Galloway v. A.B.

2021 BCSC 2344 Galloway v. A.B.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Galloway v. A.B., 2021 BCSC 2344 Date: 20211202 Docket: S1811588 Registry: Vancouver Between: Steven Galloway Plaintiff And: A.B., Keith Maillard, Annabel Lyon, Chelsea Rooney, Alicia Elliott, Brit Bachmann, Mandi Gray, Theresa Smalec, Glynnis Kirchmeier, Kiera Anderson, Emily Kellogg, Mada Chouain, Adeline York, Arielle Rombough, John Bell, Bethany Killen, Dana Kagis, Wendel Schwab, Marcelle Kosman, Alasdair Rees, Suziebedbug, John Doe, Jane Doe, Jane Roe and Jill Roe Defendants Restriction on Publication: A publication ban has been imposed by an order of this Court restricting the publication, broadcast or transmission in any way of information or evidence that could identify the defendant referred to in these proceedings as "A.B." This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Adair Reasons for Judgment Counsel for the Plaintiff: D.W. Burnett, Q.C. D. Coles Counsel for the Defendant A.B.: D. Wotherspoon J. Birenbaum S. Chang Counsel for the Defendants Keith Maillard and Annabel Lyon: K. Zimmer C. Catlin Counsel for the Defendant Chelsea Rooney: S. Whitmore L. Guest J. Babad Counsel for the Defendants Alicia Elliott and Brit Bachmann: S. Nelligan Counsel for the Defendant Mandi Gray and Glynnis Kirchmeier: T. Dickson A. Laskin L. Edwards Counsel for the Defendant

Theresa Smalec: D. Reid Counsel for the Defendant Kiera Anderson: K. Sheriff C. McLeod Counsel for the Defendant Arielle Rombough: S. Ivany S. Jenkins P. Brausch Counsel for the Defendant Marcelle Kosman: E. MacKinnon S. Chaster K. Twa No other appearances Place and Date of Hearing (by MS Teams): Vancouver, B.C. April 6-9, 12-16 and June 2-4, 2021 Written Submissions received: July 26, 2021 Place and Date of Judgment: Vancouver, B.C. December 2, 2021 Table of Contents Paragraph Range 1. Introduction [1] - [16] 2. The parties involved in the PPPA applications [17] - [45] (a) Steven Galloway [19] - [19] (b) A.B. [20] - [20] (c) Keith Maillard [21] - [22] (d) Annabel Lyon [23] - [23] (e) Chelsea Rooney [24] - [25] (f) Mandi Gray [26] - [27] (g) Alicia Elliott [28] - [29] (h) Glynnis Kirchmeier [30] - [34] (i) Brit Bachmann [35] - [38] (j) Theresa Smalec [39] - [39] (k) Kiera Anderson [40] - [42] (l) Arielle Rombough [43] - [43] (m) Marcelle Kosman [44] - [45] 3. Test under the PPPA [46] - [66] 4. The application record [67] - [74] 5. Background and outline of events [75] - [316] (a) 2011-2013: A.B. is a graduate student and Mr. Galloway is a professor in (and later Chair of) UBC's Creative Writing Program [78] - [86] (b) 2014: A.B. returns to Ontario and comes across essays about "gendered violence" in the Canadian literary and academic communities [87] - [88] (c) Late summer and

early fall 2015: A.B. begins corresponding with UBC Professor Paul Krause; later A.B. and Mandi Gray are introduced to one another; A.B. and CBC producer Ronna Syed also make contact [89] - [96] (d) End of October 2015: A.B. tells Ms. Gray Mr. Galloway had raped and strangled her; Ms. Kirchmeier is involved in "School of Secrets" [97] - [98] (e) November 11 and 12, 2015: A.B. sends e-mail to Professor Maillard and Mr. Galloway, forwarding an open letter from Ms. Kirchmeier and mentioning the Fifth Estate program; Mr. Galloway leaves voice-mail messages for A.B; A.B. tells Professor Maillard she was sexually assaulted and physically assaulted by Mr. Galloway [99] - [112] (f) November 13, 2015: A.B. begins the process of making a formal report to UBC about Mr. Galloway; around this time, A.B. tells Ronna Syed Mr. Galloway raped her [113] - [121] (g) Professor Maillard and Ms. Rooney discuss A.B.'s report that other women had experienced inappropriate behaviour from Mr. Galloway [122] - [124] (h) November 14 and 15, 2015: Professor Maillard tells Professor Lyon what A.B. has told him; a meeting of Creative Writing Department faculty (excluding Mr. Galloway) is scheduled for November 15; A.B. sends further communications to Professor Maillard and Professor Lyon in preparation for and to present at the meeting and sends e-mail to Ms. Rooney [125] - [143] (i) The November Meeting and

