Rooney v. Galloway, 2024 BCCA 8

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Rooney v.

Galloway, 2024 BCCA 8 Date: 20240110 Dockets: CA47985; CA47986; CA47988; CA47989; CA47991; CA47992; CA47998; CA48003; CA48007 Docket: CA47985 Between: Chelsea Rooney Appellant/ Respondent on Cross Appeal (Defendant) And Steven Galloway Respondent/ Appellant on Cross Appeal (Plaintiff) And A.B., Keith Maillard, Mandi Gray, Theresa Smalec, Kiera Anderson, Marcelle Kosman, and Ari Rombough Respondents (Defendants) - and - Docket: CA47986 Between: Marcelle Kosman Appellant (Defendant) And Steven Galloway Respondent (Plaintiff) And A.B., Chelsea Rooney, Mandi Gray, Theresa Smalec, Kiera Anderson, Keith Maillard, and Ari Rombough Respondents (Defendants)

- and - Docket: CA47988 Between: Ari Rombough Appellant (Defendant) And Steven Galloway Respondent (Plaintiff) And A.B., Chelsea Rooney, Mandi Gray, Theresa Smalec, Kiera Anderson, Keith Maillard, and Marcelle Kosman Respondents (Defendants) - and - Docket: CA47989 Between: Keith Maillard Appellant/ Respondent on Cross Appeal (Defendant) And Steven Galloway Respondent/ Appellant on Cross Appeal (Plaintiff) And A.B., Chelsea Rooney, Mandi Gray, Theresa Smalec, Kiera Anderson, Ari Rombough, and Marcelle Kosman Respondents (Defendants) - and - Docket: CA47991 Between: A.B. Appellant/ Respondent on Cross Appeal

(Defendant) And Steven Galloway Respondent/ Appellant on Cross Appeal (Plaintiff) And Keith Maillard, Chelsea Rooney, Mandi Gray, Theresa Smalec, Kiera Anderson, Ari Rombough, and Marcelle Kosman Respondents (Defendants) - and - Docket: CA47992 Between: Mandi Gray Appellant/ Respondent on Cross Appeal (Defendant) And Steven Galloway Respondent/ Appellant on Cross Appeal (Plaintiff) And A.B., Keith Maillard, Chelsea Rooney, Theresa Smalec, Marcelle Kosman, Kiera Anderson, and Ari Rombough Respondents (Defendants) - and - Docket: CA47998 Between: Kiera Anderson Appellant (Defendant) And Steven Galloway Respondent (Plaintiff) And

A.B., Keith Maillard, Chelsea Rooney, Mandi Gray, Theresa Smalec, Ari Rombough, and Marcelle Kosman Respondents (Defendants) - and - Docket: CA48003 Between: Theresa Smalec Appellant (Defendant) And Steven Galloway Respondent (Plaintiff) And A.B., Chelsea Rooney, Mandi Gray, Keith Maillard, Kiera Anderson, Ari Rombough, and Marcelle Kosman Respondents (Defendants) - and - Docket: CA48007 Between: Steven Galloway Appellant (Plaintiff) And Annabel Lyon and Alicia Elliott Respondents (Defendants) SEALED (IN PART) Sealing order: Pursuant to the sealing order of this Court, dated May 18, 2022, to the extent that any materials filed by the parties contain information that could identify A.B., the unredacted materials are sealed and are not to be released to any person other than a party and their counsel.

The redacted materials are not sealed. This sealing order applies, unless otherwise ordered. Restriction on publication: A publication ban has been imposed pursuant to the order of this Court, dated May 18, 2022, prohibiting the publication, broadcast, or transmission of any information that could identify A.B. as a party to these appeal proceedings, including any descriptions or links to print

or Internet publications containing any information that may identify A.B. as a party to these appeals. Any reference to A.B. being a former student of the Creative Writing Program shall not be considered impermissible identifying information for the purposes of that order. This publication ban applies, unless otherwise ordered. Before: The Honourable Madam Justice Bennett The Honourable Justice MacKenzie The Honourable Mr. Justice Voith On appeal from: An order of the Supreme Court of British Columbia, dated December 2, 2021 ( Galloway v. A.B. , 2021 BCSC 2344 , Vancouver Docket S1811588). Counsel for A.B.: D.K.

Wotherspoon J.L. Birenbaum Counsel for Steven Galloway: D.W. Burnett, K.C. D.H. Coles Counsel for Marcelle Kosman: E.M. MacKinnon H. Mallabone D. Fitzgerald, Articled Student Counsel for Keith Maillard and Annabel Lyon: K.R. Zimmer K.A. McGoldrick Counsel for Chelsea Rooney: S. Whitmore A. Puchta J..E.L. Lowenstein Counsel for Kiera Anderson: K.K. Sherriff C. McLeod Counsel for Mandi Gray: A. Laskin Counsel for Ari Rombough: S. Ivany Counsel for Theresa Smalec: D. Reid Counsel for Alicia Elliott: M.L. Camley J.A.

Der Place and Date of Hearing: Vancouver, British Columbia May 1–5, 2023 Written Submissions filed: June 7, 21, 27, July 5, 2023 Place and Date of Judgment: Vancouver, British Columbia January 10, 2024 Written Reasons of the Court

Summary: These appeals and cross appeals arise from a number of pre-trial applications under British Columbia’s Protection of Public Participation Act (“PPPA”). The underlying defamation action was brought by Steven Galloway, a writer, novelist, and former tenured professor, against multiple defendants. He alleges those individuals defamed him by repeating the allegations that he had sexually assaulted, raped, and physically assaulted A.B. who was a former graduate student. These allegedly defamatory statements occurred in different forums, including on the Internet and on Twitter.

Twelve of the defendants sought to have his action dismissed under s. 4 of the PPPA on various bases, including that their expression(

s) were protected because they were addressing a matter of public interest. The chambers judge allowed Mr. Galloway’s action to proceed with respect to most of the alleged defamatory statements, but dismissed the action with respect to other statements. She dismissed the claim in its entirety against two defendants (Professor Lyon and Ms. Elliott). On appeal, the parties (which include a number of the applicants below and Mr. Galloway) assert that the chambers judge erred in applying the test under s. 4 of the PPPA. Mr.

Galloway also raises other issues, including whether the Limitation Act barred some of his claims and whether the judge erred in “pruning” certain statements from those that were allowed to proceed against the same applicant. Held: Defendants’ appeals dismissed. Mr. Galloway’s appeal and cross appeals allowed, in part .

Dealing with the limitations issues, as a preliminary matter, there is a fundamental concern with the suitability of raising limitations defences in the context of these PPPA applications. The chambers judge erred in deciding the many limitations issues that were raised and instead should have deferred these issues for trial on a full record. Given the preliminary stage at which PPPA applications are brought, they are inappropriate for fact intensive inquiries that require a judge to make significant findings of credibility or to draw inferences from competing primary facts.

Judges must avoid taking a ‘deep dive’ into the ultimate merits of the claim under the guise of the more limited merits assessment in s. 4 of the PPPA. The judge dismissed aspects of Mr. Galloway’s claims against A.B., Professor Maillard, Professor Lyon, and Ms. Rooney, on the basis that some of their statements, or the republications of those statements, were statute barred. The judge erred in various ways with respect to several of these statements. Mr. Galloway’s cross appeals with respect to various of these statements is allowed.

The judge did not err in concluding that s. 4 of the PPPA allowed her to dismiss limited aspects of Mr. Galloway’s claim against certain appellants while allowing other aspects of those claims to proceed to trial.

Section 4 does not create a prohibition against allowing a judge to “prune” a claim in this way. The different appellants raise numerous issues and challenge the judge’s application of various elements of the s. 4 framework. Many of these grounds of appeal invite this Court to engage in a re-weighing exercise, which is not the role of an appellate court. Even post-Hansman v. Neufeld, 2023 SCC 14 , the applicable framework from 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 and Bent v. Platnick, 2022 SCC 23 continues to apply.

In light of the legal framework and evidence, the judge’s reasoning was sound and reflected a thorough consideration of the issues before her. Further, at the threshold stage of a PPPA application, the judge is not to take a deep dive into the evidence. Here, the judge identified the appropriate and relevant legal framework and it was within her discretion to assess whether the criteria under s. 4 of the PPPA were met. Overall, this Court agrees with her conclusions and finds no reviewable errors. Deference is owed to the judge’s findings of fact and her exercises of discretion, absent reviewable error.

Most of the appellants also allege that the judge failed to consider certain aspects of the evidence or that she did not properly address the context for some publications. The judge had extensive material before her and she properly addressed every defence in play. PPPA applications, such as those on appeal, should not serve to delay an eventual trial. It is in the interests of the parties to have the matter fully heard and adjudicated at trial once the claims pass the PPPA threshold.

