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High Court Rebukes Galloway Defendants
PART 1: A Fiery Appeal in Galloway v. A.B. Anti-SLAPP Motions
In February of this year, the Court of Appeal for Ontario released a decision in Park Lawn Corporation v. Kahu Capital Partners Ltd., which addressed the failure of anti-SLAPP motions to live up to their legislative intent. These acts, now law in B.C. and Ontario, were intended to provide a quick and cost-effective avenue for defendants to dismiss frivolous lawsuits that inhibit debate on matters of public importance.
“Unfortunately,” Madam Justice Pepall writes in Park Lawn, “it would appear that the practice has evolved into quite a different state than that anticipated by the Legislature… ironically a procedure intended to avoid costly, unmeritorious, protracted defamation lawsuits has developed into a platform for sometimes costly, unmeritorious and protracted litigation.”
Madam Justice Pepall calls the high financial cost of litigation “a plague that has infected our system of justice” and outlines how anti-SLAPP motions are contributing to the problem through the over-litigation of motions that were intended to quickly and efficiently dismiss frivolous lawsuits without going into a deep dive.
Madam Justice Pepall recommends that anti-SLAPP motions should cost no more than $50,000 and be heard within 60 days, as the Ontario legislation stipulates (B.C.’s legislation states “as soon as practicable”). Her recommendations contrast with Park Lawn, where one side delivered a bill of costs for the motion in the amount of $376,567.78.
Anti-SLAPP motions are now virtually a given in defamation cases, as is appealing unsuccessful motions. The Ontario Court of Appeal has heard as many as 15 appeals from anti-SLAPP motion decisions in a two-year period. This is happening even though the “standard of review” for appellate courts to overturn anti-SLAPP motions is narrowly prescribed. The standard of review establishes the degree of scrutiny that an appellate court applies in reviewing a lower court decision. The Supreme Court of Canada established that a motion judge’s determination on an anti-SLAPP motion “will be entitled to deference on appeal absent an error in law or palpable and overriding error.”
This means that a ruling on an anti-SLAPP motion, such as Madam Justice’s Adair’s ruling in Galloway v. A.B., will stand unless counsel can convince the court she made a significant error. Attempting to reargue the motion before a court of appeal is therefore futile.
This is the legal context underpinning what happened in Courtroom 60 of the BC Court of Appeal during the week of May 1st, when Justice Anne Mackenzie, Justice Elizabeth Bennett and Justice Peter Voith heard appeals from the anti-SLAPP motion that has frozen Galloway v. A.B. in its tracks for over four years.
The Desperate Extension of the Truth
Joanna Birenbaum, one of A.B.’s lawyers, began her submissions to the BC Court of Appeal, seeking to overturn Justice Adair’s ruling on A.B.’s anti-SLAPP motion, by telling the court that sexual assault is like no other crime because the tenacity of deep-rooted biases in society serves to silence victims. Victims, Ms. Birenbaum told the court, fear retaliation by the perpetrator and lawsuits are “increasingly on the list of retaliation.”
A.B.’s art show that she mounted in 2018, Ms. Birenbaum asserted, was aimed at overcoming centuries of silence and silencing. “Artistic expression about sexual assault and harassment,” Ms. Birenbaum told the court, “is the highest artistic expression.”
A.B.’s factum describes her exhibit as follows:
The Art Exhibit at issue in this action was “derived from” A.B.’s statement in the Boyd investigation, which A.B. calls her “Rape Narrative” (a term initially used by UBC). The Art Exhibit features large scaled-up black panels, like tombstones, containing suspended words and fractured glimpses of a depicted experience. Some panels contain no words other than “no”. The Art Exhibit is a “radical redaction” of the statement, evoking the silencing, powerlessness and erasure experienced by survivors of sexual violence.
Ms. Birenbaum described the “force of the photography” in A.B.’s exhibit, which is interesting because up to that point I had no idea that the show claimed to be photography. I cannot link to the panels due to the media ban on A.B.’s name but they are simply enlargements of her statement to Boyd that appear to have been redacted with some desktop publishing or photo editing software. Nothing about the exhibit resembles photography, while it could be argued that the redaction process is artistic in nature no artistic skill was required to create them, and a novice user of Photoshop could replicate one of the panels in a matter of minutes.
Among the readable words of the exhibit and its accompanying written materials are the following statements which Madam Justice Adair found to be defamatory:
“It’s not just what he did, but that he was able to do it for so long. The Rape … spans six years, and the losses keep piling up. It makes you sick and sad and filled with rage that it went on for so long. But that’s not on you. That’s on him”
“It’s terrifying to try to exist in the world again, because not only is the man who raped you determined to punish you, so are many powerful people who support that man”
“Exhibition by A.B. … derives from what A.B. refers to as her Rape … a narrative… after she disclosed being sexually assaulted, assaulted and abused by a professor”
Ms. Birenbaum told the court that A.B. was encouraged by two of her therapists to make the art and that she went into debt to do so, although other than A.B.’s testimony no evidence was put to the court to support this assertion. The therapeutic artistic journey, Ms. Birenbaum told the court, was akin to that of a war vet, cancer patient, and a myriad of other trauma survivors who have used art to overcome shame, depression, isolation, and stigma.