Policy 3 [144] - [163] (j) Professor Lyon contacts Dean Averill; the Dean suspends Mr. Galloway; the Dean's office sends a memo to all faculty, staff and students of the Creative Writing Program, which is picked up by the local and national media [164] - [171] (k) Ms. Rooney contacts individuals concerning complaints about Mr. Galloway [172] - [180] (l) UBC engages the Honourable Mary Ellen Boyd to investigate the allegations against Mr. Galloway; the UBCFA brings a grievance on Mr. Galloway's behalf arising out of his suspension [181] - [186] (m) In early 2016, and in connection with the Boyd Investigation, Mr. Galloway receives details of A.B.'s claims, notes of the November Meeting and other information [187] - [190] (n) The Boyd Report is submitted to the Dean on April 25, 2016 [191] - [209] (o) The report of the UBC Sexual Assault Panel [210] - [213] (p) June and July 2016: UBC terminates Mr. Galloway's employment; media reports; the UBCFA brings a second grievance on Mr. Galloway's behalf [214] - [220] (q) Fall 2016: public disclosure that the "serious allegations" about Mr. Galloway included sexual assault; media discussion of UBC's handling of matters [221] - [227] (r) November 2016: "UBC Accountable" and "UBC Unaccountable" [228] - [241] (s) November and December 2016: Mr. Galloway publishes a "Public Apology," followed by more media coverage and social media

debate [242] - [253] (t) 2017: Social media, conferences and #MeToo [254] - [262] (u) The 2018 Golden Globes and Margaret Atwood [263] - [272] (v) The public debate continues [273] - [281] (w) June and July 2018 - Mr. Galloway receives an award of damages in the grievance arbitration against UBC; media coverage follows, including an article written by Mr. Galloway [282] - [290] (x) Summer 2018 - A.B.'s Art Exhibit and the Smalec Article [291] - [309] (y) Fall 2018: a second arbitration award is made in Mr. Galloway's favour; Professor Maillard's "Burn" essay [310] - [314] (z) Mr. Galloway files this action on October 26, 2018 [315] - [316] 6. Mr. Galloway's claims and the defences in play - summary [317] - [318] 7. Basic legal principles applicable to the claims and defences in play [319] - [392] (a) Defamation claims [319] - [349] (b) Defences in play [350] - [392] (i) Defamation defences [350] - [376] (ii) Defence relying on the Limitation Act [377] - [379] (iii) The Weber Defence and the University Act, s. 69(1) [380] - [392] 8. Are there grounds to believe Mr. Galloway's claims have substantial merit? - s. 4(2)(a)(i) [393] - [504] (a) Introduction [393] - [413] (b) The claims against A.B. [414] - [423] (c) The claims against Professor Maillard [424] - [431] (d) The claims against Professor Lyon [432] - [436] (e) The claims against Chelsea Rooney [437] - [451] (f) The claims