The judge made clear that the outcome of the PPPA applications was not a final adjudication on the merits of the claims or defences. Her conclusions that allowed Mr. Galloway’s claims to go to trial were reasonable. The ultimate outcome will be determined at trial. The appeals brought by Professor Maillard, A.B., Ms. Rooney, Dr. Gray, Dr. Smalec, Dr. Anderson, Mx. Rombough, and Dr. Kosman are dismissed. An aspect of Mr. Galloway’s appeal against Professor Lyon is allowed as well as aspects of his cross appeals against each of Professor Maillard, A.B., and Ms. Rooney. Mr. Galloway’s appeal against Ms.

Elliott is dismissed. Table of Contents Paragraph Range Introduction [ 1 ] - [14] Framework of s. 4 of the PPPA [15] - [20] Issues on Appeal [21] - [24] Standard of Review [25] - [33] Background Chronology [34] - [67] General Conclusions [68] - [72] Legal Framework and Principles [73] - [148]

Section 4 of the PPPA [74] - [91] Defamation [92] - [103] Defences [104] - [104] Fair Comment [105] - [110] Qualified Privilege [111] - [113] Malice [114] - [117] Pruning or Trimming [118] - [143]

Legislation [118] - [124] Judicial consideration of “pruning” [125] - [134] Pruning in the PPPA framework [135] - [143] Weber Defence [144] - [148] Overview of Analysis [149] - [151] The Limitation Issues [152] - [324] General context for A.B. No.1, Maillard No. 1, Lyon Nos. 1 and 2, Rooney No. 1 [155] - [156] Preliminary issue: The suitability of limitation defences in PPPA applications [157] - [170] Did the judge misapply the test in Novak v. Bond as to discoverability? [171] - [185] Did the judge err in treating A.B. No. 1, Maillard No. 1, Lyon Nos. 1 and 2, and Rooney No. 1 as a single cause of action? [186] - [226]

a) Defamation actions and their relationship to limitation periods [190] - [192]

b) Section 8 of the Limitation Act and discoverability [193] - [199]

c) Pleadings [200] - [212]

d) Section 6 of the PPPA [213] - [221]

e) Summary [222] - [226] Did the judge err in treating A.B. No. 1 as a single cause of action? [227] - [257] Analysis [240] - [257] Did the judge err in treating Maillard No. 1 as a single cause of action? [258] - [276] Did the judge err in finding Lyon Nos. 1 and 2 were not statute barred? [277] - [302]

a) Lyon No. 1 [279] - [285]

b) Lyon No. 2 [286] - [302] Did the judge err in treating Rooney No. 1 as a single cause of action? [303] - [324] Analysis of Individual Appeals [325] - [330] Professor Keith Maillard [331] - [370] Did the judge make “conclusive” or “unequivocal” findings? [336] - [337] Are Maillard Nos. 2 and 3 capable of a defamatory meaning? [338] - [342] Did the judge err in finding no valid defence? [343] - [354]

a) Fact or comment [345] - [347]

b) Malice [348] - [354] Did the judge err in the weighing of harm? [355] - [359] Maillard No. 1 [360] - [363] Maillard No. 4 [364] - [370] Professor Annabel Lyon [371] - [390] Did the judge err in finding Mr. Galloway met his initial onus under s. 4(2)(a)(i)? [373] - [379] Did the judge err in finding the onus under s. 4(2)(a)(ii) was met? [380] - [386] The weighing analysis [387] - [390] Alicia Elliott [391] - [414] A.B. [415] - [461] A.B. No. 2 – The Art Exhibit [415] - [419] Did the judge err in finding the Art Exhibit was “of and concerning” Mr.

Galloway? [420] - [430] Did the judge err in concluding that the Art Exhibit was fact and not comment? [431] - [438] Did the judge err in weighing the harm of A.B.’s expression to Mr. Galloway? [439] - [444] Did the judge err in her application of principles relating to malice? [445] - [452] A.B. No. 1 [453] - [453] Are there valid defences to A.B.

No. 1 on the basis of qualified privilege, the Weber defence or the public interest weighing exercise? [454] - [461] Chelsea Rooney [462] - [500] Did the judge err in applying the test for defamatory meaning? [464] - [478] Did the judge err in applying the law on fair comment? [479] - [484] Did the judge err in her findings regarding malice? [485] - [490] Was the judge’s weighing process flawed? [491] - [495] Rooney No. 1 [496] - [496] Are there valid defences to Rooney No. 1 based on qualified privilege, the Weber defence, and public interest weighing? [497] - [500] Mandi Gray [501] - [552] Were Gray Nos. 4 and 5 capable of having a defamatory meaning? [508] - [513] Did the judge err in “pruning” Gray Nos. 4 and 5 from other statements? [514] - [520] Did the judge err in concluding that Gray Nos. 6 and 7 had a defamatory meaning? [521] - [528] Did the judge err in her application of the defence of fair comment? [529] - [540] Did the judge err in the public interest weighing analysis? [541] - [552] Theresa Smalec [553] - [589] Did the judge err in finding the defence of fair comment was not available to Dr.

Smalec? [564] - [578] Did the judge err in finding the harm likely to have been suffered by Mr. Galloway outweighed the public interest in protecting Smalec No. 1? [579] - [584] Did the judge fail to consider the context in assessing the value of Dr. Smalec’s expression? [585] - [589] Kiera Anderson [590] - [631] Did the judge err in disposing of the defence of fair comment? [596] - [606] Did the judge err by failing to weigh the claims advanced against each appellant separately? [607] - [631]

Ari Rombough [632] - [666] Did the judge fail to analyze whether a causal link existed between Rombough No. 1 and the harm alleged? [637] - [641] Did the judge fail to ascertain the magnitude of any reputational harm flowing specifically from Rombough No. 1? [642] - [649] Did the judge err by disregarding evidence of the mode and extent of publication of Rombough No. 1? [650] - [655] Did the judge err in concluding the public interest in protecting Rombough No. 1 was at the lower- end of the protection-deserving spectrum? [656] - [666] Marcelle Kosman [667] - [699] Did the judge fail to consider context? [674] - [696] Did the judge err in finding a causal link between the Kosman Expressions and harm to Mr.

Galloway? [697] - [699] Disposition [700] - [704] Costs [705] - [706] Appendix “A” – Defamatory statements alleged to have been made by A.B.

Appendix “B” – Defamatory statements alleged to have been made by Professor Maillard Appendix “C” – Defamatory statements alleged to have been made by Professor Lyon Appendix “D” – Defamatory statements alleged to have been made by Chelsea Rooney Appendix “E” – Defamatory statements alleged to have been made by Mandi Gray Appendix “F” – Defamatory statements alleged to have been made by Alicia Elliott Appendix “G” – Defamatory statements alleged to have been made by Theresa Smalec Appendix “H” – Defamatory statements alleged to have been made by Kiera Anderson Appendix “I” – Defamatory statement alleged to have been made by Ari Rombough Appendix “J” – Defamatory statements alleged to have been made by Marcelle Kosman Appendix “K”—Kosman and Galloway Agreed Statement of Facts on twitter Reasons for Judgment of the Court: Introduction [1] Freedom of expression is central to a pluralistic and healthy democracy ( 1704604 Ontario Ltd. v .

Pointes Protection Association , 2020 SCC 22 , at para. 1 [ Pointes ]). However, this freedom is not absolute; “[o]ne limitation on free expression is the law of defamation, which protects a person’s reputation from unjustified assault” ( Grant v. Torstar Corp., 2009 SCC 61 , at para. 2 ). Indeed, “the right to free expression does not confer a licence to ruin reputations” ( Grant , at para. 58 ; see also Bent v. Platnick , 2020 SCC 23 , at para. 1 ). [ 2 ] The two competing values at the core of defamation law are freedom of expression and the protection of reputation ( Hansman v.

Neufeld , 2023 SCC 14 , at para. 1 ). Defamation lawsuits can serve to vindicate an individual’s personal or professional reputation, but they can also “have the undesirable effect of suppressing the open debate that is the cornerstone of a free and democratic society” (para. 2). [ 3 ] These appeals involve the application of the Protection of Public Participation Act , S.B.C. 2019, c. 3 [ PPPA ], which is a statute aimed in part at dissuading strategic lawsuits against public participation, also known as “SLAPPs”.

The PPPA , like other similar provincial statutes, is considered to be “anti-SLAPP” legislation. [ 4 ] This judgment addresses a number of appeals and cross appeals, heard together, and arising from various pre-trial applications made pursuant to the PPPA . [ 5 ] The underlying defamation action was brought by writer and novelist Steven Galloway who, at one time, was also a tenured professor and Chair of the Creative Writing Program at the University of British Columbia (“UBC”).

