1

Court File No. CV-16-543848

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

BRUCE BARROW

Plaintiff

- and -

THE CORPORATION OF THE CITY OF TORONTO,

JOSH COLLE, MICHAEL THOMPSON and JOHN TORY

Defendants

STATEMENT OF DEFENCE

1. The Defendants admit the allegations contained in paragraphs 3 – 6 of the Statement of

Claim.

2. The Defendants have no knowledge of the allegations contained in paragraphs 2 and 7 of

the Statement of Claim.

3. Except as hereinafter expressly admitted, the Defendants deny the allegations in the

remainder of the Statement of Claim, and put the Plaintiff to the strict proof of such allegations.

Overview

4. Interactive, three-dimensional signs bearing the name of a city are commonplace around

the world. They can be found in Amsterdam, Guadalajara, Budapest and most recently, in

Toronto.

2

5. This claim relates to the colorful, three-dimensional, human-scaled sign consisting of the

letters T,O,R,O,N,T,O currently located at Nathan Phillips Square (the "TORONTO sign"). The

TORONTO sign is the product of the creative work of City of Toronto (the "City") staff which

stems all the way back to 2010. The precise details of the sign, such as look, size, use,

portability and location were all conceived by City staff, completely independent and without

any knowledge of the Plaintiff's CityBrand presentation.

6. The TORONTO sign bears no resemblance to the ideas in the Plaintiff's CityBrand

presentation.

7. Lastly, all of the Plaintiff's meetings with the Defendants post-date the design of the

TORONTO sign.

The Parties

8. The defendant City, incorrectly named as the Corporation of the City of Toronto, is a

municipality incorporated pursuant to section 2(2) of the City of Toronto Act, 1997, S.O. 1997, c.

2. and continued pursuant to section 125(1) of the City of Toronto Act, 2006, S.O. 2006, c.11.

9. The defendant Josh Colle ("Councillor Colle") is a member of Toronto City Council and

the elected Councillor for Ward 15 in the City. At all materials times he was acting in good faith

and in the performance or intended performance of a duty or authority under the City of Toronto

Act, 2006, or a by-law passed under it.

3

10. The defendant Michael Thompson ("Councillor Thompson") is a member of Toronto

City Council and the elected Councillor for Ward 37 in the City. At all materials times he was

acting in good faith and in the performance or intended performance of a duty or authority under

the City of Toronto Act, 2006, or a by-law passed under it.

11. The defendant John Tory ("Mayor Tory") is presently a member of Toronto City Council

and the elected Mayor of the City. At all materials times he was acting in good faith and since

his election, has acted in the performance or intended performance of a duty or authority under

the City of Toronto Act, 2006, or a by-law passed under it.

History of the TORONTO sign

12. The City's Economic Development and Culture Division (the "EDC Division") is

comprised of approximately 300 City employees with backgrounds in, among other things,

marketing, branding, public relations and advertising. The EDC Division's responsibilities

include the marketing, advertising and promotion of events and campaigns hosted by the City.

For example, EDC Division staff were responsible for the creation of the Summerlicious,

Winterlicious and Nuit Blanche campaigns. The City denies that it lacks the vision or credentials

to create the TORONTO sign.

2010: xoTO Campaign – The Creation of the Sign

13. In 2010 the EDC Division pursued a City branding and marketing initiative entitled

"xoTO" to foster civic engagement among residents. The "xoTO" initiative was designed to

create a social media platform whereby residents could share their experiences living in the city

of Toronto.

4

14. One component of the "xoTO" campaign was the creation, by City staff, of a 3-

dimensional, interactive sign bearing the letters x, o, T and O.

15. The sign was inspired by the iAMSTERDAM sign from Amsterdan, Netherlands and

other similar signs which are common place around the world.

16. The xoTO sign, like the subsequent TORONTO sign, was designed with the following

features:

Interactive

Human-scaled

Illuminated

Transportable

17. The City created and obtained mock-ups of the xoTO sign and received fabrication

quotes from several vendors. However the City ultimately chose to end the "xoTO" campaign

and did not construct the "xoTO" sign.