against Mandi Gray [452] - [458] (g) The claims against Alicia Elliott [459] - [467] (h) The claim against Glynnis Kirchmeier [468] - [472] (i) The claims against Brit Bachmann [473] - [479] (j) The claim against Theresa Smalec [480] - [484] (k) The claims against Kiera Anderson [485] - [489] (l) The claim against Arielle Rombough [490] - [494] (m) The claims against Marcelle Kosman [495] - [501] (n) Summary [502] - [504] 9. Has Mr. Galloway shown grounds to believe that an Applicant has no valid defence? - s. 4(2)(a)(ii) [505] - [626] (a) Introduction [505] - [507] (b) A.B. No. 1, Maillard No. 1, Lyon No. 1 and No. 2 and Rooney No. 1: the Limitation defence; other defences [508] - [548] (c) A.B. No. 2 - fair comment [549] - [551] (d) Maillard Nos. 2 and 3 - fair comment and qualified privilege (response to attack) [552] - [561] (e) Rooney Nos. 2-7 - justification and fair comment; Nos. 3-7 - consent [562] - [571] (f) Gray Nos. 1-3 and 6-7 - fair comment and responsible communication [572] - [585] (g) Elliott No 3 - justification and fair comment [586] - [592] (h) Kirchmeier No. 1 - fair comment [593] - [595] (i) Bachmann Nos. 1 and 2 - fair comment [596] - [598] (j) Smalec No. 1 - fair comment [599] - [608] (k) Anderson Nos. 1 and 2 - fair comment and responsible communication [609] - [613] (l) Rombough No. 1 - justification [614] - [616] (m) Kosman No. 1 - justification and

fair comment; Kosman No. 2 - fair comment [617] - [623] (n) Summary [624] - [626] 10. Has Mr. Galloway shown that the harm likely to have been suffered by him as a result of an Applicant's expression outweighs the public interest in protecting that expression? [627] - [787] (a) Introduction [627] - [631] (b) Harm and the public interest in permitting Mr. Galloway to continue [632] - [655] (c) The public interest in protecting an Applicant's expression [656] - [786] (i) Summary of the Applicants' arguments [656] - [671] (ii) Other factors: silencing critics, chill on future expression; Dr. Keller's expert report [672] - [701] (iii) Distinguishing between the subject matter of public interest and the actual expression [702] - [718] (iv) A.B. No. 2 [719] - [730] (v) Maillard No. 2 and No. 3 [731] - [734] (vi) Rooney Nos. 2-7 [735] - [739] (vii) Gray Nos. 1-3 and Nos. 6-7 [740] - [746] (viii) Kirchmeier No. 1 [747] - [754] (ix) Bachmann Nos. 1 and 2 [755] - [761] (x) Smalec No. 1 [762] - [769] (xi) Anderson Nos. 1 and 2 [770] - [774] (xii) Rombough No. 1 [775] - [780] (xiii) Kosman Nos. 1 and 2 [781] - [786] (d) Summary on weighing of the public interest [787] - [787] 11. Summary and disposition [788] - [792] Appendix "A" - Defamatory statements alleged to have been made by A.B. Appendix "B" - Defamatory statements alleged to have been made by Professor Maillard Appendix "C" -

Defamatory statements alleged to have been made by Professor Lyon Appendix "D" - Defamatory statements alleged to have been made by Chelsea Rooney Appendix "E" - Defamatory statements alleged to have been made by Mandi Gray Appendix "F" - Defamatory statements alleged to have been made by Alicia Elliott Appendix "G" - Defamatory statements alleged to have been made by Glynnis Kirchmeier Appendix "H" - Defamatory statements alleged to have been made by Brit Bachmann Appendix "I" - Defamatory statements alleged to have been made by Teresa Smalec Appendix "J" - Defamatory statements alleged to have been made by Kiera Anderson Appendix "K" - Defamatory statement alleged to have been made by Arielle Rombough Appendix "L" - Defamatory statements alleged to have been made by Marcelle Kosman 1. Introduction [1] This is a defamation action. The plaintiff, Steven Galloway, a writer and novelist, was, at one time, a tenured professor and the Chair of the Creative Writing Program at the University of British Columbia. He was removed from that position in November 2015, after what were publicly described as "serious allegations" were made against him. He never returned. UBC terminated his employment in June 2016. Mr. Galloway has not had any further books published. He says that, because of the events giving rise to this lawsuit, he is crippled in his writing and unpublishable. As of the