After “serious allegations” were made against him by his former student A.B., he was removed from his position as Chair in November 2015. [ 6 ] A.B. is a writer and was a graduate student in the UBC Creative Writing Program. Between 2011 and 2013, A.B. and Mr. Galloway had a sexual relationship, but the nature of that relationship is contested; Mr. Galloway says it was consensual and A.B. asserts that it was not. [ 7 ] In his defamation action, Mr. Galloway pleaded that A.B. had defamed him by falsely asserting that he had sexually assaulted, raped, and physically assaulted her.

He alleged that a number of individuals also defamed him by repeating those claims of sexual assault in different forums, including on the internet and on Twitter (the platform now known as “X”). [ 8 ] He claimed that the statements made by the defendants (which include the appellants) about his having raped and physically and sexually assaulted A.B. were false.

He said these statements were defamatory because a reasonable person would understand those statements to mean that he was guilty of criminal misconduct. [ 9 ] Prior to a determination of the merits of the defamation claims, 12 of the named defendants applied to have Mr. Galloway’s claims dismissed based on the application of the PPPA . The applications were heard together over the course of 12 days and with further written submissions received thereafter.

Despite the preliminary nature of PPPA applications precluding a “deep dive” into the evidence, there was still a massive evidentiary record before the chambers judge, running to almost 7,000 pages. Over 60 affidavits were filed,

containing material that normally would be inadmissible. Mr. Galloway was cross-examined on eight occasions. There were hundreds of pages of written submissions and over 7,600 pages of authorities provided. The resulting judgment was 242 pages, totaling nearly 800 paragraphs. [ 10 ] In reasons indexed as 2021 BCSC 2344 (“RFJ”), the judge allowed Mr. Galloway’s action to proceed with respect to some of the alleged defamatory statements, but she dismissed the action with respect to other such statements and fully dismissed the proceeding against two defendants (Professor Lyon and Ms.

Elliott). [ 11 ] The appeals are brought on the basis that the judge erred in her assessment under s. 4 of the PPPA . Mr. Galloway’s own appeal and cross appeals assert the judge erred in her findings regarding certain principles of the law of defamation and in the application of the Limitation Act, S.B.C. 2012, c. 13 . [ 12 ] For the reasons that follow, we dismiss most of the appeals, except to allow Mr. Galloway’s appeal partially, with respect to the publication of Lyon No. 2 on November 15, 2015 and the publication Lyon No. 3 to Professor Taylor. We dismiss his appeal against Ms.

Elliott. [ 13 ] We allow aspects of Mr. Galloway’s cross appeals with respect to the Limitation Act , namely on Maillard No. 1 (other than its initial publication at the November 15 meeting); Rooney No. 1 (except the publication to Ms. Flegg); and A.B. No. 1 (except for the initial publication to Professor Maillard, Professor Lyon, and Ms. Rooney, and the republication to Professors Maillard and Lyon at the November 15 meeting). His cross appeal on Gray Nos. 4 and 5 is dismissed. [ 14 ] We acknowledge the judge’s careful and detailed analysis of the many issues raised in the applications before her.

Given the voluminous record in this case, these reasons should be read with the chambers judge’s comprehensive and well-organized judgment. It is not this Court’s intention to be duplicative or repetitive of the judge’s careful work below nor is it the role of this Court on appeal to re- hear and re-assess the applications that were before her.

Framework of s. 4 of the PPPA [ 15 ] We first situate this matter within the framework of the PPPA . [ 16 ] The applications below were brought pursuant to s. 4 of the PPPA , which authorizes individuals who have been sued over an “expression” to apply for the dismissal of the action if the expression relates to a matter of public interest and certain other conditions are met.

Section 4 of the PPPA reads: Application to court 4

(1) In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that (

a) the proceeding arises from an expression made by the applicant, and (

b) the expression relates to a matter of public interest.

(2) If the applicant satisfies the court that the proceeding arises from an expression referred to in subsection (1), the court must make a dismissal order unless the respondent satisfies the court that (

a) there are grounds to believe that (

i) the proceeding has substantial merit, and (ii) the applicant has no valid defence in the proceeding, and (

b) the harm likely to have been or to be suffered by the respondent as a result of the applicant’s expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression. [ 17 ] As mentioned, the PPPA was a legislative response to what are commonly referred to as strategic lawsuits against public participation (“SLAPPs”). SLAPPs are “lawsuits initiated against individuals or organizations who speak out or take a position on issues of public interest” in an effort to silence or deter that party from participating in public affairs ( Hobbs v.

Warner , 2021 BCCA 290 , at para. 6 , leave to appeal to SCC ref’d, 39922 (28 April 2022)). SLAPPs are tactical actions that seek to suppress expression on matters of public interest and the goal “is not necessarily a legal victory, but a political one: to intimidate and suppress criticism with the threat of costly litigation” ( Hansman, at para. 46). [ 18 ] A key feature of a SLAPP is “the strategic use of the legal system to silence contrary viewpoints” ( Hansman , at para. 46; see also Pointes, at para. 2).

This can serve to chill debate on matters of legitimate public interest, resulting in inappropriate censorship and self- censorship ( Hansman, at para. 46, citing WIC Radio Ltd. v. Simpson , 2008 SCC 40 , at para. 15 [ WIC ] ). The “archetypal SLAPP” is described as generally involving a “powerful or wealthy plaintiff, who has suffered only nominal damage, using litigation against a comparatively under-resourced defendant to silence criticism” ( Hansman, at para. 47).

However, SLAPPs do not always have those features as they are not always initiated by the rich and powerful, and the plaintiff may not have a history of using litigation or the threat of litigation to silence critics (para. 48).

Ultimately, the consistent defining feature of a SLAPP is that it acts to silence the defendant and to suppress debate on matters of public interest, rather than to remedy serious harm that the plaintiff suffered ( Hansman, at para. 48; Pointes , at para. 2). [ 19 ] The PPPA “creates a procedure for screening proceedings arising from expression on matters of public interest at an early stage”

( Hansman , at para. 49). More specifically, s. 4 “function[s] as a mechanism to screen out lawsuits that unduly limit expression on matters of public interest through the identification and pre-trial dismissal of such actions” ( Pointes , at paras. 16, 62, in relation to the equivalent provision in Ontario’s Courts of Justice Act , R.S.O. 1990, c. C. 43, s. 137.1 [ CJA ]). [ 20 ]

Section 4 evaluates the merits of the proceeding and whether there are any valid defences in order to ensure the proceeding is meritorious; however, it also engages with the concern the PPPA seeks to address by assessing “public interest and public participation implications” ( Pointes , at para. 62). Thus, the public interest aspect of s. 4 serves as a backstop that allows judges to dismiss a claim if the public interest in protecting the expression at issue outweighs the public interest in allowing the proceeding to move forward, even if, on its face, the claim appears meritorious.

This recognition, that even claims with substantial merit can be dismissed if outweighed by the public interest in preserving free debate, is a core feature of s. 4 ( Hansman , at para. 51, citing Pointes , at para. 62). Issues on Appeal [ 21 ] At its core, these appeals allege errors with how the chambers judge applied the test under s. 4 of the PPPA to the defamation claims brought by Mr. Galloway. [ 22 ] Except for Mr. Galloway, the appellants (with respect to their own expressions), contend the judge erred in:

a) concluding there were grounds to believe Mr. Galloway’s defamation proceeding had substantial merit;

b) concluding there were grounds to believe the defence of fair comment was not valid in the circumstances;

c) finding malice undermined the defences of fair comment and qualified privilege; and

d) concluding that the public interest in allowing the proceeding to continue outweighed the public interest in protecting the expressions. [ 23 ] In Mr.

Galloway’s appeal and cross appeals, he alleges the judge erred by dismissing certain claims on the basis of limitations defences and “pruning” certain claims from those that were allowed to proceed against the same appellant; finding certain expressions were not defamatory; and finding the defence of fair comment should succeed in relation to certain claims. [ 24 ] Although there is significant overlap in the nature of the issues raised, we address the issues specific to each individual appeal in the analysis below.

Standard of Review [ 25 ] We underscore at the outset that strict standards of appellate review are dispositive of most of these appeals. Deference is owed both to the judge’s findings of fact and to her exercises of discretion, absent reviewable error. [ 26 ] A judge’s

interpretation of the s. 4 PPPA framework itself raises questions of law reviewable on a standard of correctness ( Pointes , at para. 97). However, a judge’s ultimate determination on a s. 4 application is entitled to deference on appeal absent a reviewable error ( Hansman , at para. 56, citing Bent , at para. 77, which in turn cites Housen v. Nikolaisen, 2002 SCC 33 , at paras. 8 , 36). [ 27 ] Once the chambers judge has correctly interpreted s. 4 of the PPPA , Pointes is clear that the assessment under s. 4(2)(a)—the merits-based hurdle—must be made from the perspective of the judge hearing the application.

