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Former UBC professor’s rape defamation lawsuit can proceed, court says

Novelist and former University of British Columbia professor Steven Galloway has won a years-long battle to have his defamation lawsuit proceed against a woman who says he sexually assaulted her, an allegation he denies.

The case at the B.C. Court of Appeal was a high-profile test of laws in B.C., Ontario and Quebec that aim to protect people from so-called SLAPP suits, or strategic lawsuits against public participation.

The unanimous decision released Wednesday upholds an earlier ruling by a judge who rejected the argument that all claims of sexual assault are protected.

Such a finding would rule out any legal consequences for publicly calling someone a rapist with “no obligation ever to prove the statement was true,” B.C. Supreme Court judge Elaine Adair said in her December 2021 decision that allowed Galloway’s lawsuit to proceed against certain defendants, including his accuser.

Galloway said he is “relieved and thankful” that the lawsuit will be moving to trial.

“All I have asked for is the chance to prove in a court of law that the allegations made against me, and repeated as truth by the defendants in this case, are false,” he said in the statement provided by his lawyer Dan Burnett.

Galloway said the lawsuit is about “false allegations” and defamation, and not about the reporting of sexual assault.

“I sincerely hope no one who has experienced sexual assault views this case as a barrier to reporting,” he said.

A statement from Joanna Birenbaum, a lawyer for Galloway’s accuser, said they are “extremely concerned about the implications of this judgment for survivors of sexual violence and in particular for students, staff and faculty of universities and colleges, who may feel less safe about coming forward with concerns.”

The accuser — whose name is covered by a publication ban and is known as A.B. — and her lawyers are reviewing the decision and considering seeking leave to appeal to the Supreme Court of Canada, Birenbaum said.

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The lawyer cited a case in which Canada’s top court found that “eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society” and we “must do better.”

“If survivors are afraid to talk about experiences of sexual assault, it is hard to imagine how things will ever get better,” Birenbaum said.

Galloway filed his defamation lawsuit in 2018, claiming his reputation had been ruined by A.B.’s allegations that he sexually and physically assaulted her while she was a graduate student more than a decade ago.

In addition to A.B., Galloway’s claim also names several supporters who repeated her allegations.

The defendants had appealed to have the legal action thrown out under the province’s Protection of Public Participation Act, which aims to protect people from lawsuits that would silence them on matters of public interest.

But Adair rejected arguments that allowing the lawsuit would stifle reporting of sexual offences, and the Appeal Court judges upheld the ruling.

In their written reasons, the panel of three Appeal Court judges said Adair was “well-aware of the public interest and the importance of encouraging reporting of sexual offences,” while at the same time recognizing “there cannot be an absolute protection (that is) regardless of the circumstances or the truth.”

B.C.’s legislation “requires a judge to weigh the expression against the harm and determine where on the scale the public interest protection lies,” the judges wrote.

“The chambers judge did this weighing, and we do not see any basis to interfere with her conclusions.”

The judges also echoed a decision from a separate case in Ontario, saying “(unlike) SLAPP suits, which reek of the plaintiff’s improper motives … this litigation smells of a genuine controversy (and it) should be tried on its merits.”

Requiring comments to be “tailored” to avoid defaming someone “does not quash public debate,” said the decision from justices Elizabeth Bennett, Anne MacKenzie and Peter Voith.

Galloway is suing over statements the defendants made outside of the university’s sexual assault reporting process, often on social media, his statement said.

Galloway is the author of several novels, including “The Cellist of Sarajevo,” which was longlisted for the 2008 Scotiabank Giller Prize.

He was chair of the University of B.C.’s creative writing program before he was suspended in November 2015 and fired the following June after an investigation into what the school described as serious allegations of misconduct.

Adair’s 2021 decision said A.B. and Galloway had a “personal relationship” between 2011 and 2013, of which the “true nature” was “hotly” contested.

Galloway described the relationship as a “consensual affair,” while A.B. said it was abusive and non-consensual, the judge wrote.

“I will not be deciding who is right. The court is not being called upon to make that determination at this time,” she wrote.

In December 2015, the University of B.C. asked former B.C. Supreme Court judge Mary Ellen Boyd to investigate complaints against Galloway. Her report, submitted in April 2016, has not been made public.

In a statement issued in November 2016, shortly after he received the Boyd report, Galloway said the retired judge had found on a balance of probabilities that he had not committed sexual assault.

In 2018, Galloway was awarded $167,000 in damages after an arbitrator found the university’s communications about the situation breached his privacy rights, then he was given $60,000 more over further privacy breaches and ongoing harm to his reputation.

None of the allegations in Galloway’s lawsuit, nor those of his accuser, have been tested in court.

In her 2021 ruling, Adair said allowing Galloway’s claims to proceed does not presuppose a particular outcome before a trial judge.

“Rather, what has happened is that Mr. Galloway will have the opportunity to present his claims for adjudication in a trial,” she said.


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