hearing before me, Mr. Galloway's income was a small fraction of what it had been in 2015. [2] In this action, Mr. Galloway asserts that the defendants made statements about him that meant and were understood to mean that he had raped, sexually assaulted and physically assaulted the defendant A.B. [3] Between 2011 and 2014, A.B. attended UBC as a graduate student in the Creative Writing Program and she worked as a teaching assistant. A.B. is a few years older than Mr. Galloway. When A.B. was attending UBC, she was married. Mr. Galloway was also married. [4] Between 2011 and 2013, A.B. and Mr. Galloway had a personal relationship with one another. However, the true nature of that relationship is hotly contested. Mr. Galloway has publicly described it as a consensual affair. A.B. has described it as "an ongoing abusive relationship" and "traumatic bonding," and not consensual at all. I will not be deciding who is right. The court is not being called upon to make that determination at this time. Moreover, at this still-preliminary stage of the litigation, it has not been established that A.B. is a victim of sexual assault or that Mr. Galloway has been wrongly accused. I will not be resolving those issues either. [5] Mr. Galloway has sworn under oath the statements made about him - that he raped, sexually assaulted and physically assaulted A.B. - are false, and sworn that he did

not rape, sexually assault or physically assault A.B. Mr. Galloway says that the defendants' statements that he raped, sexually assaulted or physically assaulted A.B. are defamatory. [6] Mr. Galloway says that, since November 2015, many terrible and cruel statements have been made and published about him. However, Mr. Galloway says he is suing only over statements that would be understood by a reasonable person to mean that he had raped, sexually assaulted and physically assaulted A.B, in short, that he is guilty of criminal misconduct. Mr. Galloway says that, rather than casting too wide a net in this action, he has instead cast a very narrow one, addressing only the most grave and damaging statements made about him. [7] Mr. Galloway says that, as a result of the defendants' statements, beginning with statements made by A.B. in November 2015, his career, reputation and life, both as an author and generally, have been left ruined. Mr. Galloway says that occasional attempts to rehabilitate his reputation have been met with more attacks, especially on social media such as Twitter. [8] A.B. and most of the other named defendants are defending against Mr. Galloway's claims. They advance a variety of defences, including, in A.B.'s case, justification, or, in other words, truth. All of them say that Mr. Galloway's claims must be dismissed on the merits. [9] However, in advance of any

investigation or determination of the merits of Mr. Galloway's claims, twelve of the defendants, including A.B., have applied to have Mr. Galloway's claims against them dismissed. Their applications - eleven in total - are brought pursuant to the Protection of Public Participation Act, S.B.C. 2019, c. 3 (the "PPPA"). I will refer to this group of defendant-applicants collectively as the "Applicants," and I will refer to their applications as the PPPA Applications. [10] As I will discuss in more detail below, the PPPA creates a multi-step process for determining whether an action should proceed. In that process, the person resisting dismissal - here, the plaintiff, Mr. Galloway - has the burden to satisfy the court that there are grounds to believe the claim has substantial merit and the defendant has no valid defence. Provided that burden is satisfied, the analysis moves to the final step, which has been described as the "crux of the analysis." This step requires weighing the public interest in allowing meritorious lawsuits to proceed against the public interest in protecting expression on matters of public interest. The burden at this step is on the plaintiff to satisfy the court that the public interest in allowing the lawsuit to proceed outweighs the public interest in protecting the expression. [11] All of the Applicants say that, even if Mr. Galloway can persuade the court

that his claims have substantial merit and that there are no valid defences, his claims should and must fail on the final weighing of the public interest. [12] In particular, A.B. (supported by other Applicants) says that the PPPA Applications engage both freedom of expression and how society - the courts in particular - respond to sexualized violence. A.B. says that these Applications create an opportunity to advance rights of expression by victims of sexualized violence who report the wrongs that have been done to them. A.B. says that dismissal of Mr. Galloway's claims will expressly acknowledge the value in protecting the rights of victims to report sexualized violence, and will (consistent with statements from the Supreme Court of Canada) encourage, rather than discourage, reporting. A.B. says that the deleterious impact of Mr. Galloway's claims on expression by victims of sexualized violence is extreme, and that, if Mr. Galloway's claims are allowed to proceed, sexual assault survivors will be silenced even more. A.B. says further that reporting of gender-based violence must be protected, and that victims must be able to come forward without fear that they will be sued for defamation. A.B. argues that the public interest therefore weighs very heavily in favour of dismissal of Mr. Galloway's claims, because the chill on victims of sexual violence coming forward will be

