A B.C. Supreme Court judge has awarded author Steven Galloway access to e-mails between a woman who accused him of sexual assault and staff at the University of British Columbia in a test of a provincial law intended to protect freedom of expression.
Mr. Galloway, who is the former chair of the university’s creative writing department, filed lawsuits against the woman and two dozen others last October, alleging he was defamed by false allegations of sexual and physical assaults made by the woman and repeated by others.
The woman and two others applied to have the lawsuit thrown out under the province’s Protection of Public Participation Act that came into effect in March, and aims to protect critics on matters of public interest from lawsuits intended to silence or punish them.
Although the defamation action is paused until the dismissal application is dealt with by the court, Mr. Galloway had requested access to further documentation that he argued he needed to defend his case against dismissal.
In her ruling released Friday, Justice Catherine Murray says she believes it’s the first time a court in British Columbia has been asked to rule on whether a plaintiff such Mr. Galloway is entitled to request documentation on the cross-examination allowed under the new act and, if so, to what disclosure he’s entitled.
She ordered the release of e-mails to the university’s president and a professor, and documentation the woman provided to back up her allegation, as well as screenshots of tweets and Facebook posts made by the other two women who joined the dismissal application, and other materials.
“I am advised that this is a matter of first impression; no court in British Columbia has yet considered this question,” Justice Murray says in the ruling.
The NDP promised during the 2017 election campaign that it would protect people from strategic lawsuits against public participation, often referred to as SLAPP suits.
In introducing the legislation, Attorney-General David Eby said the act would prevent the use of lawsuits to silence critics with unfair or costly legal action.
Advocates for the new law included former B.C. premier Ujjal Dosanjh, former attorney-general Wally Oppal, the Union of B.C. Municipalities and numerous civil-rights and environmental organizations. It was modelled after the Protection of Public Participation Act adopted four years ago in Ontario.
“The intent behind this legislation is to really avoid the situation where someone’s put up a blog post or they’ve expressed themselves in a newspaper where they’ve provided information in public and they get a threatening letter that says they are going to be sued for defamation unless you immediately retract it,” Mr. Eby said in May, 2018.
The three women brought the dismissal application in May and were cross-examined in June. In the course of the cross-examinations, Mr. Galloway’s attorneys requested further information or documents, which the women refused.
The women argued that cross-examination does not include the right to documentation access, and characterized Mr. Galloway’s request as “broad and sweeping.”
In her decision, Justice Murray writes that while she appreciates the aim of the act is to provide defendants in SLAPP actions a quick process for dismissing unworthy actions, the flip side cannot be to deprive a plaintiff with a valid cause of action the ability to proceed.
“There is a clear tension in the act between having a quick summary dismissal application heard with less than full evidence and the dismissal of the plaintiff’s action. This application highlights the difficulty with it in some cases,” Justice Murray writes.
There’s an “unusually onerous” burden on the plaintiff to prove not only that they have a case, but also that the defendants do not, she writes.
“To have to do that in a vacuum would be unjust,” she says.
That said, disclosure can only relate to the dismissal application, she writes.
Justice Murray denied Mr. Galloway access to some of the other documentation, including copies of e-mails the woman sent to another professor, and the names of everyone to whom she disclosed that Mr. Galloway had allegedly raped or sexually assaulted her.
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