Three defendants in Steven Galloway defamation case must hand over correspondence, court rules
Credit to Author: David Carrigg| Date: Mon, 26 Aug 2019 13:10:31 +0000
The former head of the University of B.C.’s creative writing program, who was fired under a cloud of sexual assault allegations, has won the right to see all correspondence between former UBC boss Martha Piper and the person who accused him of the assault.
Last week, Supreme Court of B.C. Justice Catherine Murray ruled that three people named in Steven Galloway’s defamation case must provide information to back up their affidavits — including copies of correspondence between A.B., who is at the centre of the case having accused Galloway of sexual assault, and former UBC president Martha Piper — because A.B. claimed she was told by Piper to advise others of the alleged sexual assault.
The case goes back to November 2015, when UBC stated that serious allegations had been made against Galloway and that he had been suspended. An investigation headed by former Supreme Court of B.C. justice Mary Ellen Boyd into the case concluded that Galloway had a consensual affair with A.B., who was one of his students. He was fired in June 2016, due to an “irreparable breach of trust.” UBC later paid Galloway $167,000 in damages.
In October 2018, Galloway commenced action to sue 25 people whom he believed defamed him during and following his controversial firing — including two UBC professors. In the words of Justice Murray, Galloway alleges “that he was defamed by false allegations of rape, sexual assaults and physical assaults made by A.B. and repeated by the other defendants on the internet.”
Murray’s ruling explained that this defamation case involved a new law — the Protection of Public Participation Act — that was enacted on March 25, 2019, and applies retroactively to May 15, 2018.
The goal of the law is to protect people from lawsuits brought to silence or punish a critic — known as Strategic Lawsuits Against Public Participation, or SLAPP suits. According to the new act, people accused of defamation can apply to have the claim against them dismissed and both parties are given the right to cross-examine each other about their affidavits. It also states that the court may require discovery, inspection or production of a document related to the affidavit.
In May 2019, three of the defendants — A.B., Theresa Smalec and Glynnis Kirchmeier — applied to have the case dismissed under the new law. Once the dismissal application was filed, the defamation was essentially stayed until the dismissal application was resolved.
As a result, the following month counsel for Galloway cross-examined the three defendants and asked for “information and/or production of documents,” which were refused.
A judge has ruled that because defendants in the Steven Galloway defamation case said former UBC president Martha Piper told them to tell others details of an alleged sexual assault, they must provide correspondence from her related to the case.
“In the course of those cross-examinations counsel for the plaintiff made a series of requests for information and/or production of documents, that were refused by the defendants,” Murray wrote. “The issue to be decided on this application is whether the plaintiff is entitled to request information and documentation on a cross-examination conducted under s. 9(5) of the Act, and if so, what disclosure is he entitled to.”
Murray said this was the first time a court in B.C. had considered those questions, because the legislation was so new.
“While I appreciate that the aim of the Act is to provide defendants in SLAPP actions a timely and expedient process to have unmeritorious actions dismissed, the flip side cannot be to deprive the plaintiff with a valid cause of action the ability to proceed,” Murray wrote. “Section 4 (of the new Act) places a burden on the plaintiff. An unusually onerous burden of proving not only that they have a case but that the defendants do not. To have to do that in a vacuum would be unjust.”
As a result, Murray made a series of disclosure orders to A.B., Smalec and Kirchmeier. Among these, A.B. must disclose copies of correspondence with former UBC boss Martha Piper because A.B. claimed in an affidavit that part of the justification defence was that A.B. was told by Piper to advise others of the alleged sexual assault by Galloway. Murray wrote: “A.B. has no memory of the correspondence or instruction. The only way the plaintiff can address the validity of this defence is to know the basis of the justification.”
A.B. was also ordered to hand over correspondence between A.B. and the owner of an art gallery over the wording of a write-up that accompanied promotion of an art exhibition as well as correspondence with the Equity and Inclusion Office at UBC.
Smalec, a U.S.-based academic, must produce emails between herself and A.B., including all attachments, as well as a current screenshot of a Facebook post that links to an article with likes and comments related to her affidavit, plus a copy of all tweets made by Smalec about Galloway.
Kirchmeier must produce a current screen shot of a February 2018 tweet showing all interactions with it, including tweets and retweets and comments from others.
They must also disclose all email correspondence between Kirchmeier and A.B., including that regarding Galloway, sexual assault, #UBCaccountable, assault and rape. Regarding this disclosure, Justice Murray wrote: “As Ms. Kirchmeier’s sole link with A.B. is about her disclosures regarding the plaintiff, all correspondence between them is relevant. In her affidavit Ms. Kirchmeier attests to her belief in A.B. She pleads the defence of fair comment. The plaintiff must know the basis for this belief in order to address this defence and the issue of malice.”
Murray ruled that all the disclosure must be made as soon as possible. A Go Fund Me page to raise money to cover the legal costs of the defendants in the Galloway case has so far raised $73,000.
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