TORONTO - A Canadian magazine article that has already drawn a libel action is due to hit the stands Thursday after the prominent businessman it profiles failed to win an injunction against the publication.
In his notice of action, Michael Elder argues the Toronto Life story could cost him his livelihood by suggesting he's a con man.
"I do not believe that freedom of expression should protect shoddy journalism designed to ruin my life," Elder says in an affidavit.
"There are numerous people they could have approached to correct their falsehoods but they deliberately chose not to do so."
The article in question called "The Charming Mr. Elder" profiles his 13-year attempt to fund and develop a computer tablet called Quillmate, which he describes as a "mobile data capture platform" — a project he says is worth as much as $130 million.
Among other things, court documents filed by Elder say the profile raises questions about who owns the patents for the project and suggests that Elder may have tried to raise money for a project that wasn't his.
"The above statements are totally false," according to the notice, which seeks $100 million in damages.
"The words used are meant by the defendants to convey the implication that the plaintiff is a fraudster."
At a hearing Monday, Elder asked the courts to restrain Toronto Life from publishing. The son of Olympic equestrian Jim Elder argued he was on the verge of completing financing worth US$20 million to "facilitate the global development of Quillmate."
In response, Toronto Life said it stood behind the story, saying an injunction would be tantamount to an attack on freedom of expression.
The facts in the article are "materially true," responsibly reported and fair comment on a matter of public interest, editor Sarah Fulford said in an affidavit.
Elder, she said, failed to respond properly to repeated inquiries Posner had made of him until almost 93,000 copies of the magazine had been printed and distributed.
In arguing against the injunction, Toronto Life said it stood to lose $475,000 on the May edition if unable to publish — and potentially millions in the longer term if the brand were damaged.
Elder has a "history of defaulting on his financial obligations" and can't be relied on to compensate the magazine for its losses if it proves successful in defending itself against him, Toronto Life said in its factum.
In the end, Ontario Superior Court Justice Stephen Firestone refused to issue a non-publishing injunction and ordered Elder to pay $17,000 in costs.
Elder's lawyer Paul Robson said Wednesday he believed Firestone made errors and said he would appeal to Divisional Court in hopes of winning support for the libel action.
"The guy's been crucified and I don't think he's crucified in a way that will be upheld," Robson said.