2012: Pan American and Parapan American Games ("PanAm Games") - The Resurrection of

the Sign

18. In 2009 the City of Toronto was announced as host of the 2015 PanAm Games.

19. The EDC Division was responsible for creating key elements of the marketing

communications strategy for the City, as host city of the PanAm Games. This included the

creation of a Host City Welcome and Engagement Program, which would feature initiatives to

decorate the City for the games and generate excitement and engagement.

5

20. The "xoTO" sign idea was quickly resurrected by City staff as part of the Host City

Welcome and Engagement Program. The design concepts already established in the "xoTO"

sign were utilized in creating the TORONTO sign.

21. Between 2012 and 2015 the planned TORONTO sign was openly discussed and

presented at meetings within the EDC Division, inter-divisional meetings with other City

divisions and external meetings with the Toronto Organizing Committee for the 2015 PanAm

Games and other host municipalities.

22. In February, 2014 City staff drafted a proposal outlining the specifications of the

TORONTO sign which was a culmination of all of the ideas and work that was developed on the

sign since 2010 (the "Proposal").

23. The Proposal provided the following description for the TORONTO sign:

"oversized 3-D TORONTO sculpture that people can climb on/through"

"Proposed location for the Toronto sculpture, leading up to and during games

time, is on Nathan Phillips Square…"

Intention for the sculpture to move to a different location after the PanAm games

"the design should subtlty (sp) incorporate a nod to PanAm directly in/on the

sculpture (i.e. year, sports, colours). Affiliation can be temporary and later

removed if so desired"

"Size: Approximately 56' wide x 9' tall x 2' wide"

"Non-slip surface"

"Lighting design (internally lit with LED's at night – so it glows)"

24. The Proposal attached photos of similar 3-D interactive sculptures that can be found

around the world in cities such as Amsterdam, New York and Guadalajara.

6

25. Between approximately March and April, 2014 the Proposal was circulated amongst

senior management in the EDC Division. On April 15, 2014, the Proposal was presented to

Michael Williams, General Manager of the EDC Division, three months before his meeting with

the Plaintiff. The Proposal was subsequently approved to proceed in the form of a Request for

Proposal.

26. On or about January 20, 2015 the City of Toronto issued Request for Proposal No. 9149-

15-7016 (the "RFP") for the management and fabrication of the TORONTO sign. The RFP was

drafted by City staff and based on the specifications outlined in the Proposal. The RFP remained

consistent with the Proposal in terms of description, use, location, portability, incorporation of a

temporary PanAm Games element, lighting and approximate size.

27. In or about March, 2015, the City entered into an agreement with the successful bidder of

the RFP and fabrication of the TORONTO sign subsequently commenced.

28. The TORONTO sign was finally installed at Nathan Phillips Square on Monday, July 6,

2015, 4 days before the opening ceremonies of the PanAm Games which was held on July 10,

2015.

29. All of this work was done completely independent of the Plaintiff's CityBrand

presentation.

7

The CityBrand presentation bears no resemblance to the TORONTO sign

30. The Defendants deny that the TORONTO sign bears any resemblance to the CityBrand

presentation. The CityBrand presentation was fundamentally different from the TORONTO sign

in terms of both purpose and aesthetics:

CityBrand Presentation TORONTO Sign

Purpose Creation of a brand "icon" for the City of

Toronto

Interactive structure that will generate

buzz and interest for the PanAm Games

with the potential for the structure to

remain after the PanAm Games

Interactive

Nature

Inaccessible to the public

Sign to be viewed from a distance as part

of the landscape

Interactive, human-scale structure which

members of the public are encouraged

to interact with (sit on, climb through,

stand on)

Location Proposal of three different locations: CN

Tower, Don Valley Embankment,

Toronto Harbourfront

Contrary to paragraphs 9 and 46(c) of the

Statement of Claim, the CityBrand

presentation makes no reference to City

Hall or Nathan Phillips Square

Contrary to paragraph 53 of the Statement

of Claim, the CityBrand presentation

makes no reference to the selection of

various locations based on consumer

research

Nathan Phillips Square with the

intention to move the TORONTO sign

after the PanAm Games.

Portability Not portable.