profound if the proceeding is allowed to continue. [13] On the other hand, Mr. Galloway says that the overarching position of the submissions of the Applicants amounts to the absurd proposition that, in order to engage in important public discussions and to protect victims of sexual violence and encourage reporting of such violence, the Applicants must be free to publish defamatory statements - that he is a rapist and guilty of criminal conduct - about him, without consequence. [14] In these Reasons, I will first describe the parties involved in the PPPA Applications. I will then describe the test that applies under the PPPA, and comment briefly on the record before me. I will then set out the basic background in, essentially, a chronological review of events. [15] Next, in a short section, I will summarize Mr. Galloway's claims and the defences in play. The details are set out in the Appendices. In the body of these Reasons, when I refer to a statement that Mr. Galloway claims is defamatory, it will appear in italics and be underlined (for example A.B. No. 1). FolIowing the summary, I will then set out the basic legal principles that apply to the claims and the defences in play. [16] In the following sections, I will then set out my analysis and conclusions on whether there are grounds to believe that Mr. Galloway's claims have substantial merit and there are no valid defences, and my analysis and conclusions on the weighing of the public interest.

2. The parties involved in the PPPA Applications [17] In this section, I will briefly describe the parties involved in the PPPA Applications. For the most part, I will rely on the descriptions provided in the parties' affidavit evidence, and take those at face value. Where individuals hold a doctorate, I will refer to those individuals as "Dr." Because of the publication ban respecting A.B., her description is necessarily abbreviated. [18] Other than A.B., Professor Maillard, Professor Lyon and Chelsea Rooney, none of the Applicants has or had any connection with Mr. Galloway. Professors Maillard and Lyon, Ms. Rooney, Ms. Gray and Ms. Kirchmeier each have had a personal connection to and relationship with A.B. A.B. and Ms. Smalec communicated briefly with one another concerning Ms. Smalec's review of A.B's Art Exhibit (described below). Otherwise, none of the remaining Applicants has any connection with A.B. (a) Steven Galloway [19] Steven Galloway is now in his mid-40s. His first novel was published in 2000, and, in 2000, he began teaching in the Creative Writing Program at UBC (where he had been a student). He became Chair in 2013, replacing Professor Maillard. As of November 2015, Mr. Galloway had published four novels, both award-winning and best-selling. He had also written a fifth novel, which, however, was never published. (b) A.B. [20] A.B. is a writer and practising

artist. As of the hearing of the PPPA Applications, she was in her late 40s. She has two Master of Fine Arts degrees, one in photography and one (from UBC) in creative writing. Before attending UBC, A.B. held tenure-track teaching positions at two universities, and she had received a number of awards and grants, particularly in photography. A.B. attended UBC as an undergraduate in the 2010-2011 academic year, and was admitted to the Master of Fine Arts Creative Writing program in 2011. A.B. remained at UBC until 2014, when she left B.C. and moved to Ontario. (c) Keith Maillard [21] Keith Maillard is now in his late 70s. He is a professor in UBC's Creative Writing Program, and (as of October 2020) he had been teaching at UBC since about 1989. He was chair of the Creative Writing Program between 2008 and 2013, and, in 2012, he became A.B.'s thesis supervisor. According to Professor Maillard, in 2015, he was the "equity officer" (also known as the "faculty advisor for grievances") for the Creative Writing Program, and he had about 20 years of experience in that role. Professor Maillard explained that he had received training from UBC over the years for his role as equity officer. He also explained that "equity officer" was a position within the Creative Writing Department, and that it was not a position attached to UBC's Equity and Inclusion Office (the "Equity Office"). [22]

