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ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:
TBA Plaintiffs -andROB FORD Defendant Proceedings under the Class Proceedings Act, 1992 STATEMENT OF CLAIM TO THE DEFENDANT A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiffs. The claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the Plaintiff’s lawyer or, where the Plaintiff does not have a lawyer, serve it on the Plaintiff, and file it, with proof of service in this court office, WITHIN TWENTY DAYS after this statement of claim is served on you, if you are served in Ontario. If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence. IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.
Date ........................................................................... Issued by ............................................................... Local registrar Address of Court Office .............................................................. ................................................................................... TO Rob Ford Office of the Mayor Toronto City Hall, 2nd floor, 100 Queen St. West, Toronto, ON, M5H 2N2
CLAIM 1. The Plaintiffs claim on their own behalf and on behalf of the Class for: (a) an order certifying this action as a class proceeding and appointing them representative Plaintiffs of the class; (b) a declaration that the Defendant acted negligently and in bad faith in his role as Mayor of Toronto; (c) a declaration that the Defendant breached his duties under sections 131 and 133 of the City of Toronto Act, 2006; (d) general damages in the amount of $2,615,060.00 for harm to the reputation of the Plaintiffs; (e) special damages in an amount to be determined for loss of business opportunities to the Plaintiffs; (f) punitive damages in the amount of $2,615,060.00 for the bad faith breach of the City of Toronto Act; (g) costs of this action on a substantial indemnity basis, including Harmonized Sales Tax; and, (h) such further and other relief as this Honourable Court may deem just. THE PARTIES The Plaintiffs 2. The Plaintiffs representing members in subclass A are residents of Toronto whose reputation has been negatively impacted by the Defendant’s admission to smoking crack cocaine coupled with his refusal to resign. The Defendant’s actions have humiliated the Plaintiffs and harmed their reputation. 3. The Plaintiffs representing members in subclass B operate businesses in the City of Toronto who rely on the brand of the City of Toronto (the “Toronto Brand”) to earn a living. The Defendant’s
negligence and bad faith devalued the Toronto Brand, causing the Plaintiffs future loss of business opportunities. The Defendant 4. The Defendant, Rob Ford, resides in the City of Toronto, in the Province of Ontario. The Defendant is Mayor of the City of Toronto. CLASS DEFINTION 5. The Plaintiffs representing Subclass A bring this action pursuant to the Class Proceedings Act, 1992, S.O. 1992, c.6 on behalf of the following (the “Subclass A members”): all residents of Toronto whose reputation has been negatively impacted by the actions in bad faith of the Defendant. 6. The Plaintiffs representing Subclass B bring this action pursuant to the Class Proceedings Act, 1992, S.O. 1992, c.6 on behalf of the following (the “Subclass B members”): business owners in the City of Toronto who rely on the image or brand of Toronto as a source of income and lost business opportunities due to the tarnishing of that brand, as a result of the bad faith actions of the Defendant. FACTS SUPPORTING THE CLASS MEMBERS’ CLAIM AGAINST THE DEFENDANT 7. On or about May 16, 2013, news media reported that a video appeared to show the Defendant, the Mayor of the City of Toronto, smoking crack cocaine and commenting on political issues. 8. On May 17, 2013 the Defendant denied such a video existed or that he uses crack cocaine. 9. On October 31, 2013 the Toronto Police announced they were in possession of the alleged video. The Defendant rejected calls to resign as Mayor of the City of Toronto. 10. On November 5, 2013 the Defendant admitted to using crack cocaine and announced that he would not resign. The Defendant’s remarks appeared in international news media and comedy shows. 11. On November 13, 2013 court documents were released detailing further inappropriate and illegal behaviours of the Defendant while occupying the position of Mayor of the City of Toronto. The Defendant admitted to purchasing illicit substances while acting as Mayor of the City of Toronto. 12. On November 13, 2013 the City Council of Toronto asked the Defendant to take a leave of absence, which he refused. The proceedings were broadcasted live in the United States of America on CNN, and globally on numerous other media outlets and digital media platforms. 13. On November 14, 2013 the Defendant admits that he may have driven under the influence of alcohol1 14. On November 14, 2013 the Defendant used sexually graphic language in response to allegations the defendant made sexually inappropriate remarks to a former staffer.2
Emily Mathieu and Jennifer Pagliraro, “Rob Ford admits that he may have driven after drinking”, The Toronto Star,(14 November 2013) online: thestar.com <!""#$%%&&&'"!()"*+',-.>.
