The British Columbia Court of Appeal will hear an appeal on Tuesday from the main complainant in the Steven Galloway case, over disclosure of documents. Mr. Galloway is suing the woman, a former student in the creative writing program at the University of British Columbia, and more than 20 other people. The woman has applied to have the lawsuit dismissed. After she was cross-examined in her dismissal application, the court ordered her to disclose personal correspondence. She is now appealing that order.
Galloway, the former chair of the UBC program and a bestselling novelist, is suing the woman and more than 20 others, following allegations that, he says, led to him losing his job. His lawsuit argues that he was “defamed by false allegations of rape, sexual assault and physical assault” and that those defamatory statements were personally and professionally devastating.
His accuser, whose identity is protected by a publication ban, is known in court documents as A.B. (In past reporting on the case, she has been commonly referred to as M.C., for Main Complainant).
In response to Galloway’s defamation suit, A.B. and two other defendants filed an application to have the lawsuit dismissed. The application was made under a new law. The Protection of Public Participation Act, also known as anti-SLAPP law, was passed in B.C. in March, 2019, with the aim of protecting people from being silenced on matters of public interest. The Galloway case is an early test of the new legislation (SLAPP stands for strategic lawsuits against public participation).
“The SLAPP legislation lets a judge at a very early stage dismiss defamation claims. So it’s a very powerful piece of legislation and it’s a little bit unusual in the sense that it can dismiss a claim before it’s heard on its merits. The old adage ‘everyone’s entitled to their day in court’ may no longer apply,” says Dan Coles, one of Mr. Galloway’s lawyers. “So the stakes for Professor Galloway are very, very high.”
If successful, the anti-SLAPP application would see Mr. Galloway’s lawsuit dismissed.
SLAPP suits are actions brought by people subject to public criticism (in this case, it would be Mr. Galloway) in an effort to silence or intimidate their critics (in this case, A.B.), who are often of lesser financial means - and thus less able to access or afford legal help. Anti-SLAPP laws are meant to target areas of public interest.
“She reported sexualized violence ... and sexualized violence is a matter of public interest,” says David Wotherspoon, one of A.B.’s lawyers.
During cross-examination last July in the anti-SLAPP matter, another one of Galloway’s lawyers requested production of several documents, which A.B. and the other defendants declined to disclose. Galloway then applied for an order that they produce the documents. He argued that they were necessary in order to address the various defences made by A.B. in her application.
In a ruling made last August by Justice Catherine Murray, A.B. was ordered to disclose most of the documents Galloway was seeking.
They include correspondence dating back to 2015 with then-UBC president Martha Piper. “As the basis for her justification defence A.B. claims that she was instructed by Ms. Piper ... to advise others of the alleged sexual assault by the plaintiff,” Murray’s judgment states. “A.B. has no memory of the correspondence or instruction. The only way the plaintiff can address the validity of this defence is to know the basis of the justification.”
A.B. was also ordered to disclose copies of e-mails in November, 2015, to Chelsea Rooney, a fellow student in the UBC program and one of the people Galloway is suing. “In her affidavit, A.B. states that she told Ms. Rooney, ‘a trusted friend,’ about the alleged sexual assaults. ... In her cross-examination A.B. testified that she does not recall disclosing to Ms. Rooney however at some point she thinks that she was aware that Ms. Rooney told others. She further testified that she does not know if she had email communication with Ms. Rooney regarding [Galloway] in November 2015,” the judgment states.
“When ... someone has sworn in an affidavit that they did something and then when you ask them about it later they don’t know ... then isn’t the easiest answer in the world just to say okay, we’ll check your Gmail account, search ‘Rooney’ and show us what e-mails were sent? This is not labourious. ... Let’s just get to the bottom of it,” Coles said in an interview.
As well, A.B. was instructed to disclose e-mails she exchanged with UBC’s Equity and Inclusion Office and with Annabel Lyon, the novelist and professor who became acting co-chair of the program following Galloway’s suspension.
The judge also ordered A.B. to disclose copies of any documentation she gave to Lyon or Keith Maillard, a professor in the program, prior to an off-campus meeting where the allegations were discussed among faculty – minus Galloway – before he was suspended from his job.
Last October, Justice Susan Griffin ruled that A.B. could appeal the court order to disclose these documents.
The case goes back to November, 2015, when Galloway was suspended because of “serious allegations” made against him – something UBC announced publicly. An independent investigator, retired B.C. Supreme Court Judge Mary Ellen Boyd, was brought in to look at the case and concluded on a balance of probabilities that Galloway had not committed sexual assault, the most serious allegation against him. She did find that he had had an inappropriate affair with A.B. and did not notify the program about the relationship, and that he made inappropriate sexual comments and advances toward her, according to excerpts of the report provided by A.B.’s lawyers.
After Boyd delivered her report, Galloway was fired for an “irreparable breach of ... trust.”
UBC later paid Galloway more than $240,000 in damages after it was found that the university had violated his privacy rights and damaged his reputation.
Following that decision, Galloway launched his defamation suit in October, 2018.
In addition to the defendants named above, he is also suing people who posted about the case on social media and a woman who reviewed an art exhibition A.B. mounted in New York.
The defamation trial is currently scheduled for June, 2020. But the anti-SLAPP matter must be dealt with before the trial can proceed.