Contrary to paragraph 51 of the Statement

of Claim, the CityBrand presentation

makes no reference to the portability of

the sign

Portable.

Size Akin to the Hollywood Sign (50 ft. tall,

200 ft. wide)

"BIG and BOLD"

Much smaller, approximately 12 feet

high (with plinth), 3-4 feet deep, 74 feet

total wide

8

CityBrand Presentation TORONTO Sign

Name on Sign Uncertain. The presentation proposes

three different options : TORONTO, T.O.,

T

TORONTO

Lighting Illuminated with pixel style editing so the

sign would be comprised of thousands of

different design pattern which would

reflect the people of the City of Toronto

that are integrated into the sign through

posting on social media and streamed

video

Internally illuminated with LED lighting

No pixel style editing

Incorporation

of PanAm

Games

No mention of the PanAm Games Exterior removable wrap, in the PanAm

Games branded graphics, around the

sides of the letters of the sign

Reveal Multi-tier, multi-media countdown

campaign to build anticipation and

excitement long before the actual sign is

actually erected

Deliberate decision to make no prior

announcement; no campaign

#share3DTO Neither #share3DTO nor any sort of

hashtag were proposed in the CityBrand

Presentation

#share3DTO was placed on the base of

the sign to foster social sharing,

aggregate online posts concerning the

TORONTO sign and to enable the

measurement of impressions on media

platforms

Material Not specified Steel frame, aluminum cladding and

translucent polycarbonate front and

back

31. The Plaintiff's CityBrand presentation features the HOLLYWOOD sign located in Los

Angeles, California and proposes the erection of a sign equivalent in size and type within the

City. The CityBrand presentation contains images of a Toronto-version of the HOLLYWOOD

sign superimposed on the Don Valley Parkway embankment, above the CN Tower and in Lake

Ontario at the harbourfront.

9

32. The CityBrand Presentation lacks originality as it merely copies ideas used in other cities.

33. The movement of the TORONTO sign to additional locations was always part of the

City's plans for the TORONTO sign.

34. At paragraph 53 of the Statement of Claim the Plaintiff alleges that Councillor Kelly's

motion to create new signs incorporates ideas from the CityBrand presentation. The motion

tabled by Councillor Kelly is completely unrelated to the Plaintiff's CityBrand presentation. The

CityBrand presentation makes no reference to movement of the sign, nor does it speak to

multiple signs.

All communication with the Defendants post-date the creation of the TORONTO sign

Councillor Colle

35. In October, 2013 the Plaintiff contacted then Mayor Ford's Office, requesting an

introduction to Councillor Colle's office in order to discuss the Toronto music industry.

Councillor Colle's office received the Plaintiff's contact information and on or about March 4,

2014, approximately one month after the City's creation of the Proposal, Councillor Colle met

with the Plaintiff to discuss music initiatives with the City, as requested by the Plaintiff. The

purpose of the meeting was not the CityBrand presentation.

36. At that meeting the Plaintiff provided Councillor Colle with two presentations – a

proposal for a Free Summer Concert Series and the CityBrand presentation. The meeting was

focussed on the summer concert series and the CityBrand presentation was only briefly touched

upon.

10

37. Councillor Colle did not pursue the Plaintiff's CityBrand presentation and did not

circulate the CityBrand presentation to any staff in the EDC Division.

38. Councillor Colle subsequently referred the Plaintiff's CityBrand inquiry to Councillor

Thompson, Chair of the Economic Development Committee, who he believed may be the more

appropriate Councillor to address that inquiry.

Councillor Thompson and Michael Williams

39. On or about July 9, 2014, approximately five months after the City's creation of the

Proposal, Councillor Thompson and Michael Williams of the EDC Division met with the

Plaintiff. A brief meeting was held where the Plaintiff presented his CityBrand presentation.

40. Councillor Thompson did not pursue the CityBrand Presentation and did not circulate the

CityBrand presentation to any staff in the EDC Division.

41. Michael Williams did not pursue the CityBrand presentation and did not circulate the

CityBrand presentation to anyone.

Mayor Tory

42. On or about July 11, 2014, approximately five months after the City's creation of the

Proposal, then mayoral candidate Tory was emailed a copy of the CityBrand presentation. At the

time of this email, Mayor Tory had not been elected.

