B.C.'s top court gives green light for author Steven Galloway's defamation claim to continue

B.C.'s top court says author Steven Galloway can finally put his defamation claims before a judge, nearly six years after suing a graduate student who accused him of sexual assault.

In a lengthy ruling this week, B.C.'s Court of Appeal largely sided with a lower court judge who rejected a bid by a woman known as A.B., and more than a dozen of her supporters, to dismiss the case against them as an attempt to silence critics.

In reaching a decision, the appeal court judges reinstated some elements of Galloway's claim dismissed by the B.C. Supreme Court judge — handing the best-selling author of The Cellist of Sarajevo a partial victory in his own cross-appeal of the lower court ruling.

"These defendants have affected my life and the life of my family in every conceivable way," Galloway said in an emailed statement.

"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."

A contested relationship

The appeal court ruling is 185 pages long; the B.C. Supreme Court ruling was almost twice that length. And A.B.'s lawyer indicated Thursday that she will seek leave to appeal the latest ruling to the Supreme Court of Canada.

Yet arguments on the merits of the claims themselves have not even begun.

A passerby, unrelated to the story, is pictured at the University of British Columbia. Steven Galloway headed the university's creative writing department until he was fired in 2016. (Ben Nelms/CBC)

According to the Supreme Court decision, Galloway and A.B. had a "personal relationship" with each other from 2011 to 2013 while she was attending the creative writing program that he headed until he was fired in 2016.

"Mr. Galloway has publicly described it as a consensual affair," the decision says.

"A.B. has described it as 'an ongoing abusive relationship' and 'traumatic bonding,' and not consensual at all."

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A report commissioned by UBC was unable to find — on a balance of probabilities — that a sexual assault happened.

The report concluded only that Galloway had engaged in inappropriate behaviour with a student.

Galloway sued A.B. and her supporters — including UBC professors, students and social media activists — in the wake of a public firestorm that ensued when A.B.'s accusations went public.

He claimed they implied that he raped, sexually assaulted and physically assaulted her.

'Mr. Galloway deserves to have his day in court'

The legal arguments so far have centred around a bid by the defendants to have Galloway's claim dismissed as a strategic lawsuit against public participation — or SLAPP.

In her ruling, B.C. Supreme Court Justice Elaine Adair stressed that she was not pre-judging the outcome of Galloway's claim. Instead, she was tasked with determining if the case had merit and whether the harm the defendants might suffer would outweigh the public interest in allowing the case to continue.

Arguments over whether or not Steven Galloway should be able to proceed with a defamation claim have wound their way through B.C. Supreme Court and Appeal Court for more than five years. (Ben Nelms/CBC)

"I have concluded merely that, based on the record and the legal principles that apply, the claims I have identified should not be summarily screened out at this early stage, and Mr. Galloway deserves to have his day in court to potentially vindicate his reputation," Adair wrote.

"Moreover, the fact that, based on my conclusions, Mr. Galloway is allowed to continue with the claims I have identified does not presuppose a particular outcome with respect to any of them. Rather, what has happened is that Mr. Galloway will have the opportunity to present his claims for adjudication in a trial."

In their appeal, the defendants claimed Adair erred in concluding that Galloway's claims had "substantial merit" and that the defence of fair comment was not valid.

They also claimed she was wrong in finding that malice undermined their defences and in concluding "the public interest in allowing the proceeding to continue outweighed the public interest in protecting the expressions."

'Unnecessary and inappropriate at this stage'

The appeal court ruling sets out the "two competing values at the core of defamation law" as "freedom of expression and the protection of reputation."

In reviewing Adair's ruling, the appeal court also noted that they were "not prejudging the ultimate merits of Mr. Galloway's claim or the defences that have been raised."

A.B.'s lawyers have argued that allowing Steven Galloway's defamation claims to proceed could put a chill on people who want to advocate publicly on behalf of sexual assault victims. (Mihai Surdu/Shutterstock)

To that end, the appeal court judges largely sided with Adair, although they reversed her decision to dismiss a number of particular claims Galloway initially made against A.B. and one of the other defendants.

The decision takes pains to emphasize the years of evidence and arguments that have already taken up the court's time — all over an application of law intended to cut down on unnecessary litigation.

"The parameters of anti-SLAPP litigation should be limited in scope in order to avoid costly, unmeritorious, and protracted litigation, which is ironically what the [SLAPP] procedure is meant to protect against," the judges wrote.

"Conducting a full-blown analysis of the underlying claim, as some of the appellants advocated here, is to engage in the 'deep dive' that [another judge] explicitly recognized is unnecessary and inappropriate at this stage."

Galloway's lawyer, Daniel Burnett, echoed that sentiment.

"The action was filed over 5 years ago, and has been held up far too long in this anti-SLAPP process," he wrote in an email.

"This is a serious defamation action that could have been to trial already if were not for these delays."

'This lawsuit is about false allegations'

A.B. has argued that allowing Galloway's lawsuit to proceed could have far-reaching impacts for anyone who wants to publicly identify themselves as a 'survivor' of sexual assault and to engage in activism and advocacy.

"It is an unfortunate judgment that leaves us extremely concerned about the impact on 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," A.B.'s lawyer David Wotherspoon said in a statement.

In his statement, Galloway said he was not suing anyone in relation to statements made through the policies and procedures UBC has in place to encourage reporting of sexual violence.

"This lawsuit is about false allegations; it is about defamation and not about the reporting of sexual assault," he said.

"I sincerely hope no one who has experienced sexual assault views this case as a barrier to reporting."