In a written ruling Monday, the Court of Appeal sided with a lower court judge, who rejected the action from David Midanik against Betsy Powell in October last year, and ordered him to pay more than $100,000 in legal costs.
"In our view, this defamation action was ill-conceived," the Appeal Court said.
Midanik's complaint against the Toronto Star writer and publisher John Wiley & Sons turned on a paragraph in Powell's book about a Toronto street gang, the Galloway Boys.
In one paragraph, the author wrote that the lawyer — he was acting for one of the gang members accused of murder — identified with Tuco Ramirez in the 1966 Italian spaghetti western classic, and paraphrased a quotation from the character, saying, "I like big men because they fall hard."
Midanik said the offending paragraph, taken in the context of the book, suggested by way of "defamatory innuendo" that he was a hardened criminal, a murderer, rapist, a poor lawyer, dishonest and sleazy — among other things.
Superior Court Justice James Spence threw out the action, saying there was no need to delve into how Tuco had been portrayed in the movie because a "reasonable and fair reader" of the impugned words would not take them to mean what Midanik said they would.
"The words complained of…are not capable of bearing those defamatory meanings," Spence ruled in summarily dismissing the action.
Midanik turned to the Appeal Court, which sided with Spence.
The court said the lawyer had focused on the words in the book in their "natural and ordinary" meaning, which were not defamatory.
"These words, read as a whole and in context, are far removed from the meaning suggested by Midanik," the Appeal Court found.
The court also awarded legal costs for both Powell and the publisher, saying the result of the summary judgment motion was not surprising. However, the amount was less than what Spence had ordered on the grounds that he had misconstrued a costs rule.
Midanik must pay Powell a total of $24,500 for the action and another $17,400 for the appeal, the court ruled. John Wiley & Sons gets $77,000 for the failed action and another $18,100 for the failed appeal.Suggest a correction