Professor Maillard and Mr. Galloway have known one another since Mr. Galloway was an undergraduate in the Creative Writing Program. Professor Maillard says that, before the events in November 2015, he held Mr. Galloway in high regard, and had a very longstanding and close professional and personal relationship with him. That relationship ended in November 2015. (d) Annabel Lyon [23] Annabel Lyon is a published author and an Associate Professor in the Creative Writing Program at UBC. She has been a professor in the Program since 2012, and, before that, performed adjunct work for the Program from time to time. She was the "second reader" of A.B.'s thesis. She has known Mr. Galloway since about 1998, when they were both students in the Creative Writing Program, and, before the events in November 2015, they had a close friendship. In November 2015, Professor Lyon was the Graduate Advisor for the Creative Writing Program. (e) Chelsea Rooney [24] Chelsea Rooney is an author. As of October 2020, she was working on her second book (her first book having been published in 2014), and she was also working as a writer at a non-profit science centre. Ms. Rooney completed undergraduate studies in creative writing at UBC in 2007, and graduated with a Master of Fine Arts degree from the Creative Writing Program in 2012. Ms. Rooney has known Mr. Galloway since 2005, when she enrolled in a

fiction class taught by him. Mr. Galloway was also, initially, her thesis advisor in the Master's program. However, beginning in 2010, at least from Ms. Rooney's perspective, she and Mr. Galloway had a strained and very uncomfortable relationship. Professor Maillard then became Ms. Rooney's thesis advisor. [25] Since graduating in 2012, Ms. Rooney has not attended UBC as a student, nor has she been employed by UBC. (f) Mandi Gray [26] As of November 2020, Mandi Gray was a doctoral candidate at York University in the Department of Sociology. Ms. Gray planned to defend her dissertation in February 2021. Ms. Gray explained that, since 2015, her academic research and writing has primarily focussed on how sexual violence impacts survivors, and the societal, institutional and other barriers faced by survivors in holding their assailants and involved institutions accountable. Ms. Gray explained that, from 2008 to 2013, and before graduate school, she worked with women involved in the criminal justice system. She had a range of roles, including as a volunteer tutor at the Winnipeg Remand Centre, an outreach worker and a provincial reintegration worker at the Elizabeth Fry Society of Manitoba. Ms. Gray explained that almost all of the women she worked with had been the victims of sexual violence, and she was "struck by how profoundly those experiences negatively impacted the

trajectories of those women's lives." [27] Ms. Gray's experience motivated her to pursue her PhD in sociology, initially with a focus on the institutional violence experienced by imprisoned women. Ms. Gray explained that, in 2015, her academic and activist work shifted to campus sexual violence. Then, since 2017, her research has focused on defamation lawsuits against people who disclose or support victims of sexual violence. Ms. Gray described her dissertation, titled "Cease/Desist or Cease/Resist? Sexual Violence and Civil Suits," as a critical examination of the experiences of survivors of sexual violence who are sued by the men they reported for sexual assault. Ms. Gray explained that, in addition to her dissertation, she has published a book chapter, published peer-reviewed and other articles, and presented her research on sexual violence at academic conferences across North America. Ms. Gray has also been invited to provide guest lectures on sexual violence at multiple universities. (g) Alicia Elliott [28] Alicia Elliott is an award-winning Mohawk author from the Six Nations of the Grand River in southern Ontario. Her writing has been published in various Canadian media outlets, including the CBC, The Globe and Mail (the "Globe"), Maclean's and Flare, among others. Ms. Elliott writes about current events, analysing government, public and media reactions to specific

news-worthy events to determine what they mean about collective societal values. Her essay "A Mind Spread Out on the Ground" won Gold at the National Magazine Awards in 2017. Another essay, "On Seeing and Being Seen: Writing With Empathy," was nominated for a National Magazine Award in 2018. [29] Ms. Elliott was the 2017-2018 Geoffrey and Margaret Andrew Fellow at UBC, and was chosen to receive the RBC Taylor Emerging Writer Prize in 2018. Her short story "Unearth" was selected to appear in Best American Short Stories 2018. In March 2019, Ms. Elliott's first book, "A Mind Spread Out on the Ground," was released. Ms. Elliott described the book as a collection of essays on trauma, the legacy of colonialism, oppression and racism in North America. In the book, Ms. Elliott also wrote about her own sexual assault. In addition, she wrote about her own sexual assault as a contributor to the anthology "Whatever Gets You Through: Twelve Survivors on Life After Sexual Assault," edited by Stacey May Fowles and Jen Sookfong Lee and released in April 2019. (h) Glynnis Kirchmeier [30] Glynnis Kirchmeier is a U.S. citizen and works as a paralegal in Berkeley, California. She earned a Bachelor of Arts degree in History from the University of Puget Sound in Tacoma, Washington in 2010. From September 2011 to November 2013, Ms. Kirchmeier was a graduate student in History at UBC, and she received

