Various legislatures have recently sought to control the use of litigation to suppress public debate and this has been termed anti-SLAPP legislation. Each of these statutes expressly urge timeliness on the need to shutdown attempts to suppress debate. The recent case of Steven Galloway is a demonstration of the common experience that legislative requests for timeliness run up against the reefs and shoals of delays in the Court systems. Not only can this frustrate the legislative goal of a swift response, but more generally it contributes to the perception that the judicial branch of government tolerates delays even where the legislative branch has placed firm demands for timely judicial resolution.
The case involving Steven Galloway is illustrative. He is the author of the Cellist of Sarajevo and a former tenured associate professor at UBC who was suspended with pay in response to sexual assault allegations. An investigation was carried out from December to April 2016 by Mary Ellen Boyd, a former Justice of the Supreme Court of British Columbia. The following June, UBC fired Galloway.
In October 2018, Galloway sued a large number of people for libel, including not only his accuser but many others who repeated or passed on the allegations. An application was made under the SLAPP legislation in BC to stay the proceeding.
Walking very slowly to today and Galloway is still fighting to clear his name, having taken jobs as labourer to support himself. In 2018, Douglas Todd for the Vancouver Sun reported, “UBC was forced to pay Galloway $167,000 for breaching his privacy rights and damaging his reputation.” Since then, Galloway has been in a five-year legal battle for the right to take his accusers to trial for libel. Last week the B.C. Court of Appeal gave him the right to take eight of his accusers to trial. The most notable of these eight are A.B. (a former UBC student), Annabel Lyon, “the current head of the creative writing department that Galloway once led,” and writing professor at UBC Keith Maillard
Delay can be brutal and particularly so in cases of alleged sexual assault. It can maintain an unfair state of affairs during the trial and can affect the fairness of the conclusion (See Blog: “What You Gonna Do About Me.”). If the accuser is telling the truth, a delayed case is delayed justice for the victim and may discourage other victims of sexual assault from bringing cases to light. However, if the accuser is lying, the reputation of the accused can be unjustly ruined.
The brief BC legislation has several features intended to expedite applications to dismiss lawsuits on the basis they will suppress debate on matters of public importance. The Act specifies that a defendant can immediately move to dismiss a proceeding; that the procedure should be expeditious and based on affidavits, and that an application should be heard quickly and any appeal heard and disposed of expeditiously.
So why did the application to dismiss the Galloway case take so long? As noted by Douglas Todd the purpose of anti-SLAPP laws is to “stop powerful people from abusing their privilege to, in effect, “slap” critics with a vexatious defamation suit.” Instead, they can become costly and long “drawn-out defence[s] against such claims.” In practice, Todd continues, “the laws have become an expensive way to determine whose rights matter more.”
The Galloway case also illustrates how the dynamics of party-driven litigation can interfere with systemic solutions. The proceeding included many defendants, and hence every hearing doubtless had challenges being scheduled. Adjudging the merits of the claims even on a summary basis was made difficult by the number of parties and claims. The appeal took too long, but overlapped with an unrelated decision in an anti-SLAPP case scheduled to be heard by the SCC and that might have driven some delay in the appeal. Certainly, delays in the BC Court of Appeal seem to stem from party issues, rather than the Court’s calendar given the near-term public availability of hearing dates. Increased priority handling was likely necessary to improve the timeliness of the judgments—but that is the hardest thing for a system to do when a case is complicated. How to identify and prioritise challenging cases is one of the necessary conversations we need to have.