The Court’s statement in Pointes makes clear that the standard of review on the application of s. 4 to the facts is therefore highly deferential: [41] Importantly, the assessment under s. 137.1(4)(

a) must be made from the motion judge’s perspective. With respect, I am of the view that the Court of Appeal for Ontario incorrectly removed the motion judge’s assessment of the evidence from the equation in favour of a theoretical assessment by a “reasonable trier” (para. 82). The clear wording of s. 137.1(4) requires “the judge” hearing the motion to determine if there exist “grounds to believe”. Making the application of the standard depend on a “reasonable trier” improperly excludes the express discretion and authority conferred on the motion judge by the text of the provision.

The test is thus a subjective one, as it depends on the motion judge’s determination. [ 28 ] The standard of review for a judge’s finding on defamation differs depending on the nature of the alleged error ( Level One Construction Ltd. v. Burnham , 2019 BCCA 407 , at para. 34 [ Level One ]; Kazakoff v. Taft , 2018 BCCA 241 , at para. 29 ). The first question of whether the words are reasonably capable of bearing a defamatory meaning is a question of law and subject to a standard of review of correctness ( Weaver v. Ball , 2020 BCCA 119 , at para. 28 [ Ball ], citing Level One , at paras. 33–34 ).

The second question of whether the words are in fact defamatory is a question of fact and the palpable and overriding error standard of review applies ( Ball , at para. 28 , citing Level One , at paras. 33–34 ; Kazakoff , at para. 29 ). A judge is not required to explicitly state their conclusion on the first question since if the words are found to be in fact defamatory, they must also be capable of that meaning. Thus, the first question is subsumed into the second ( Kazakoff , at para. 27 ).

However, even where a judge has merged the two lines of inquiry and concluded the words are in fact defamatory, this Court will still review on a correctness standard whether the words were capable of being defamatory if that is the alleged error ( Kazakoff , at para. 29 ). [ 29 ] The appellants here, except Mx. Rombough, all appeal on the basis that the judge erred in her analysis of the fair comment defence.

The standard of review on the question of whether the judge should have found grounds to believe there is no valid defence in the proceeding is particularly deferential, given the highly discretionary nature of the s. 4 scheme. A discretionary decision is only reversible on appeal “where [the lower] court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice” ( Penner v. Niagara (Regional Police Services Board) , 2013 SCC 19 , at para. 27 ).

[30] Whether words are recognizable as comment or statements of fact is a question of fact (Vander Zalm v. Times Publishers,Bierman, McLintok and Underhill, (1980) 18 B.C.L.R. 210 at 213, (C.A.)); the applicable standard of review ispalpable and overriding error. In the context of qualified privilege and fair comment, whether the defendant acted out of malice is aquestion of mixed fact and law to which the palpable and overriding error standard also applies, absent an error in principle (Martin v.Lavigne, 2011 BCCA 104, at para. 32; Cimolai v. Hall, 2007 BCCA 225, at para. 30). [31] We also note that s. 9(5)(

b) of the PPPA allows for cross-examination on affidavits, which occurred below regarding many of theappellants’ and Mr. Galloway’s affidavits. Therefore, it was for the judge to determine the parties’ credibility. These findings deserveparticular deference (R. v. G.F., 2021 SCC 20, at para. 81). Though the judge made limited credibility findings, a judge should defer anyultimate assessments of credibility to trial given those made at this stage are only preliminary.

Credibility findings at this preliminarystage are still entitled to deference. [32] Apart from the issues raised with respect to s. 4 of the PPPA, the cross appeals raise different issues concerning limitationperiods. Whether a limitation period has begun to run or has expired is a question of mixed fact and law; therefore, a standard of palpableand overriding error applies (Lewis v. Fraser-Fort George (Regional District), 2018 BCCA 285, at para. 43; Longo v. MacLaren ArtCentre Inc., 2014 ONCA 526, at para. 38). The question of discoverability is also one of mixed fact and law (Gautam v.

South CoastBritish Columbia Transportation Authority, 2020 BCCA 135, at para. 72, leave to appeal to SCC ref’d, 39282 (23 December 2020)). [33] The

interpretation or construction of the Limitation Act (including, for example, the

interpretation of legislated discoverabilitycriteria) is a question of law (The Graham-Aecon Joint Venture v. Malcolm Drilling Company Inc., 2022 BCCA 319, at para. 18). Background Chronology [34] Bearing in mind the nature of the issues and the standards of review that bind us, we now turn to the background facts, which arelargely undisputed. [35] The Appendices to these reasons provide details of Mr. Galloway’s claims of defamation, the defences at issue on appeal, andwhether the chambers judge granted or dismissed an individual appellant’s PPPA application. [36] Mr.

Galloway brought his action against multiple different defendants. These defendants were alleged to have collectively madeapproximately three dozen different defamatory statements, some of which were then alleged to have been repeated or republished anumber of times. Mr. Galloway argued, and the judge accepted, that the unifying theme that underlay these various written and oraldefamatory statements was that they asserted Mr. Galloway had engaged in criminal behaviour, which could reasonably be understood toassert that he had raped, sexually assaulted or physically assaulted the appellant A.B. [37] Mr.

Galloway’s Amended Notice of Civil Claim (“ANOCC”) identified each of these defendants and the statement, orstatements, they were alleged to have made or repeated. Each statement was identified by number. A.B. was alleged to have made twosuch statements, A.B. No. 1 and A.B.

No. 2, though these statements were also alleged to have been repeated or republished by others.Some defendants were alleged to have made a single defamatory statement while others were alleged to have made several or moredistinct defamatory statements. [38] Early in her judgment, the judge identified each of the defendants and their backgrounds in considerable detail (paras. 20–45).Two defendants, Ms. Glynnis Kirchmeier and Ms. Brit Bachmann, abandoned their appeals of the judge’s decision to dismiss their PPPAapplications. The judge granted the applications of Professor Annabel Lyon and Ms.

Alicia Elliott, thereby dismissing Mr. Galloway’saction against them. Mr. Galloway appeals those dismissals. A.B., Professor Keith Maillard, Ms. Chelsea Rooney, Dr. Mandi Gray,Dr. Theresa Smalec, Dr. Kiera Anderson, Mx. Ari Rombough and Dr. Marcelle Kosman each now appeal the dismissal of the PPPAapplications against them. [39] The judge identified that only A.B., Professor Maillard, Professor Lyon, and Ms. Rooney had any earlier connection toMr. Galloway, and only Professor Maillard, Professor Lyon, Ms. Rooney, and Dr.

Gray had any personal connection to A.B (para. 18).The remaining defendants were educators, artists and writers who did not have any connection with A.B., but they made the allegedlydefamatory statements against Mr. Galloway in different forums, including in articles, oral presentations and online. [40] After identifying the parties to the action, the judge provided a basic background to the claims, which included a chronology ofevents beginning in 2011–2013 and ending in fall 2018 when Mr. Galloway filed his action. She developed this background inconsiderable detail over more than 75 pages (paras. 75–316).

It was in this background that she identified, by number and with referenceto the ANOCC, each of the alleged defamatory statements made. Because context is important to many of these statements, and to manyof the defences the appellants raised, the judge’s detailed chronology anchored her judgment. [41] On appeal, we provide a high-level

summary of certain key events. However, this

summary omits many details that wereimportant to the judge’s findings and that are relevant to our conclusions. We have also identified a few further alleged specificdefamatory statements for illustrative purposes. We otherwise rely on the detailed chronology in the judge’s reasons. [42] Mr. Galloway began teaching in the Creative Writing Program at UBC in 2000. In 2013, he became the Chair of the Program. Atthe time, Mr.

Galloway was also a well-known Canadian author who, as of November 2015, had published four award-winning and best-selling novels. [43] Between 2011 and 2012, A.B. was a mature graduate student in the Creative Writing Program. A.B. claims that in March 2011,she and Mr. Galloway were alone on his boat when he assaulted her by choking her. She also claims that between March and May 2011,Mr. Galloway sexually assaulted her on three separate occasions. He denies all these allegations. From 2011 to 2013, Mr. Galloway andA.B. were sexually involved in what Mr. Galloway publicly described as a consensual affair.

A.B. did not accept that description. Thequestion of whether their relationship was consensual, or whether A.B. was a victim of sexual assault, was not before the chambers

judge. [ 44 ] In 2014, A.B. left UBC, having not completed the thesis she required to graduate, and returned to Ontario. She says that during this time, she came across essays about gendered sexual violence in the Canadian literary and academic writing community and the silencing of victims. One of these articles was written by Professor Paul Krause with respect to problems of sexual violence on university campuses and sexual harassment of students by professors, including at UBC. She says these essays caused her to reflect on her own responsibility to report Mr.

