Lawyers for a woman being sued for defamation by author Steven Galloway say ordering her to produce correspondence with UBC officials, friends and others could be a deterrent to future reporting of sexual assaults.
But a lawyer for Mr. Galloway said in court on Tuesday that those documents are needed to clear up inconsistencies and gaps that arose last year when the woman was cross-examined in an application she has made to have the defamation case dismissed.
“The search for truth remains at the heart of the justice system. It’s what we’re about," Dan Burnett told a three-judge panel at the BAlso.C. Court of Appeal. The court was hearing the woman’s appeal of the order to produce the documents.
The woman, identified in the case as A.B., has alleged she was sexually assaulted and harassed by Mr. Galloway, a bestselling novelist and former professor and chair of the creative writing program at the University of British Columbia, where she was a student. Mr. Galloway lost his job after her complaint.
Mr. Galloway’s lawsuit says statements the woman made about him were defamatory and were repeated by others.
A statement of facts Mr. Galloway’s lawyers presented on Tuesday in court said: “A.B. claims the rape occurred in May of 2011 in his UBC office, although she does not actually recall a rape, claiming she was unconscious. She attended a public lecture by a well-known writer shortly afterward, and she did not reach out to professionals or anyone else.”
Mr. Galloway was suspended in November, 2015, after A.B. shared her allegations with UBC officials. In an investigation conducted for the university, former B.C. Supreme Court justice Mary Ellen Boyd concluded on a balance of probabilities that Mr. Galloway had not committed sexual assault. She found that he had an inappropriate affair with A.B.
In June, 2016, UBC fired Mr. Galloway for an “irreparable breach of ... trust.” It later paid Mr. Galloway more than $240,000 in damages after an arbitrator found that the university had violated his privacy rights and damaged his reputation.
After that decision, Mr. Galloway sued A.B. and more than 20 others for making and repeating the allegations – including on social media, in an art show produced by A.B., and in a review of that art show. In the suit, Mr. Galloway says his writing and academic careers and reputation have been destroyed.
A.B. applied last year to have the lawsuit dismissed under B.C.’s new Protection of Public Participation Act (PPPA), which is intended to protect individuals and small groups from being legally muzzled in defamation suits by more powerful individuals and corporations.
Mr. Galloway’s lawyers say he should have his day in court.
“There are few allegations more grave than rape,” the filing states. “If there is any hope of a person’s reputation ever recovering, vindication of the true facts by a court is vital. A.B. alleged rape against the respondent. It led to repetition both verbally and on the internet by people who have no knowledge of whether a rape occurred. The respondent vigorously denies it.”
The request for documents came during cross-examination in the application to have the lawsuit dismissed, when A.B. couldn’t recall some details or gave answers that Mr. Galloway’s lawyers say were different from what she said in the affidavit she filed seeking dismissal. Court heard on Tuesday that this included the year in which she said the sexual assault in his office took place – 2011 or 2012; as well as the number of people with whom she shared the allegation.
“The cross examination revealed that A.B.’s affidavit claiming she had told only a tiny group of people in confidence was false,” reads Mr. Galloway’s filing. “She admitted knowing they were going to repeat it to others. She admitted telling numerous others. She could not recall details. Her e-mails with these people at the very time of these conversations go to the heart of her motion and affidavit. These are the kind of [documents requested] and refused on the cross-examination.”
A judge later ruled that she had to produce a number of documents.
Court also heard on Tuesday that the defamation lawsuit is unlikely to begin as scheduled in June due to the proceedings in the application to dismiss it.
In court, A.B.'s lawyers expressed deep concern over some of the arguments from Mr. Galloway’s team.
“He is effectively calling into question the veracity of the reports made by A.B. on one of a number of what are called rape myths," said David Wotherspoon, one of A.B.'s lawyers. “He is criticizing her for not reporting at the time of the events – and I note without a hint of irony that he is now suing her for reporting. But also for not quickly reaching out to professionals. That is a debunked rape myth which suggests that if the allegation were true [she] would have reached out to professionals right away.”
Mr. Wotherspoon told the court that such arguments deter victims from disclosing.
“The PPPA should be interpreted in a way that encourages rather than discourages the reporting of sexualized violence," he said.
The panel reserved judgment.
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