11

43. Mayor Tory did not request the Plaintiff's materials as alleged at paragraph 33 of the

Statement of Claim. On or about July 10, 2014, Ms. Barb Orr, sent an e-mail to Mayor Tory

advising that the Plaintiff would like to speak with him to discuss his work. On that same day

then mayoral candidate Tory wrote a quick response which stated "It's a concept I would love to

hear more about though time is short in supply with the campaign and it's demands. I will see

what I can do and thank you again for bringing this to my attention." This was not a request for

the CityBrand presentation materials and the Plaintiff never presented those materials to Mayor

Tory.

44. Mayor Tory did not pursue the CityBrand presentation and did not circulate the

CityBrand presentation to anyone.

45. The City of Toronto Act, 2006, section 391(1) states that:

No proceeding for damages or otherwise shall be commenced against a member

of city council, an officer, employee or agent of the City or a person acting under

the instructions of the officer, employee or agent for any act done in good faith in

the performance or intended performance of a duty or authority under this Act or

a by-law passed under it or for any alleged neglect or default in the performance

in good faith of the duty or authority.

46. Councillor Colle, Councillor Thompson and Mayor Tory plead that no proceeding for

damages or otherwise can be commenced against them and they are not proper parties to this

action. They rely, inter alia, on section 39(1) of the City of Toronto Act, 2006. The claim, as

against them, should be dismissed and they should be removed as parties.

47. Councillor Colle, Councillor Thompson and Mayor Tory are subject to the Code of

Conduct for Members of Council City of Toronto, and they complied with those duties in all of

their dealings with the Plaintiff.

12

48. In any event, the Code of Conduct for Members of Council City of Toronto pleaded by

the Plaintiff does not create a civil cause of action.

No claim for misappropriation of confidential information or breach of trust

49. The Defendants deny any misappropriation of the Plaintiff’s alleged confidential

information or any breach of any trust. The Defendants deny that the TORONTO sign was in

any way based on the ideas presented in the CityBrand presentation.

50. The TORONTO sign is the product of the City's independent work. As detailed above, it

is completely different in terms of use, size, purpose and aesthetics.

51. Councillor Colle, Councillor Thompson and Mayor Tory provided no input into the

design of the TORONTO sign or the Request for Proposal that was issued.

52. The Defendants deny any allegations of bad faith and put the Plaintiff to the strict proof

thereof.

Damages

53. The Defendants deny that the Plaintiff sustained the damages as alleged in the Statement

of Claim, or at all, and put the Plaintiff to the strict proof thereof.

54. In the alternative, if the Plaintiff suffered damages, which is not admitted but expressly

denied, the damages claimed by the Plaintiff are excessive, exaggerated, too remote, and not

recoverable at law. Further, the Defendants state that any damages were not properly mitigated

by the Plaintiff.

13

55. The claim does not support a claim for special damages.

56. There is no basis for any damages claim against the Defendants, let alone punitive

damages. There was no “"willful, wanton, reckless high handed, contemptuous and contumelious

disregard" by the Defendants or any basis known at law to award punitive damages.

57. The Defendants plead and rely on the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched.

A.

58. The Defendants request that this action be dismissed against them with costs on a

substantial indemnity basis.

February 19, 2016 CITY SOLICITOR'S OFFICE

City of Toronto, Legal Services

26th Floor, Metro Hall, Stn. 1260

55 John Street

Toronto, ON M5V 3C6

Darrel Smith

LSUC No. 21134E

Tel: (416) 392-8052

Fax: (416) 397-1765

Email: dsmith5@toronto.ca

Amy Murakami

LSUC No. 56881P

Tel: (416) 338-5805

Fax: (416) 397-5624

Email: amuraka@toronto.ca

Lawyers for the Defendants

14

TO: SHIFT LAW

36 Lombard Street, Suite 500

Toronto, ON M5C 2X3

John H. Simpson

LSUC No. 49432P

Tel.: (416) 361-7533

Fax: (866) 246-0120

Email: jsimpson@shiftlaw.ca

Lawyer for the Plaintiff