is defined as the act of harming someone’s reputation by making a false statement. Mr. Winkler, with the firm Aird & Berlis, said the legal test of a defamatory statement — that it tends to lower the reputation of a person in the eyes of the community — is easily met, and he believes statements uttered by both parties in this instance amount to it. The real debate in court would be whether either side can draw on the various defences available to them in law.
Ms. Thomson could defend herself on the basis of “truth,” but to do so, she would not only have to prove that Mr. Ford’s hand came into physical contact with her, but that his intent was sexual, Mr. Winkler said.
“She would have to prove his state of mind,” he said.
The burden of proof is lower in civil cases than in criminal ones, but “the judge has to believe her more than him that it did happen,” added defamation lawyer Gil Zvulony.
Conversely, Ms. Thomson could choose to sue Mr. Ford for what he suggested about her state of mind on the radio. The mayor is entitled to respond to an attack, but a court would consider whether he went too far. Mr. Ford could also argue the defence of fair comment, but in doing so would have to present underlying facts — a pattern of erratic behaviour, for example — that would reasonably lead to his opinion. Fair comment does not apply if there is malice.
Mr. Zvulony said the bottom line would be: Did Mr. Ford grab Ms. Thomson’s buttocks or not? While one could argue that a touch may have been misconstrued, “there is not really much middle ground,” he said. “Somebody is lying.”
Paublished by National Post on March 11, 2013