Former UBC professor allowed to continue defamation suit against former student who accused him of sexual assault, court rules

Their challenge was heard by B.C. Supreme Court Justice Elaine Adair over nine days in April.

Adair’s decision, released Thursday, is 242 pages long and contains unique analysis about comments made by each of the 11 defendants. The question fundamental to determining whether the cases would be thrown out was a balance of public interests: does the public interest in protecting the statements made by Galloways’s accusers outweigh the public interest in allowing him recourse to potentially restore his reputation?

Adair concluded that, even though there is public interest in protecting the speech of individuals reporting sexual assault, it does not outweigh Galloway’s right to attempt to restore his reputation through defamation suits.

“In my opinion, the reputational harm to Mr. Galloway from being called a rapist and someone who has perpetrated criminal acts is likely serious and sustained. Litigation appears to be the only available avenue for possible rehabilitation of Mr. Galloway’s reputation,” Adair wrote. “I say ‘possible’ because the ultimate outcome of litigation of Mr. Galloway’s claims is unknown. An impartial court will decide.”

Galloway, the author of the award-winning novel “The Cellist of Sarajevo” and former head of the University of British Columbia’s creative writing program, was accused in 2015 by a former student of sexual harassment and sexual assault.

Though never criminally charged, he was later suspended, then terminated by the university. A labour arbitrator later awarded him more than $200,000 in damages after finding his privacy rights had been violated when the university publicized his suspension and termination.

In the aftermath, Galloway filed a defamation suit against his accuser, known in court documents as “AB,” along with two dozen others, including two professors, alleging they had “recklessly repeated” AB’s accusations to others in the university community and on the internet, damaging his personal and professional reputation.

Eleven of the defendants subsequently filed anti-Strategic Litigation Against Public Participation or anti-SLAPP applications, seeking to have the lawsuit dismissed on the grounds of free expression on matters of public interest. They cited legislation passed in B.C. in 2019 known as the Protection of Public Participation Act. (A similar act was passed in Ontario in 2015).

David Wotherspoon, the lawyer for AB, told the Star after Adair’s decision was released that one of their reasons for trying to get the lawsuit against AB thrown out was that there are already many reasons why sexual violence is under-reported in Canada.

“A big part of our goal is to try to have the SLAPP legislation interpreted in a way that reduces the concern around reprisals (for people who report sexual violence),” Wotherspoon said. “At least in terms of this decision, we were unsuccessful. So we’re disappointed.”

Adair wrote that, although it is important to encourage reporting of sexual assault, she did not believe this was an adequate reason to dismiss a civil suit against one person accusing another of a serious crime.

“It is beyond argument that there is a very significant public interest in encouraging reporting of sexual assault,” Adair wrote. “I do not agree that giving greater weight to the public interest in allowing Mr. Galloway’s claims to proceed means that the justice system does not value the reporting of sexual assault claims. Allowing Mr. Galloway’s claims to proceed provides A.B. with at least the opportunity for complete — and public — vindication.”

Wotherspoon said he highlighted this paragraph in the decision, saying he thought it “miscast the issue being faced by victims of sexual assault.”

“For many people who are victims of sexual assault they’re not looking for vindication,” he said. “They’re looking to move on.”

In a statement sent to the Star, Daniel Burnett, the lawyer for Steven Galloway, said the judge rejected “nearly all arguments by the defendants,” finding there were “reasonable grounds” for Galloway to argue that he was libeled, arguments that will ultimately be decided by a trial judge.

Adair’s decision dismissed some of the lawsuits on the grounds that they were not filed within the time period required by the statute of limitations.

“I can say at this point is that the plaintiff disagrees on those,” Burnett wrote.

Adair’s decision came down to balancing two issues of public importance. She found that the harm to Galloway from the many accusations of sexual assault against him, made by AB and repeated by the others, was severe.

“Every statement, and every post on Twitter, capable of bearing the meaning that Mr. Galloway is a rapist and sexually assaulted A.B., is defamatory and contributes (often in the thousands of viewers) to maintaining and repeating the allegations of sexual assault and criminal misconduct against him,” the justice wrote.

“The harm likely to be or to have been suffered by Mr. Galloway lies closer to the high end of the protection-deserving spectrum. This means that the public interest in allowing Mr. Galloway’s claim to proceed is also closer to the high end. On the other hand, I have concluded that the public interest in protecting A.B. No 2 lies somewhere between the middle and the high end.

A.B. No. 2 refers to one of two instances examined by Adair in which Galloway alleged AB libeled him.

“In that light, I conclude that the public interest in Mr. Galloway continuing the proceeding in respect of A.B. No. 2 outweighs the public interest in protecting that expression.”

With files from Douglas Quan