By David Helwig
Monday, September 13, 2010
The Ontario Superior Court of Justice has dismissed a multimillion-dollar libel suit brought against SooToday.com and the Sault Ste. Marie Police Service by a former Toronto chartered accountant convicted a decade ago of defrauding clients in the film and entertainment industry.
A four-man, two-woman jury decided Friday night that a fraud alert, issued by City Police and subsequently distributed by SooToday.com, contained errors that defamed Kofi Hadjor (shown).
But the alert was substantially true and the errors not significant enough to materially injure Hadjor's reputation, the jury said.
The jury determined that neither SooToday.com's David Helwig nor Staff Sergeant Monique Rollin, who at the time headed the local fraud squad, were motivated by malice toward Hadjor.
Publication of the alert by Rollin and City Police was protected by the defence of qualified privilege because police had a duty to issue the alert and the business community had a corresponding interest in receiving it, Sault lawyer John Walker successfully argued.
Testimony during the two-week trial at the Sault Ste. Marie Court House indicated that Hadjor was interested in buying and renovating Salzburger Hof Resort at Batchawana Bay and the Buckeye resort.
He hoped to persuade charities serving the Canadian poor to send 1,000 staffers to Batchawana at a cost of at least $3,700 each, to listen to presentations by Hadjor, learn how to access government funding and participate in local eco-tourism activities including the Agawa Canyon Tour Train.
An independent analysis of the plan, commissioned by SooToday.com from BDO Dunwoody, cast doubt on its viability.
Hadjor also talked about opening a three-person sales office in Toronto to pre-sell Batchawana registrations, on the assumption that hard-pressed charities would be willing to essentially turn over thousands of dollars of cash advances to a man convicted of frauds that were widely reported by Canadian media organizations, as well as in Dale Goldhawk's 2003 book Getting What You Deserve.
Lawyer Brian DeLorenzi successfully argued that Helwig and SooToday.com were protected by the defences of fair comment and responsible communication.
Superior Court Justice Edward Koke remarked that this was one of the first jury cases to use the new defence of responsible communication, established last December by the Supreme Court of Canada.
The new defence is available to journalists writing about matters of public interest, provided that they exercise appropriate diligence in attempting to verify allegations, having regard to:
- The seriousness of the allegation.
- The public importance of the matter.
- The urgency of the matter.
- The status and reliability of the source.
- Whether the plaintiff's side of the story was sought and accurately reported.
- Whether the inclusion of a defamatory statement was justifiable.
- Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth.
- Any other relevant circumstances.
SooToday.com provided evidence that between 20 and 30 sources were consulted in preparing our report about the Hadjor fraud alert, and that we had tried to reach Hadjor for his side of the story, but were unable to locate him.
Testimony indicated that contents of the fraud alert were also reported by Q104 Radio, which was not named as a defendant in the case.
The Sault Ste. Marie Chamber of Commerce, which distributed the police fraud alert to hundreds of its members, was originally sued but reached an out-of-court settlement with Hadjor.
Hadjor's lawyer, Osborne G. Barnwell of Toronto, argued that his client has rehabilitated himself since his fraud convictions in 2000 and that the police alert and SooToday.com's coverage were therefore unfair, preventing Hadjor from consummating his dream of serving Canada's poor at Batchawana Bay.
Justice Koke expressed hope that Hadjor will yet find a way to use his considerable talents for lawful purposes.
"I'd like to read some very positive things about you on the Internet some day," the judge said.