At this early stage, just a few minutes in, the court began to lose patience.
“Where does this go with the legal analysis?” Justice Voith interjected.
Ms. Birenbaum told the court that Justice Adair didn’t properly engage in any analysis of the dominant issues regarding sexual assault. She then walked the court through the exhibit.
“They’re layered,” Ms. Birenbaum said as she held up print outs of the exhibit. “Too few images, that is why this exhibit is so important. Too few images… Dream or hallucination…Creating stories… Many many panels. Only a few of which that have been focused on… Nothing more than black, erasure and silencing.
“The next page is self-explanatory,” Ms. Birenbaum said. “No no no no. I didn’t want to be in his office.”
Ms. Birenbaum told the court that this was something anyone who had experienced sexual assault could relate to.
“The panel is about the stark disparity,” Ms. Birenbaum said. “The famous author. It’s depicting the experience of not mattering.”
“This is a court of review,” Justice Voith interjected again. “Either you or your colleague are going to have to identify error. The judge made findings. She heard what you said…What is the legal error?”
Ms. Birenbaum told the court that she was splitting her submissions with her co-counsel David Wotherspoon and would let him address the issue of legal error, but this did not satisfy the court.
Ms. Birenbaum, who is from Toronto, then improperly addressed the court and Justice Mackenzie corrected her on the protocol of the BC Court of Appeal. Ms. Birenbaum apologized.
“You have to anticipate that we have questions and want them answered,” Justice Voith said. “What do you say that legal error is? What is the legal error so I have it?”
“I’ve perhaps tested your patience,” Ms. Birenbaum acknowledged. And she had; instead of identifying any error in fact or law on the part of Justice Adair, what Birenbaum presented was an attempt to re-argue the case on ideological grounds.
Ms. Birenbaum then shifted to Justice Adair’s finding of malice and began the heavy lifting of explaining why A.B. fabricated a claim that CBC lawyers had vetted her rape allegations. In their factum presented to the court, Mr. Wotherspoon and Ms. Birenbaum called A.B.'s lies about the CBC a "desperate extension of the truth."
“I’ll make the submission that the social context was that A.B. was fearful that UBC would not listen,” Ms. Birenbaum said.
“That’s not fair either,” Justice Voith responded. “This was her objective in going to professor Maillard to assemble a case. She’s not an innocent on the side who did something passive. She was the engine of this.”
“I disagree that she was the engine,” Ms. Birenbaum shot back.
“At least portions of what she said the judge found were fabrications and tissues of lies,” he said. “You have understated the degree of what was done. She [Justice Adair] looked at the record and was deeply concerned. The purpose of that lie…”
“There was no lie,” Ms. Birenbaum said.
“I say respectfully,” Justice Voith said, “Your submissions have ignored one side of the equation. Something went extremely wrong. This case is not what the PPPA is about.”
The hearing hadn’t even made it to the morning break and the court had already delivered a devastating blow to the defendants, while making it clear to all counsel that they intended to show deference to Justice Adair’s decision unless a palpable error could be identified. What happened next was like watching a theatre troupe who had spent the last year rehearsing Much Ado About Nothing only to be told five minutes before curtain that they would now be performing Macbeth.
Careless, Not Reckless
Karen Zimmer was one of the strongest lawyers who went before Justice Adair. Her client Annabel Lyon was one of two defendants, along with Alicia Elliott, who had been completely released from the suit pending this appeal. Ms. Zimmer is clearly a competent lawyer but when she stepped up to make her submissions for her client Keith Maillard she simply fell apart.
Ms. Zimmer struggled through all her submissions by introducing points that never materialized. She referenced material while seemingly telling the court what was going to come as a way to avoid articulating an actual point.
“Tell us what you want to say,” Justice Bennett interjected. “You don’t have to keep taking us to it.”
With each comment from the bench Ms. Zimmer became more flustered. She took the court to an article by Zoe Whittall that she claimed gave important context that Justice Adair failed to consider when assessing the defamatory meaning of Professor Maillard’s statements.
“We say that she erred,” Ms. Zimmer submitted. “She gives no meaning to the quotations I took you too. She’s not giving any meaning to ‘allegations.’ The context is being lost.”
“Just so I understand that,” Justice Voith said. “She referred to other context. She’s clearly aware that context matters. It is your submission that a reasonable reader wouldn’t glean that?”
Ms. Zimmer struggled to answer and seemed to be searching for papers for an answer.
“I think we agree,” Mr. Justice Voith said. “She says yes and you say no. She went through it. She came to a conclusion. Is there more to what you are saying?”
“She’s missing the facts,” Ms. Zimmer blurted. “The word ‘Fact Check.’ Sorry I thought I was more organized than I was.”
“You know, I’ll figure it out,” Justice Voith said. “I’ll look at your factum. I’m content. You should move on.”
Ms. Zimmer then mentioned the standard of deference and Justice Voith said that he had not seen counsel state the standard of review. He asked Ms. Zimmer to identify it and she told him she would find that for him later.
