As Rob Ford's lawyers get set to make final submissions today in the $6 million libel suit filed by Boardwalk Café owner George Foulidis, we dissect the key parts of Ford's legal defence.
The mayor has said the 20-year lease agreement signed between the city and Foulidis in 2010 over operation of the Woodbine Beach cafe, also known as the Tuggs deal, smacked of civic "corruption" and "stinks to high heavens." But does his defence pass the stink test?
Ford's lawyers claim: The suit brought against Ford is politically motivated.
The mayor's statement of defence argues that Foulidis's lawsuit in the heat of the 2010 mayoral race is "frivolous and vexatious," an "abuse of process" filed to hurt the mayor's reputation and his election chances.
It has been noted by some Ford friendlies among the media that Brian Shiller, the lawyer representing Foulidis, happens to be the legal partner of Clay Ruby, who's representing Paul Magder, the guy who brought conflict of interest charges against Ford.
Reality check: If anyone was motivated by politics in this case, it's the mayor.
When he used the c-word at an editorial board meeting at the Sun to describe the lease agreement between Foulidis, Ford knew exactly what he was doing. And that his words would be splashed on the front page of the Sun. "Corruption" is not a word whose meaning can be misunderstood. And it's not one that's thrown around lightly in a room full of journalists.
Context is important here. At the time the allegations were made by Ford in August 2010, he'd just taken over as frontrunner in the mayoral race. His freak out was calculated, just what the angry masses wanted to hear from the stop the gravy train mayoral candidate.
It doesn't take much to wind the mayor up. And judging from the audio of the Sun meet, made public last week, it's clear he was taking his cue from his big bro, Doug, who was also at the Sun editorial meeting. Doug evoked the infamous graft case of Illinois State Governor Rod Blagojevich, who was sentenced to 12 years for selling to Illinois state Senate seats, when he weighed in on the Tuggs deal.
"If this was Chicago or anywhere in the States, they'd be in front of a grand jury and they'd be indicted and they'd be in jail right now." For a guy who hadn't been elected yet, Doug sure talked like he know a lot about the Tuggs deal. But that's another story.
On the witness stand Friday, the mayor said he could not offer any proof the Foulidis deal was sleazy. He shifted gears, tried to explain that it was the process itself, the fact that some of the debate on the lease agreement took place in-camera, which was "corrupt."
Except in an appearance on CFRB to talk about the deal before his Sun meeting, Ford answered in the affirmative when Jerry Agar asked him point blank, "Is someone getting money under the table?" Ford's response: "I truly believe they are."
Ford's lawyers claim: Foulidis's action was a pre-emptive strike, a SLAPP suit, aimed at silencing the mayor and preventing him from re-opening the lease deal once he took office.
Ford's lawyers also seem to be relying on technical arguments in this case, aside from the verbal gymnastics to mitigate the damages from Ford's use of the term "corruption."
His lawyers claim that anything the mayor may have said in the Agar interview is "statute-barred" since Foulidis did not file a notice of libel when the mayor made the comments.
They also argue that the mayor was not properly served with the libel documents. They were delivered to his campaign office. Finally, Ford's lawyers also claim Foulidis can't rightly sue the mayor because he's only an officer of Tuggs Inc., the corporate entity with which the city signed the lease, not its owner. Foulidis is in fact the owner of the company.
Reality check: The libel chill argument advanced by Ford's lawyers makes a big presupposition - that the lease deal the city cut with Foulidis could be re-opened. Not that easy.
Ford would need a two-thirds vote of council. Hardly a given. But that's not even the hard part. By breaking the contract, the city would be opening itself up to a lawsuit. More importantly, it would be setting the kind of precedent that would scare away business. The city is a corporation, after all. And as a corporation the regular rules of proprietary and contractual obligations apply.
Foulidis's motivation for filing suit was simple. He'd been accused of criminal behaviour. His business had been attacked. His reputation as a businessman was brought into question publicly by a person in a position of power. Foulidis had no choice but to sue. Foulidis offered the mayor an out. He called a press conference to ask the mayor for an apology. It never came.
How would it look if Foulidis hadn't sued? It'd be read as an admission of guilt. More to the point, how would Ford have reacted to corruption charges being hurled at his family business?
Foulidis's lawyer posed the question to the mayor. The mayor reared up a little in his chair. The answer was obvious. Ford would go after the guy with extreme prejudice. But the mayor tried to pretend otherwise.
Ford's lawyers claim: The "corruption" allegations made by the mayor are "fair comment made without malice on a matter of public interest." Ford "acted diligently in trying to verify the [corruption] allegation."
Reality check: People in positions of authority, like politicians, are given wider latitude to make statements that might be considered libelous. The courts have also broadened the definition of what constitutes fair comment in recent years - a good thing for free speech, since the onus of proof in Canada is reversed in libel cases. It's the defendant that must prove his or her comments are not slanderous.
But to suggest the words attributed to Ford were uttered for anything but political gain would be a stretch.
What's clear from he mayor's testimony is that he was relying on rumour and hearsay when it came to what he knew about Foulidis's lease deal with the city.
Certainly, Ford's voting record on the Tuggs deal suggests he wasn't overly concerned about it, until he ran for mayor. Ford did not vote at the September 2006 council meeting the first time the lease came up. Ford also did not vote at the May 2010 council meeting at which the lease terms recommended by staff were approved.
Ford failed to vote a third time on the lease when it came up at the audit committee of which he was a member in July 2010. There a motion for the auditor general to review the deal was defeated.