On January 10, 2024, the British Columbia Court of Appeal released its decision in Rooney v. Galloway, 2024 BCCA 8, the Court’s most-recent decision in an ongoing defamation action brought by Steven Galloway, a former University of British Columbia (UBC) tenured professor, against a former student who accused him of physical and sexual assault, and numerous other individuals who publicly commented on the allegations. In this decision, Dentons’ Morgan Camley and Jasmine Der secured an important victory, attaining the dismissal of Mr. Galloway’s defamation claim against their client under BC’s anti-SLAPP[1] legislation, the Protection of Public Participation Act (PPPA).[2]
British Columbia’s anti-SLAPP legislation
The PPPA, introduced in 2019, is a law aimed at preventing the use of strategic lawsuits against public participation, or “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.”[3] The goal of a SLAPP is to “intimidate and suppress criticism with the threat of costly litigation,” which “can serve to chill debate on matters of legitimate public interest, resulting in inappropriate censorship and self-censorship.”[4]
Under s. 4 of the PPPA, individuals who have been sued in defamation resulting from an “expression” they made can apply to have the action dismissed if their expression relates to a matter of public interest.[5] The court will refuse to dismiss the action where there are grounds to believe the action has “substantial merit,” the applicant has no valid defence, and the harm suffered by the respondent due to the applicant’s expression is serious enough that the public interest in allowing the defamation action to continue outweighs the public interest in protecting the expression (i.e. freedom of speech).[6] Thus, the PPPA balances the two main competing values at play in the law of defamation: freedom of expression and the protection of reputation.[7]
The Galloway defamation action and recent appeal decision
In November 2015, Steven Galloway was removed from his position as Chair of the UBC Creative Writing Program following allegations of sexual and physical assault made against him by his former graduate student, A.B. Galloway brought an action in defamation against A.B. and numerous other individuals who made public comments repeating A.B.’s allegations (the Defendants). Twelve of the named Defendants applied to have Galloway’s defamation claim against them dismissed under s. 4 of the PPPA (the PPPA Applications). Dentons represents Alicia Elliott, an acclaimed Tuscarora writer and editor, who was named as a Defendant in the defamation claim after commenting on the allegations and UBC’s response to them online.
The judge hearing the PPPA Applications granted Ms. Elliott’s application, and that of one other Defendant, Professor Annabel Lyon, resulting in the dismissal of Mr. Galloway’s defamation action against them.[8] The judge dismissed the PPPA Applications of the remaining Defendants. Regarding Ms. Elliot’s four allegedly defamatory statements, the judge found that one was capable of a defamatory meaning, but the defence of fair comment weighed in Ms. Elliot’s favour, and the remaining statements were not defamatory.[9] Under the defence of fair comment, “[f]air comments made honestly and in good faith on matters of public interest are protected against an action for defamation, unless they are made maliciously.”[10]
The remaining Defendants appealed the dismissal of their PPPA applications, and Mr. Galloway appealed the dismissal of his defamation action against Ms. Elliott and Professor Lyon, among other things. The Court of Appeal held that there was no merit to Mr. Galloway’s claim against Ms. Elliott, and dismissed his appeal.[11] Accordingly, Mr. Galloway’s defamation action against Ms. Elliott was also dismissed.
Key takeaways
SLAPPs are a tactic used by litigious and often well-resourced parties to suppress expression on matters of public interest. The PPPA, BC’s anti-SLAPP law, is a tool that defendants can wield to dismiss unmeritorious defamation claims filed against them. The law in this area is complex and multi-faceted. Dentons’ litigation team has expertise in this area, and can support clients seeking to navigate the law of defamation and the PPPA.
If you have any questions about this decision, or about the PPPA and the law of defamation generally, please reach out to the authors, Morgan Camley and Jasmine Der.
[1] SLAPP stands for “strategic lawsuit against public participation.”
[2] S.B.C. 2019, c. 3 [PPPA].
[3] Rooney v. Galloway, 2024 BCCA 8 at para. 17 [Rooney].
[4] Ibid at paras. 17-18.
[5] PPPA, s. 4(1).
[6] PPPA, s. 4(2).
[7] Rooney at para. 2.
[8] Galloway v A.B, 2021 BCSC 2344.
[9] Ibid at para. 394.
[10] Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed. (Toronto, ON: Thomson Reuters Canada Limited, 2023) at § 1:16.
[11] Rooney at para. 414.