15. On November 15, 2013 the City Council of Toronto counsellors vote to remove the Defendant’s authority during emergencies, stripped his power to hire and fire the Deputy Mayor and appoint members of the executive committee.3 16. In response to the vote of the City Council, the Defendant stated that “If I would have had a mayor acting the way I conducted myself, I would have done the same thing.”4 17. The Plaintiffs’ reputation has been negatively impacted by association to their Mayor who admits to using crack cocaine and refuses to resign from office. 18. The value of the Toronto Brand has been diminished as a result of the Defendant’s inappropriate behaviour and notoriety. 19. Several marketing experts and businesspeople have said that the circus created by the Defendant has impacted the Toronto Brand: a. Gabor Forgacs, professor at the Ted Rogers School of Hospitality and Tourism Management at Ryerson University told the CBC that the Ford coverage “weakens the brand, it distorts it, and it gives us media [coverage] all over the world that is undesirable.”5 b. Bruce Poon-Tip, founder of adventure travel company G Adventures, said/“I do think this damages the reputation of our city and the hard work of a lot of people who have worked hard to build Toronto back from the days of SARS.”6 c. Alan Middleton, assistant marketing professor at York University's Schulich School of Business, told The Toronto Star that the scandal surrounding the mayor – and council’s inability to deal with it, has made the city a tougher sell to prospective investors, who prefer to do business with stable governments.7 d. Andrew Laing of Cormex Research, a Toronto-based media research firm explained to the Globe and Mail that “[t]he governance of this city has been absolutely ridiculed right around the world. Why anybody down the road would think favourably on this city as a place to invest in, I don’t know,” he said. “Could you imagine being a group of Toronto businessmen trying to get the Olympic bid with this kind of profile?”8
“Rob Ford: ‘enough to eat’ comment met with disgust”, The Huffington Post, (14 November 2013) online: The Huffington Post Canada </http://www.huffingtonpost.ca>. 3 “Rob Ford Stripped of key powers in counsel vote” CBC, (November 15 2013) online: CBC News <!""#$%%&&&',0,',*1. 4 Natalie Alcoba and Josh Visser, “Rob Ford vows not to go down without a fight after vote strips him of key powers” (15 November 2013), National Post online:<!""#$%%&&&'2*"3-2*4#-)"',-.1. 5/Andre Mayer, “Mayor Rob Ford’s crack use 'weakens' Toronto’s brand”, (November 7 2013) online: CBC News <!""#$%%&&&',0,',*1. 6/Janet McFarland and Carrie Tait7/“Toronto’s business community gives Ford a thumbs-down”, (November 15, 2013) online: The Globe and Mail <http://www.theglobeandmail.com>/ 7 Dana Flavelle, “Ford scandal hurting city's global image, report finds”, (November 13, 2013) online: thestar.com <!""#$%%&&&'"!()"*+',-.>. 8/Janet McFarland and Carrie Tait7/“Toronto’s business community gives Ford a thumbs-down”, (November 15, 2013) online: The Globe and Mail <http://www.theglobeandmail.com> !
20. The depreciation of the value of the Toronto Brand resulted in losses of business opportunities to the Plaintiffs. 21. The Defendant acted and continues to act in bad faith. LEGAL BASIS FOR THE CLAIM AGAINST THE DEFENDANT The Defendant has a Duty to the Plaintiffs. 22. As the Mayor, the Defendant owes the Plaintiffs a duty to act in the best interests of Toronto and to maintain the financial integrity of the City. 23. The City of Toronto Act, 2006 requires the City Council “to consider the well-being and interests of the City”, and “to maintain the financial integrity of the City.”9 As a member and head of the City Council, the Defendant is bound by these duties of the City Council.10 24. As member and head of City Council the Defendant is liable to residents in the City of Toronto when he breaches his duties under the City of Toronto Act, 2006 in bad faith. The Defendant breached his Duties to the Plaintiffs. 25. The Defendant’s admission to smoking crack cocaine coupled with his persistence to remain in office breached his duties to 1) consider the well-being and interests of the City and its people, and 2) maintain the financial integrity of the City. 26. First, a criminal conviction leading to incarceration is grounds for removal of a Mayor from his office.11 While not convicted, the Defendant admitted to possessing and purchasing illicit substances while acting as Mayor of the City of Toronto, which could lead to his removal from office if charged and convicted. Therefore the commission of these crimes while remaining Mayor is against the well-being and interests of the City. These actions tarnished the reputation of the City of Toronto and resulted in a negative financial impact on the Toronto Brand. Further, many members of the City Council have stated that the negative and overwhelming media attention surrounding City Hall is impairing the ability to conduct daily businesses at City Hall. 27. Therefore, in admitting to using crack cocaine and remaining in office the Defendant blatantly breached his duty to consider the well-being and interests of the City. 28. Secondly, the Defendant’s numerous displays of intoxication while in public and his admission to smoking crack cocaine coupled with his persistence to remain in office also breached his duty to maintain the fiscal integrity of the City. 29. The Toronto Brand is an essential asset of the City of Toronto worth millions of dollars. Members of Subclass B rely on this asset to make a living or secure partnerships with foreign investors. The Defendant’s “drunken stupors” tarnish the value of the Toronto Brand and jeopardized the value of one of the City’s most significant assets – its brand.
