VANCOUVER鈥擜 defamation lawsuit by a novelist and former university professor against a woman who accused him of rape could have a chilling effect on future victims of sexualized violence, and the #MeToo movement more broadly, a B.C. court heard this week.
Lawyers for Steven Galloway, however, say he should be allowed to proceed with his lawsuit as the allegations against him 鈥 which drew national headlines and attention from authors, including Margaret Atwood 鈥 forever stained his reputation.
The 鈥渓andmark鈥 hearing is considered a major test of a relatively new provincial law designed to protect free expression and prevent the use of lawsuits to silence people from speaking out on matters of public interest.
Galloway, the author of the award-winning novel 鈥淭he Cellist of Sarajevo鈥 and former head of the University of British Columbia鈥檚 creative writing program, was accused in 2015 by a former student of sexual harassment and sexual assault. Though never criminally charged, he was later suspended, then terminated by the university. A labour arbitrator later awarded him more than $200,000 in damages after finding his privacy rights had been violated when the university publicized his suspension and termination.
In the aftermath, Galloway filed a defamation suit against his accuser, known in court documents as 鈥淎B,鈥 along with two dozen others, including two professors, alleging they had 鈥渞ecklessly repeated鈥 AB鈥檚 accusations to others in the university community and on the internet, damaging his personal and professional reputation.
Eleven of the defendants subsequently filed anti-Strategic Litigation Against Public Participation or anti-SLAPP applications, seeking to have the lawsuit dismissed on the grounds of free expression on matters of public interest. They cited legislation passed in B.C. in 2019 known as the Protection of Public Participation Act. (A similar act was passed in Ontario in 2015).
A nine-day hearing on those applications started this week before B.C. Supreme Court Justice Elaine Adair. Joanna Birenbaum, one of AB鈥檚 lawyers, called it a 鈥渓andmark鈥 case.
鈥淔or the past 30 years, decisions of the Supreme Court of Canada, acts of Parliament and laws and policies of various provinces have encouraged survivors of sexual violence to report. Very recently, universities and colleges, specifically, have been required by law to have stand-alone sexual violence policies to encourage reporting,鈥 she told the Star.
鈥淎t stake in this lawsuit is whether survivors will have legal protection from retaliatory lawsuits when they access these very legal remedies that they are encouraged to access. If the plaintiff鈥檚 lawsuit is dismissed, the ruling will be an important step toward making it safer for women to report.鈥
Last year, the Supreme Court of Canada laid out guidelines for how lower courts should decide whether to dismiss defamation suits. The burden initially falls on the defendant to satisfy a judge that the proceeding arises from an expression relating to a matter of public interest.
The burden then shifts to the plaintiff, who must show there are grounds to believe the lawsuit has substantial merit and the defendant has no valid defence. The plaintiff must also demonstrate that the harm suffered, and the public interest in allowing the proceeding to continue, outweigh the public interest in safeguarding the expression.
Galloway claims in his lawsuit that he鈥檇 had a consensual, romantic affair with AB lasting over two years.
In November 2015, according to the claim, AB made statements to several individuals, including professors, that she had been raped and physically assaulted by Galloway. Those claims were then repeated by the other defendants to others at UBC and on social media.
After an independent investigator, former B.C. Supreme Court justice Mary Ellen Boyd, concluded the allegations were unsubstantiated, the defendants continued to repeat the claims, Galloway鈥檚 lawsuit says. AB, for instance, included such statements as part of an art exhibit in 2018, according to the claim.
As a result of the 鈥渆xtreme and vicious content鈥 said about him, Galloway suffered 鈥済rave鈥 damage to his reputation, the lawsuit contends.
In her response to the lawsuit, AB said she had been the subject of unwelcome sexualized comments and advances by Galloway who 鈥渦sed his position of power at UBC and in the writing community鈥 to cause her to fear and depend on him and remain silent. She alleged Galloway sexually 鈥済roomed鈥 her and subjected to her to traumatic situations.
Former UBC professor Steven Galloway, seen in this file photo, claims in a defamation suit that his repuation was ruined after he was accused of sexual assault.
Frances RaudAB subsequently told a couple of professors and a friend of the alleged assaults in November 2015 and wrote a letter to the UBC president, claiming she had been sexually assaulted by an unnamed professor, according to her court filings. She asserts that she had a 鈥渕oral and social duty鈥 to report the allegations.
Lawyers for AB also told the court the independent investigator never used the words 鈥渘ot substantiated鈥 or 鈥渦nsubstantiated鈥 in reference to the sexual assault allegations. 鈥淢s. Boyd鈥檚 words were that 鈥榦n a balance of probabilities鈥 she was 鈥榰nable to find鈥 that the sexual assaults 鈥榦ccurred,鈥欌 their written submissions state, adding that Boyd did find AB鈥檚 allegations of sexual harassment to be credible.
AB, the filings state, was encouraged to use art as a therapy and created an immersive art piece in 2018 that depicted 鈥渢he universal experience of sexual harassment and sexual assault of women by men in positions of power鈥 but never identified Galloway or UBC by name.
Keith Maillard and Annabel Lyon, the two professors AB turned to, said in separate court filings that they believed AB鈥檚 allegations were sincere and required investigation by the university.
The professors noted that the accusations led to 鈥渟ignificant public controversy鈥 over the university鈥檚 handling of the matter. Following Galloway鈥檚 dismissal from UBC, a letter signed by dozens of prominent authors, including Margaret Atwood, was released criticizing the university for announcing allegations against Galloway when they hadn鈥檛 been substantiated.
The professors asserted that their statements about Galloway were made without malice and were, among other things, honest comment on a matter of public interest.
AB, the two professors and several other defendants subsequently filed applications to dismiss Galloway鈥檚 lawsuit.
AB鈥檚 lawyers wrote that allowing the lawsuit to proceed would create a 鈥渃hill鈥 on reporting of sexual assault and sexual harassment and participation in #MeToo dialogue. They cited a report that said sexual assault was already one of the most under-reported crimes in Canada.
鈥淭his application creates an opportunity to advance rights of expression by victims of sexualized violence who report the wrongs that have been done to them,鈥 lawyers for AB wrote in their opening submissions. 鈥淒ismissal of Mr. Galloway鈥檚 defamation claim will expressly acknowledge the value in protecting the rights of victims to report sexualized violence. It will encourage, rather than discourage reporting. It will be a step in a better direction.鈥
One of the other defendants, a friend of AB, acknowledged in a court filing she had participated in the public debate stemming from the allegations against Galloway. In one tweet in the fall of 2016, she wrote: 鈥淲e can be asked to believe a person who reports sexual assault. And we can believe her. And we do.鈥
The friend later deactivated her Twitter account because of online harassment, including from supporters of Galloway, according to her filing. When Galloway named her as a defendant in the defamation suit, that 鈥渆ffectively silenced鈥 her and she 鈥渘o longer shares opinions online.鈥
Galloway鈥檚 lawyers maintain that the damage to his reputation has continued 鈥渨ithout vindication鈥 and that he should be allowed to proceed to trial.
鈥淭his is not the case of an environmentalist being silenced by a big corporation鈥檚 defamation action,鈥 they say in court filings. 鈥淚t is not the case of a vindictive action brought on a technically actionable but trivial defamation. 鈥 It is one of the most serious defamation actions, involving some of the most serious damage to a person in memory in this province.鈥
With files from The Canadian Press
UPDATE 鈥 April 8, 2021 鈥 This story has been updated to reflect that AB鈥檚 lawyers dispute the plaintiff鈥檚 characterization of the independent investigator鈥檚 conclusions.
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