Galloway’s conduct to UBC. [ 45 ] Professor Maillard and Professor Lyon were, respectively, a professor and an associate professor in UBC’s Creative Writing Program. Both knew A.B.—Professor Maillard had been A.B.’s thesis supervisor and Professor Lyon had been a “second reader” for that thesis. Prior to these events they were also both close friends of Mr. Galloway. [ 46 ] In August 2015, A.B. reached out to Professor Krause for support and they began communicating by email. Professor Krause recommended A.B. reach out to the appellant Dr. Gray and to Ms. Ronna Syed. Dr.

Gray was a doctoral candidate whose research focussed on how sexual violence affects survivors as well as the various institutional and other barriers that survivors face in holding their assailants and the involved institutions accountable. Ms. Syed was a CBC producer involved with the CBC’s Fifth Estate program. At some point in September and October 2015, A.B. told each of Professor Krause and Dr. Gray that Mr.

Galloway had raped or sexually and physically assaulted her. [ 47 ] On November 11, 2015, A.B. forwarded an open letter about a Fifth Estate episode on sexual violence to both Professor Maillard and the Chair of the Creative Writing Program (who at the time was Mr. Galloway); however, the body of the email was only specifically addressed to Professor Maillard. A day later, Professor Maillard and A.B. exchanged emails within which A.B. said she was ready to talk to him about her own “terrible experience” within the UBC Creative Writing Program. Professor Maillard told Mr.

Galloway that A.B. was prepared to discuss her concerns. In response, Mr. Galloway phoned A.B. and left her two voicemails. A.B. said she was panicked by these calls that seemingly came “out of the blue” because she had not talked to Mr. Galloway since May 2014. However, Mr. Galloway asserted that because A.B. had emailed him, she was the one who initiated contact. [ 48 ] On November 12, Professor Maillard and A.B. had a phone call where she told him that Mr. Galloway had sexually assaulted, sexually harassed and physically assaulted her. She told him other women in the program, including the appellant Ms.

Rooney, had experienced “inappropriate behaviour” from Mr. Galloway. Ms. Rooney was a former student of Mr. Galloway and had known him since 2005. He had been her initial thesis advisor; however, Professor Maillard assumed this role after Ms. Rooney felt her relationship with Mr. Galloway had became strained and uncomfortable (para. 24). [ 49 ] At about the same time, A.B. told Ms. Rooney that Mr. Galloway had raped her. Ms. Rooney accepted what A.B. said as true because of Ms. Rooney’s own negative experiences with Mr. Galloway. Within two or three days, A.B. told Professor Lyon and Ms. Syed similar things.

Professor Maillard repeated these assertions to Professor Lyon. A.B.’s statement to Professor Maillard, Professor Lyon, Ms. Rooney and “others” known to her that Mr. Galloway had “raped”, “sexually assaulted”, and “physically assaulted” her are the alleged defamatory statements that form the basis of A.B. No. 1 . [ 50 ] On November 12 or 13, Professor Maillard phoned Ms. Rooney following his call with A.B. Ms. Rooney apparently raised her own concerns about Mr. Galloway, sharing that there were a number of other women who had told her that Mr.

Galloway had engaged in “inappropriate behaviour” towards them (para. 123). They discussed that Ms. Rooney would speak to these women about whether they intended to come forward with complaints about Mr. Galloway. Ms. Rooney asserted that she and Professor Maillard agreed she would contact others who Ms. Rooney knew or believed had either witnessed something relevant to A.B.’s claims against Mr.

Galloway or who might have a reason to advance their own complaint against him (paras. 123–124). [ 51 ] On November 13, A.B. sent an email to the Office of UBC’s President and to two others, one of whom was the Associate Director, Student Conduct and Safety for UBC and was also with the Equity Office. The third individual was also with UBC. The email submitted a “formal complaint about a sexual assault perpetrated on [A.B.] by a current UBC professor” (para. 113).

In the day or two that followed, A.B. exchanged further emails with these individuals. [ 52 ] On November 14, Professors Maillard and Lyon, and others in the department, organized a meeting, for the next day, of the entire Creative Writing Department’s tenured and tenure-track faculty. Mr. Galloway was not aware of the meeting and was excluded from participating. Professor Maillard sent A.B. an email asking if she could provide any evidence that would “help to convince” the persons attending the faculty meeting of her allegations (para. 127). Commencing on about November 14, Ms.

Rooney spoke to a number of individuals, some of whom had been identified to her by A.B., concerning complaints about Mr. Galloway. In the ANOCC Mr. Galloway alleged that Ms. Rooney told these individuals he had “raped A.B.”. This was the basis of Rooney No. 1 . [ 53 ] On November 15, A.B. provided a lengthy email response to Professor Maillard that the judge quoted in its entirety (para. 128), given its importance in the chronology and to the issues on the PPPA applications. There were also various other email and phone communications exchanged among A.B., Professor Maillard, Professor Lyon and Ms.

Rooney that are described at length by the judge (paras. 125–141). [ 54 ] One of those documents was an email from A.B. to Professors Maillard and Lyon referred to as the “CBC Document” (para. 140) in which A.B. asserted that CBC wanted “[her] rape by [Mr. Galloway] to be one of the two lead stories” in a Fifth Estate documentary that was to air on November 20. She said, among other things, that a “CBC legal team” had said it “want[ed] to give [A.B.] a national platform to tell [her] story”.

In A.B.’s subsequent cross-examination, she admitted that critical statements in the CBC Document were complete and deliberate fabrications (para. 142); in the judge’s words, the CBC Document was a “tissue of lies” (para. 539). [ 55 ] At the November 15, 2015 meeting of the Creative Writing Department (the “November Meeting”), each attendee was provided a package of materials (detailed at para. 145). The meeting was held at Professor Linda Svendsen’s home; she also acted as chair of the meeting. As secretary, Professor Nancy Lee took reasonably detailed notes for the meeting.

Her notes indicate, among other things, that Professor Maillard recounted to the faculty his conversations with A.B. regarding her allegations against Mr. Galloway. Professor Lyon then presented various other materials and the CBC Document.

[ 56 ] Professor Lee’s notes indicate Professor Maillard said he was convinced A.B. was telling the truth (para. 153). His alleged assertion at this faculty meeting that Mr. Galloway had “raped A.B.”, “sexually assaulted A.B.”, and “physically assaulted A.B.” comprise part of Maillard No. 1 .

Various statements alleged to have been made by Professor Lyon at the meeting formed part of the basis of Lyon Nos. 1 and 2 (described in ANOCC, at para. 28). [ 57 ] Following the faculty meeting, Professor Lyon contacted the Dean of Arts’ office and arranged for a meeting the following day between representatives of the Dean’s office and faculty members. [ 58 ] On November 16, Mr. Galloway received an email from the Dean, advising him that he had been suspended and requiring that he step aside as Chair. Mr. Galloway then spoke to the Dean who repeated much of what had been said in the email. Mr.

Galloway attempted to reach colleagues who either did not respond or deflected his inquiries. On November 16, the Dean issued a memo to the faculty, staff and students of the Creative Writing Program, advising that “serious allegations” had come to the attention of the Program and the Dean’s Office. The memo further advised that Mr. Galloway had been suspended and temporarily removed as Chair, pending an investigation. Over the next several days, numerous media outlets reported on UBC’s suspension of Mr.

Galloway. [ 59 ] By the end of November 2015, UBC engaged retired British Columbia Supreme Court Justice Mary Ellen Boyd to investigate the allegations against Mr. Galloway (the “Boyd Investigation”). Mr. Galloway subsequently signed a confidentiality agreement that stated he would be provided with information about the allegations made against him, including the identity of the complainant, but he would not be able to disclose this information to the public. [ 60 ] Ms. Boyd ultimately concluded it could not be established on a balance of probabilities that Mr.

Galloway had sexually assaulted A.B., but the evidence established that he had, at some point, sexually harassed A.B. (the “Boyd Report”). [ 61 ] At the same time, the UBC Faculty Association brought a grievance against UBC on Mr. Galloway’s behalf alleging a breach of his privacy rights in connection with the circulation of the Dean’s memo. [ 62 ] On January 6, 2016 and thereafter, in the context of the Boyd Investigation, Mr. Galloway received various documents. This included, for example, Professor Lee’s November Meeting notes.

These documents were identified by the judge and were relevant to the limitation issues raised by some of the defendants. [ 63 ] On April 25, 2016 the Boyd Report was submitted to the Dean as a confidential document. On June 18, 2016, UBC terminated Mr. Galloway’s employment. Around the same time, the UBC Faculty Association brought a second grievance against UBC on behalf of Mr. Galloway arising from the Boyd Report and UBC’s public statements regarding Mr.