City of Toronto Act, 2006 S.O. 2006, c. 11, Sched. A, ss 131(a), (f). Ibid s.133(1). 11 Municipal Act, 2001, S.O. 2001, c.25 ss 259(1)(a).
The Defendant acted in Bad Faith 30. The Defendant continues to breach his duties in bad faith. He has ignored collective calls from the City Council to step aside and he has conceded that if he “would have had a mayor acting the way I conducted myself, I would have done the same thing.”12 While this admission demonstrates that the Defendant knows that his actions are harmful to the Plaintiffs, his persistence to remain in office with that knowledge shows that he is acting in bad faith. The Breach of Duties caused damages to the Plaintiffs 31. The Plaintiffs representing Subclass A’s reputation has been negatively impacted by unintentionally being associated to a Mayor who: a. admits to using crack cocaine, b. has been filmed publically intoxicated, c. has admitted to criminal activities while acting as Mayor, d. and refuses to resign. 32. These actions turned the city of Toronto into an easy target for comedy shows and negative commentary worldwide. This media attention has had a negative impact on the reputation of residents of Toronto. 33. According to marketing experts, the Defendant’s admission to smoking crack cocaine also created obstacles to the Plaintiffs representing Subclass B’s businesses by: a. Devaluating the Brand, b. Distorting the image of Toronto, c. Receiving world-wide negative attention, d. Damaging the reputation of the City, e. Presenting a city with an unstable government, making it less appealing for investors, and f. Creating a negative and long lasting profile of the City which is unappealing for world class events that bring millions into Toronto 34. The refusal to resign has damaged the Brand of Toronto, an asset worth millions, and resulted in the loss of business opportunities for the Plaintiffs representing Subclass B. The Defendant should have foreseen the damages to the Plaintiffs 35. The Defendant should have foreseen that his behaviour and subsequent refusal to resign would create a scandal and damage the Plaintiffs representing Subclass A’s reputation. A reasonable person in a similar position to that of the Mayor should have known that being the subject of
supra, note 1.
ridicule from the world media causes embarrassment to its constituents and harms their reputation. 36. As the Mayor of Toronto, the Defendant should have foreseen that the damage to the Toronto Brand would result in the loss of business opportunities to Plaintiffs representing Subclass B. This result was foreseeable because a reasonable person similarly situated would have known that admitting to smoking crack cocaine and remaining in office would tarnish the reputation of one of the largest cities in North America. DAMAGES 37. As a result of the Defendant’s negligence, the Plaintiffs and members of Subclass A sustained general damages to their reputation. The reputation of every resident in Toronto has been negatively impacted by the Defendant’s negligence. Therefore, the class seeks from the Defendant a symbolic amount of $1 per resident in Damages. 38. As a result of the Defendant’s negligence, the Plaintiffs and members of Subclass B sustained pecuniary damages by losing business opportunities to be determined. 39. The Plaintiffs accordingly seek, on their own behalf and on behalf of the proposed class members for this action, punitive damages against the Defendant for negligently breaching his duty to uphold the financial integrity of the city under the City of Toronto Act, 2006. Since the Defendant owes this duty to every resident in Toronto, the Plaintiffs seek a symbolic amount of $1 per resident in Damages. 40. The Plaintiffs accordingly seek, on their own behalf and on behalf of the proposed class members for this action, appropriate remedies and damages against the Defendant for negligently upholding the duty to consider the well-being and interests of the city under the City of Toronto Act, 2006. RELEVANT STATUTES 41. The Plaintiffs plead and rely upon the following statutes and regulations thereunder, as amended: the Courts of Justice Act, R.S.O. 1990, c. C.43, the Negligence Act, R.S.O. 1990, c.N-1, the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A, the Municipal Act, 2001, S.O. 2001, c.25, Class Proceedings Act, 1992, S.O. 1992, c. 6.
November 18, 2013
José Bento Rodrigues
RCP-E 14A (July 1, 2007)
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