“You don’t have to find it,” he said. “You can just tell me. Do you know the standard of review?”
Her submissions were going so badly that Justice Mackenzie attempted to get her back on track. “You wanted to take us to the malice,” she said. “Your factum was very good and thorough. So highlight the points.”
Ms. Zimmer turned to a decision from the Supreme Court of Canada but became so flustered she referred to The Honourable Suzanne Côté as "he," requiring a correction from the court that Côté is a woman. This did not come across as a case of misgendering but rather gave the impression that Ms. Zimmer had no idea of the identity of the Supreme Court justice she was attempted to quote.
“It’s hard to, uhm, there’s a strong presumption. I’m going to pause,” Ms. Zimmer said.
Ms. Zimmer then submitted to the court that Justice Adair erred in determining that Professor Maillard’s conduct was “reckless” when she should have found that his conduct was “careless” because Professor Maillard’s conduct was rooted in an honest belief of A.B.’s allegations. Justice Adair had found that there were grounds to believe that Professor Maillard and Professor Lyon were reckless so as to meet the legal test for malice.
Again, however, the court bristled. Ms. Zimmer was not arguing that Justice Adair had made an error in fact or law, but instead were arguing with her findings.
“What you appear to be arguing about is that you disagree with the judge’s findings but the judge found that they [Maillard and Lyon] were unreasonable,” the court said.
“The whole criticism of Prof Maillard not going to Mr. Galloway is problematic,” Ms. Zimmer said. “She [A.B.] was terrified. Let’s say Mr. Maillard went to Mr. Galloway. Which is what he’s been criticized for not doing.”
“He’s criticized for many things,” Justice Voith shot back.
Ms. Zimmer attempted to make the point again.
“The point is. The point is. The point is.” Justice Voith said. “She understands the distinction [between carelessness and recklessness]. It’s not that she got the question wrong. You have to establish that. That is respectfully a much more difficult proposition for you.”
Into The Weeds
Chelsea Rooney’s lawyer Sarah Whitmore is a skilled litigator who had the difficult task of following Ms. Zimmer. The hearing was still on its first day and the submissions to the court had all been flayed. Ms. Whitmore was able to change the tone. She presented her arguments with conviction and professionalism, but her submissions still lacked substance.
Ms. Whitmore told the court that Justice Adair erred in in assessing the defamatory meaning of Ms. Rooney's statements by not properly contextualizing them as statements made during the height of the “Believe Women” movement.
She argued that Rooney’s statement that she believed the allegations of sexual assault and violence made against Galloway did not mean she was saying that Galloway had committed sexual assault, but rather simply that she supported A.B.
The movement, Ms. Whitmore argued, changed the meaning of the word “believe” into a word that meant support, so that it could not therefore convey a meaning of guilt as Justice Adair had found. Justice Adair erred in finding Ms. Rooney’s statements defamatory, she argued, because she did not explicitly mention in her ruling that Rooney’s statements were made in the context of the “Believe Women” movement.
“In a case with 7,000 pages,” Justice Bennett responded, “If she went into everything she’d still be writing.”
Ms. Whitmore agreed with the court that the case was large but laid the blame with Galloway for commencing an action against “25 random defendants” – overlooking, conveniently, that the only half of those were involved in the current proceeding.
“The time that is passed is unfortunate,” she said. “It was a result of how the lawsuit was structured.”
Ms. Whitmore took issue with the defendants presenting their SLAPP applications concurrently. Had they not been done in this manner, however, they would have been able to each present them consecutively, enabling them to delay a trial even longer.
Ms. Whitmore also seemed to suggest that the structure of Mr. Galloway's lawsuit took a toll on her personally, since she worked pro bono for Ms. Rooney and invested significant time in fighting the case. She then firmly restated her submission that to “believe” an allegation of sexual assault against a person was not about guilt and innocence and that a reasonable reader would have known this.
Ms. Whitmore then submitted to the court that Justice Adair erred by not considering that one of Ms. Rooney’s defamatory tweets only had two “likes.”
“How is that not a deep dive?” Justice Voith asked. “For my own personal reasons, I feel strongly that this is not a SLAPP.”
“Not when he had power,” Ms. Whitmore countered. Justice Voith was now visibly frustrated.
“He was done,” Justice Voith said, pointing out that the statements in question were made long after Galloway was fired. “He was on his knees. He had no power. He didn’t have the power that you describe. This exercise in this context is completely unreasonable.”
Justice Voith told counsel that everyone accepts that victims of sexual assault have a right to speak and need to be supported in coming forward. This is clearly stated in Justice Adair’s reasons for judgment. But defense counsel couldn’t assist the court in grappling with the tension at the heart of defamation law which is the need to protect freedom of expression and the right of citizens to defend their reputation.
“You are wed to your positions collectively with an inability to do that”, Justice Voith told defendants’ counsel while again making his position known. “This may sound firm…I don’t see this as reeking of a SLAPP suit from the get-go.”
“This is supposed to be quick,” he added. “Five years into this and we are into the weeds. I disagree as strongly as I can. This does not advance access to justice. It is arguably an inability to rectify harms.”
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