Galloway’s termination. [ 64 ] In November 2016, more than 80 notable members of Canada’s literary community signed an open letter criticizing UBC’s investigation into Mr. Galloway’s actions and demanding due process for him. This is referred to as the “UBC Accountable letter” and was associated with the Twitter hashtag “#ubcaccountable”. This open letter created a “firestorm” of discussion on social media.

In response to the UBC Accountable letter, a counter letter was published that expressed anger over, for example, the fact that the original UBC Accountable letter expressed no support for the complainant and focussed on Mr. Galloway’s interests. This counter letter was signed by several of the appellants. On Twitter, the counter letter was associated with the hashtag “#ubcunaccountable”. [ 65 ] A number, though not all, of the alleged defamatory statements made by various appellants were made in the context of the Boyd Report, the UBC Accountable letter or out of the ensuing and ongoing discussion about Mr.

Galloway and his termination. The details of the specific expressions at issue on this appeal are identified and addressed in our substantive analysis on the individual appeals. [ 66 ] On June 8, 2018, Mr. Galloway was awarded $167,000 in damages pursuant to the initial grievance arbitration the UBC Faculty Association had brought on his behalf. The arbitrator found that certain communications by UBC contravened Mr. Galloway’s privacy rights. On September 25, 2018, Mr.

Galloway was awarded supplemental damages arising from a second arbitration, in the amount of $60,000 for the continued breach of his privacy rights and ongoing harm to his reputation. [ 67 ] On October 26, 2018, Mr. Galloway filed his notice of civil claim. Most of the defendants then brought applications to have the claims against them dismissed pursuant to s. 4 of the PPPA . General Conclusions [ 68 ] We discuss the judge’s reasons in further detail when addressing each appeal and cross appeal. This will be followed by a

summary of her disposition of each statement and conclusion on the limitations defence. At this point, we discuss her general conclusions in order to frame the analysis that follows. [ 69 ] There was no dispute the appellants had satisfied the conditions in s. 4(1) of the PPPA that the defamation proceeding arose from the expression(

s) made by the respective applicant (appellant) and the expression(

s) related to a matter of public interest (para. 49). Therefore, the judge focussed on the requirements under s. 4(2)(

a) that required Mr. Galloway to demonstrate there were grounds to believe his underlying claims were legally tenable and supported by evidence that was reasonably capable of belief such that the claims had a real prospect of success (paras. 50, 393, citing Pointes , at para. 54). [ 70 ] Furthermore, Mr. Galloway was required to show grounds to believe that there was no valid defence in the proceeding as per s. 4(2) (a)(ii) of the PPPA (para. 505, citing Bent , at para. 103). This did not require the judge to find conclusively that there was no valid defence, but rather the judge said Mr.

Galloway would meet this burden if she was satisfied based on the record and law, and taking into account the stage of the proceeding, that the defence the applicant had put in play did not tend to weigh more in the applicant’s favour (para. 505, citing Bent , at para. 103). [ 71 ] The judge first observed that if she concluded some of the claims against one applicant had substantial merit and no valid

defence, but others against the same applicant either had no substantial merit or had a valid defence then she was not bound to allow all the claims against that applicant to go forward. The judge concluded that s. 4 of the PPPA is not an “all or nothing” situation. It does not require allowing a claim that lacks substantial merit or where the plaintiff has failed to show there is no valid defence to go forward on the “coattails of other claims … [that do] have substantial merit and no valid defence” (para. 413). [ 72 ] Several of the appellants relied on the Limitation Act , to argue that Mr.

Galloway’s claims were statute barred. For example, with respect to A.B. No. 1 , Maillard No. 1 , Lyon Nos. 1–2 and Rooney No. 1 , the appellants argued that Mr. Galloway’s claim was statute barred under the Limitation Act because the limitation period for this claim expired by the time Mr. Galloway filed his notice of civil claim on October 26, 2018 (para. 508). The judge concluded Mr. Galloway failed to meet his burden to show grounds to believe the limitation defence raised in respect of those claims was not a valid defence and had no real prospect of success (para. 530).

Legal Framework and Principles [ 73 ] The judge below comprehensively and accurately set out the applicable legal principles (paras. 319–392). We simply summarize them and provide any further detail in our analysis.

Section 4 of the PPPA [ 74 ] Hansman , and the earlier companion cases of Pointes and Bent , discussed four steps involved in an analysis of an application under s. 4 of the PPPA ( Hansman , at para. 53; Bent, at para. 76, citing Pointes , at para. 18). Pointes and Bent apply with equal force to s. 4 of the PPPA because of the substantial similarity between the Ontario and British Columbia anti-SLAPP legislation ( Hansman, at para. 52). [ 75 ] After the chambers judge delivered her decision and since we reserved judgment on these appeals, the Supreme Court of Canada issued its decision in Hansman .

The appellants filed further written submissions after the hearing in order to address the effect of Hansman on these appeals. These submissions were made jointly and consolidated the largely similar positions of the parties on common grounds of appeal. [ 76 ] Hansman was driven by its own specific facts, but it has not changed the legal framework established in Pointes and Bent with respect to the

interpretation and application of the PPPA . [ 77 ] In the following paragraphs, the “defendant” is the individual against whom a defamation proceeding has been commenced and is also the individual who has brought an application pursuant to s. 4 of the PPPA for a dismissal of that proceeding (i.e., the “applicant” under s. 4 ) .

The “plaintiff” is the individual alleging they were defamed by the defendant and whose proceeding is the subject of the PPPA application. [ 78 ] To bring a s. 4 application, the defendant must first establish that the proceeding against them arises from an expression relating to a matter of public interest.

Once the defendant has established this, the plaintiff bears the burden on the next three steps and must satisfy the judge that: 1) there are grounds to believe the proceeding has substantial merit; 2) there are grounds to believe the defendant has no valid defence to the action; and 3) the harm likely to have been or to be suffered by the plaintiff as a result of the defendant’s expression is serious enough that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the defendant’s expression.

See Hansman , at para. 53; Bent, at para. 76, citing Pointes , at para. 18. [ 79 ] Courts should favour a “broad and liberal

interpretation” in deciding what is a matter of public interest ( Bent , at para. 81; Pointes, at para. 26; Zeppa v. Rea, 2023 ONCA 668 at paras. 18–19 ). [ 80 ] Pointes made clear that s. 4 explicitly provides for a “grounds to believe” standard rather than a balance of probabilities standard ( Pointes , at para. 39; see also Hansman , at para. 53). The “grounds to believe” standard means “something more than mere suspicion, but less than … proof on the balance of probabilities ( Hansman , at para. 94, citing Pointes, at para. 40).

Thus, a “grounds to believe” standard only requires a basis in both the record and the law for “finding that the underlying proceeding has substantial merit and that there is no valid defence” ( Bent , at para. 87, citing Pointes, at para. 39). It follows that any basis in the record and the law is sufficient to meet this standard as long as the basis is “legally tenable and reasonably capable of belief” ( Bent , at para. 88). [ 81 ] At the first step of the plaintiff’s burden, the judge must determine, in context with “grounds to believe”, whether the claims of defamation have substantial merit.

Pointes and Bent interpreted “substantial merit” to mean a “real prospect of success—in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff” ( Bent , at para. 90, citing Pointes , at para. 49).

Requiring a real prospect of success is a more demanding standard than “some” chance of success or a “reasonable” prospect of success ( Pointes , at para. 50). [ 82 ] At the second step of the plaintiff’s burden, to demonstrate a defendant has no valid defence, there must be a basis in the record and the law to support a finding that the defence does not tend to weigh more in favour of the plaintiff ( Bent , at para. 103). The logic essentially flows as follows:

i) the plaintiff must show there are grounds to believe the defence(

s) has no real prospect of success; ii) this requires showing there are grounds to believe the defence(

s) does not tend to weigh more in favour of the defendant; and iii) due to the definition of “grounds to believe”, there must be a basis in the record and the law (taking into account the stage of the proceeding) to support a finding that the defence(

s) does not tend to weigh more in favour of the defendant ( Bent , at para.103).

[ 83 ] The “fundamental crux” or core of the s. 4 analysis is in the final weighing of the various public interests in s. 4(2)(b) ( Hansman , at para. 58; Pointes , at paras. 18, 62). This last step allows the court to scrutinize “what is really going on” in the case before them and serves as a “robust backstop to protect freedom of expression” ( Pointes , at paras. 53, 81). [ 84 ] Consideration of the harm contemplated in s. 4(2) (

b) requires that the harm was suffered by the plaintiff as a result of the applicant’s expression. Either monetary or non-monetary harm can be considered ( Pointes , at paras. 68–69). Given the language in s. 4(2) (

b) refers to the term “likely” when describing the harm suffered by the plaintiff, harm or causation need not be proved, but there must be evidence sufficient for a judge to infer a causal link between the expression and the harm suffered ( Pointes , at para. 71; Hansman , at para. 68). Where there are multiple defendants speaking out against the plaintiff, “inferring a causal link between [a single] defendant’s expression and the harm suffered by the plaintiff becomes both more important … and more difficult” ( Hansman , at para. 68). [ 85 ] In a defamation action, general damages are presumed.

This presumption is sufficient to show the existence of harm, but what is more important to consider is the magnitude or seriousness of the harm ( Hansman, at para. 67; Bent , at para. 144, citing Pointes , at para. 70). This is because to “hold otherwise would be to presumptively tip the scales in favour of the plaintiff in defamation cases and effectively gut the weighing exercise” ( Hansman , at para. 67).

Thus, presumed general damages alone or bare assertions of harm are an insufficient basis on which a judge can draw an inference of likelihood of harm of a magnitude that outweighs the public interest in protecting the defendant’s expression ( Hansman , at para. 67). There is a distinction between the establishment of harm and the magnitude of harm ( Park Lawn Corporation v.

Kahu Capital Partners Ltd. , 2023 ONCA 129 , at para. 47 , leave to appeal to SCC ref’d, 40715 (2 November 2023) [ Park Lawn ]). [ 86 ] On a PPPA application, a plaintiff cannot be expected to present a fully developed damages brief; it is sufficient to provide evidence that allows a causal connection to be drawn between the expression and damages that are more than nominal (see e.g., Hansman , at para. 65; Pointes, at para. 115).

It is true that where there are multiple potential causes of the harm suffered, a court should consider how each individual defendant contributed to the harm; however, “[w]hether a connection in fact exists is a matter for trial”, as is any potential determination of the individual attribution to the harm suffered ( Hobbs , at para. 88 ). [ 87 ] In a case such as the one at bar where the impugned statements concern allegations of criminal misconduct, the harm arises from the nature of the allegation and the plaintiff has no obligation to prove actual loss ( Hobbs , at para. 84 ). [ 88 ] The closer an expression is to the core values underlying the right to freedom of expression in s. 2(

b) of the Charter , the greater the public interest in its protection ( Pointes , at para. 77).

Certain other factors can be considered to guide the weighing of public interest ( Pointes , at para. 80): … the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation.

See also Hansman , at para. 60. [ 89 ] Furthermore, when conducting the public interest weighing exercise, a court can consider some of the recognized indicia of a SLAPP suit: (1) a history of the plaintiff using litigation or the threat of litigation to silence critics; (2) a financial or power imbalance that strongly favours the plaintiff; (3) a punitive or retributory purpose animating the plaintiff’s bringing of the claim; and (4) minimal or nominal damages suffered by the plaintiff ( Pointes, at para. 78, citing Platnick v. Bent , 2018 ONCA 687 , at para. 99 ).

Notably, not all SLAPPs possess these recognized indicia ( Hansman , at para. 48). [ 90 ] The above factors are only to be considered to the extent that they are tethered to the text of s. 4(2)(

b) and the considerations that the legislature explicitly contemplated ( Hansman , at para. 60, citing Pointes, at para. 80). [ 91 ] If the plaintiff cannot meet their burden, the s. 4 application is granted and the underlying proceeding will be dismissed.

Defamation [ 92 ] To succeed in a defamation action, the plaintiff must prove three criteria on a balance of probabilities ( Grant , at para. 28 ; Bent , at para. 92): 1) that the impugned words were defamatory, meaning that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; 2) that the impugned words in fact referred to the plaintiff; and 3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. [ 93 ] If these three elements are proved, falsity and damages are both presumed ( Grant , at para. 28 ).

Defamation is a tort of strict liability because the plaintiff is not required to show the defendant intended to do harm, or even that the defendant was careless (para. 28).

Once the plaintiff has met their burden of proving the required elements, the burden shifts to the defendant to advance a defence that would allow them to escape liability successfully (para. 29). [ 94 ] To determine whether a statement is defamatory, two distinct questions must be answered: (1) are the words reasonably capable of having a defamatory meaning; and if so, (2) do the words, in fact, bear a defamatory meaning ( Level One , at para. 33 ). However, as mentioned previously, a judge is not required to ask and answer the two questions separately since the first question is logically

subsumed into an inquiry of the second question (Weaver v. Corcoran, 2017 BCCA 160, at para. 67 [Weaver]). Thus, the judge isultimately tasked with determining whether the impugned words did, in fact, have a defamatory meaning (an inquiry that in the contextof a s. 4 PPPA application need not be determinative but looks only to whether the claims have substantial merit). [95] Any words that tend to lower an individual’s reputation in the eyes of a reasonable person or expose an individual to hatred,contempt or ridicule are defamatory (Weaver, at para. 68, citing Grant, at para. 28; Botiuk v.

Toronto Free Press Publications Ltd.,[1995] 3 S.C.R. 3, at para. 62, , at para. 62). [96] It is unquestionably defamatory to accuse an individual by implication or insinuation of committing a criminal act (Hansen v.Tilley, 2009 BCSC 360, at para. 27, aff’d 2010 BCCA 482). In determining whether words are in fact defamatory, a court may look atthe surrounding circumstances (Botiuk, at para. 62). A court also looks to the “natural and ordinary” meaning of the words (Pan v. Gao,2020 BCCA 58, at para. 61, citing Taseko Mines Ltd. v.

Western Canada Wilderness Committee, 2017 BCCA 431, at para. 47 [Taseko]).Generally, what an ordinary person would infer without special knowledge has been considered to be the natural and ordinary meaning ofthe words (Lewis v. Daily Telegraph Ltd., [1963] 2 All E.R. 151 (H.L.), at 154–155 [Lewis]).

In Brown on Defamation (Raymond E.Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Toronto: Thomson Reuters) at § 5:3[Brown on Defamation]), the process of determining the “natural and ordinary” meaning of words is discussed as follows: A court must be guided by the test of reasonableness; that is the governing principle. It will not strain to give a particular meaning topublished words, or stretch them beyond their fair meaning.

It will avoid any unusual meaning, or a tortured, forced or unreasonableinterpretation of the language, and the inferences drawn must not be far-fetched. Words will not be distorted to give them an unusualmeaning. They should be judged by their general tenor and tone. The language will not be tortured to make certain that which is notcertain. It is not the ingeniously possible

interpretation, but the plainly normal construction that is preferred. [Footnotes omitted.] [97] In assessing the meaning of the words at issue, the author and/or publisher’s intentions are irrelevant, as is the understanding ofthe plaintiff (Hodgson v. Canadian Newspapers Co. Ltd., (2000) 49 O.R. (3d) 161, at para. 41, (C.A.), leave toappeal to SCC ref’d, 28136 (3 May 2001); Booth v. British Columbia Television Broadcasting System, (1982) 139 D.L.R. (3d) 88, at 93–94, (B.C.C.A)).

The meaning of the words must generally be understood by taking into consideration all of thecircumstances and the publication as a whole (Taseko, at para. 44; Booth, at 93–94). [98] The central question in a defamation claim is whether “the meaning conveyed by the impugned words genuinely threatened theplaintiff’s actual reputation” (Weaver, at para. 68). It is not necessary that actual harm to an individual’s reputation be proven, nor is itrequired that anyone actually thought less of a plaintiff because of the defamation (Ball, at para. 35; see also Kerr v.

Conlogue, (1992) 65B.C.L.R. (2d) 70, at 79–80, (S.C.)). [99] Slander is oral defamation and proof of special damages is required unless the words were slanderous per se. One recognizedcategory where damages are presumed to have been suffered from the very nature of the words, and thus an instance of slander per se,are accusations imputing the commission of a criminal offence (Brown on Defamation, at § 8:8, 8:6). [100] A court will determine if an expression does in fact refer to or is “of and concerning” the plaintiff from the perspective of anordinary or reasonable reader (Knuppfer v.

London Express Newspaper Ltd., [1944] A.C. 116, at 121 (H.L.)). The question to be asked iswhether the expression would lead reasonable people acquainted with the plaintiff to the conclusion that the statements refer to theplaintiff (Knuppfer, at 121; Butler v.

Southam Inc., 2001 NSCA 121, at para. 29). [101] It is still possible for statements or publications to be defamatory of a person even if that person is not identified by name (Brownon Defamation, at § 6:10–6:15). [102] To prove that the defamatory expression has been published, the plaintiff must demonstrate the defendant has, through any act,conveyed the defamatory meaning to any third party who has received it (Crookes v. Newton, 2011 SCC 47, at para. 16, citing McNicholv. Grandy, [1931] S.C.R. 696, at 699, ).

Generally, the form of the defendant’s act and the manner through which the actassists in causing the defamatory expression to reach the third party are not relevant (Crookes, at para. 16). Thus, any act having theeffect of transferring the defamatory content to a third person constitutes a publication (para. 16 citing Stanley v. Shaw and Tracey, 2006BCCA 467, at para. 10). [103] Under the “repetition rule”, anyone who repeats a defamatory statement is no less liable than the person who originated it (Grant,at para. 76).

The logic of the repetition rule also means the fact that someone has already published a defamatory statement does not giveanother person license to repeat the statement without the potential for attracting liability themselves (para. 114).

Defences [104] Ordinarily, once a plaintiff has proved the required elements of a defamation claim, the onus shifts to the defendant to advance asuccessful defence in order to escape liability; however, in the context of a PPPA application, the onus is on the plaintiff to satisfy thecourt that the proceeding has substantial merit and that there are grounds to believe the defendant has no valid defence in the underlyingproceeding (Hansman, at para. 53; see also Pointes, at para. 55).

Fair Comment [105] The justification for the defence of fair comment is premised on “the idea that citizens must be able to openly declare their realopinions on matters of public interest without fear of reprisal in the form of actions for defamation” (Hansman, at para. 95). The defenceis intended to maintain the equilibrium between the competing values of protecting an individual’s reputation from unwarranted attack,on one hand, and encouraging the sort of democratic discourse that is key to a free and open society, on the other. In analyzing this

defence, courts must reconcile these two values rather than preferring one over the other (para. 95). The right of fair comment is “a basicsafeguard against irresponsible political power” (para. 95, citing C. Sappideen and P. Vines, eds., Fleming’s The Law of Torts (10th ed.2011), at 668). [106] A defendant can rely on the defence of fair comment if they can establish the following five elements (Hansman, at para. 96;Grant, at para. 31; WIC, at para. 28):

a) the comment is on a matter of public interest;

b) the comment is based on fact;

c) the comment, though it can include inferences of fact, is recognizable as comment;

d) the comment satisfies the following objective test: “could any person honestly express that opinion on the proved facts?”; and

e) even if the comment meets those elements, the defence can still be defeated if the plaintiff proves that the defendant was actuated byexpress malice. [107] It bears repeating that whether the judge could have found the defence of fair comment would not succeed is a discretionarydecision, subject to significant deference. [108] To rely on the defence of fair comment successfully, the expression must truly be a comment upon given facts and cannot simplybe a statement of facts.

The comment must be recognizable as comment and cannot be so intertwined with fact that a reader is unable todistinguish between what is comment and what is fact (Ager v. Canjex Publishing d.b.a. Canada Stockwatch, 2005 BCCA 467, atpara. 43; Brown on Defamation, at § 15:5). Whether an expression is comment or fact is determined from the perspective of an ordinary,reasonable reader.

Hansman said this regarding the difference between comment and fact: [108] For expression to constitute fair comment, the statement must be one that would be understood by a reasonable reader as acomment rather than a statement of fact...

A comment includes a “deduction, inference, conclusion, criticism, judgment, remark orobservation which is generally incapable of proof” … This is a low threshold; “the notion of ‘comment’ is generously interpreted” … [References omitted.] [109] To demonstrate the comment is based on fact, the comment must indicate, at least generally, the facts on which the comment isbeing made (Hansman, at para. 100; WIC, at para. 31).

The factual basis for the impugned expression “must be explicitly or implicitlyindicated, at least in general terms, within the publication itself or the facts must be ‘so notorious as to be already understood by theaudience’” (Hansman, at para. 99, citing WIC, at para. 34). Thus, the facts must be sufficiently stated or otherwise known to theexpression’s audience such that they can make up their own minds on the merits of the comment (WIC, at para. 31).

The fair commentdefence is not available if the factual foundation is unstated, unknown or discovered to be false (WIC, at para. 31). [110] However, the facts need not actually support the comment, meaning that they need not confirm its truth because the purpose ofthe factual foundation requirement is “to ensure the reader is aware of the basis for the comment”, so that they can come to their ownconclusion as to its merit (Hansman, at para. 100).

The purpose of the factual foundation requirement is not to measure the fairness ofexpression, thus the comment “need not be a reasonable or proportionate response” (Hansman, at para. 100).

Qualified Privilege [111] Statements of opinion and fact may be subject to “qualified” privilege, depending on the context or occasion in which thestatements are made. [112] In Bent, the majority described qualified privilege as follows: [121] An occasion of qualified privilege exists if a person making a communication has “an interest or duty, legal, social, moral orpersonal, to publish the information in issue to the person to whom it is published” and the recipient has “a corresponding interest or dutyto receive it”: Downard, at §9.6 (footnote omitted).

Importantly, “[q]ualified privilege attaches to the occasion upon which thecommunication is made, and not to the communication itself”: Hill, at para. 143; Botiuk, at para. 78. Where the occasion is shown to beprivileged, “the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff”: Hill, atpara. 144; Botiuk, at para. 79. However, the privilege is qualified in the sense that it can be defeated.

This can occur particularly in twosituations: where the dominant motive behind the words was malice, such as where the speaker was reckless as to the truth of the wordsspoken; or where the scope of the occasion of privilege was exceeded (Downard, at §1.9; see also Hill, at paras. 145-47; Botiuk, atparas. 79-80). [122] For this reason, a precise characterization of the “occasion” is essential, as it becomes impressed with the limited, qualifiedprivilege, which in turn becomes the benchmark against which to measure whether the occasion was exceeded or abused. [113] As noted, qualified privilege can be defeated where “the limits of the duty or interest have been exceeded” (Bent, at para. 128,citing Hill v.

Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 146, , Botiuk, at para. 80). This can occur,for example, when the information communicated in a statement is not relevant to discharging the duty or exercising the right that givesrise to the privilege, or when the information is not reasonably appropriate to the legitimate purposes of the occasion (Bent, at para. 128). Malice [114] Even if the fair comment defence or qualified privilege is properly made out, it can be defeated by malice, which is a “state of

mind” ( Smith v. Cross , 2009 BCCA 529 , at para. 42 ). [ 115 ] In the context of a PPPA application, malice is also a relevant factor in weighing competing interests at the last stage of the s. 4 analysis ( Neufeld v. Hansman , 2021 BCCA 222 , at para. 48 , rev’d on other grounds, Hansman , citing Pointes , at para. 75). There are four potential categories under which a finding of express malice can be found ( Hansman, at para. 115; Hobbs , at para. 29 , citing R. D. McConchie and D. A. Potts , Canadian Libel and Slander Actions , (Toronto: Irwin Law, 2004) at 299): A defendant is actuated by express malice if [they publish a] defamatory expression:

i) knowing it was false; or ii) with reckless indifference whether it is true or false; or iii) for the dominant purpose of injuring the plaintiff because of spite or animosity; or iv) for some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion. [ 116 ] The defence is also defeated by proof that subjective malice was the dominant motive behind a particular comment, even if a defendant relies on an objective honest belief ( WIC , at para. 53 ).

The more serious an allegedly defamatory comment is, the more weight courts will give to a defendant’s failure to verify the comment prior to publication as evidence of malice ( Bent , at para. 136, citing P.A. Downard, The Law of Libel in Canada (4th ed. 2018), at § 9:74). [ 117 ] Malice is generally understood to mean spite or ill-will, but it can also be found where a defendant speaks dishonestly or with knowing or reckless disregard for the truth ( Hansman , at para. 115; Hill , at para. 145 ).

Pruning or Trimming Legislation [ 118 ] An issue in this appeal is whether in the context of an anti-SLAPP application, a chambers judge can dismiss individual expressions from a defamation action while allowing other expressions to proceed to trial. This issue is often referred to as one of “pruning” or “trimming” the individual expressions. [ 119 ] As indicated, an assessment of the merits of a defamation claim occurs pursuant to s. 4(2)(

a) of the PPPA and s. 137.1(4)(

a) of Ontario’s CJA. At this point, as all the reported decisions in relation to the issue of pruning arise in Ontario, it is useful to set out both provisions: Protection of Public Participation Act , S.B.C. 2019 c. 3 Courts of Justice Act , R.S.O. 1990, c. C. 43 4

(1) In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that (

a) the proceeding arises from an expression made by the applicant, and (

b) the expression relates to a matter of public interest.

(2) If the applicant satisfies the court that the proceeding arises from an expression referred to in subsection (1), the court must make a dismissal order unless the respondent satisfies the court that (

a) there are grounds to believe that (

i) the proceeding has substantial merit, and (ii) the applicant has no vali

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