a Master of Arts in History from UBC in 2013. She returned to the U.S. in October 2014. She has never worked in publishing or creative writing, or any similar field. [31] Ms. Kirchmeier explained that, in November 2015, she was one of many UBC graduate students who participated in a program aired by CBC's "Fifth Estate" called "School of Secrets." Ms. Kirchmeier explained that the program had been "pitched" to her and other participants as a documentary about how educational institutions in Canada mishandle reports of sexual violence against students (similar in scope to the 2015 American documentary "The Hunting Ground"). "School of Secrets" was broadcast on November 23, 2015. Ms. Kirchmeier explained that, as aired, the program mostly focused on UBC's refusal to expel Dmitry Mordvinov, a male History student who likely raped or sexually harassed (or both) several female graduate students at UBC. [32] Ms. Kirchmeier explained that on November 22, 2015, she announced at a press conference her intention to file a human rights complaint against UBC for its mishandling of the Mordvinov matter. Ms. Kirchmeier explained that Mr. Galloway had been removed from his position in the Creative Writing Department in the week before her press conference. She explained that she had never met Mr. Galloway and did not know of him by name prior to his removal. Ms. Kirchmeier's human rights

complaint was filed in March 2016, and, as of May 2019, the proceedings relating to that complaint were ongoing. [33] Ms. Kirchmeier explained that after November 2015, she became widely sought after as a critic of UBC in particular and for comment on university mishandling of sexual assault in general. Ms. Kirchmeier explained that, in the face of public criticism after "School of Secrets," UBC promised to create a sexual misconduct policy. She explained that she provided comments to her MLA and participated in the public consultation surrounding enactment of the Sexual Violence and Misconduct Policy Act, S.B.C. 2016, c.

23. Ms. Kirchmeier explained that she participated in the creation of UBC's new policy, by sitting with drafters, attending conferences organized by UBC, circulating policy analysis letters, and criticizing specifics on social media. Ms. Kirchmeier explained that UBC incorporated some of Ms. Kirchmeier's critiques into the final version, Policy 131 ("Sexual Assault and other Sexual Misconduct"). Another aspect of her involvement was co-authoring (with Ms. Rooney) an opinion piece published in the Vancouver Sun in June 2017, titled "Opinion: Monitoring sexual abuse helps prevent it." [34] Ms. Kirchmeier explained that, starting in the spring of 2016, she developed a personal relationship with A.B. They had about 10 to 15 phone calls from 2016 until Kirchmeier No. 1 was posted in February 2018. According to Ms. Kirchmeier, during those phone calls (and among other things) she and A.B. discussed A.B.'s fear of Mr. Galloway, and A.B.'s assertion that Mr. Galloway had choked and raped her. As Ms. Kirchmeier recalled, A.B. referred to herself as a "survivor." (i) Brit Bachmann [35] Brit Bachmann is a multidisciplinary artist and writer. Ms. Bachmann earned a Bachelor of Fine Arts degree from the University of British Columbia - Okanagan in 2013, with a focus on drawing and sculpture. As of October 2020, Ms. Bachmann was employed as the executive director of a non-profit, artist-run

organization dedicated to the promotion of experimental contemporary art that addresses social, political, cultural and critical issues. [36] In addition, from September 2015 to October 2018, Ms. Bachmann worked on UBC's Vancouver campus as the editor-in-chief of "Discorder" Magazine. Ms. Bachmann explained that, as editor-in-chief, she spearheaded a critical rebrand of the magazine to include more community activism, social justice, creative writing and visual art, alongside musical journalism. According to Ms. Bachmann, she "prioritized Indigenous, queer, POC (people of colour) and women's voices," and highlighted issues around harm reduction, sexual assault, racism, accountability, labour and housing. Ms. Bachmann both edited pieces written by others and wrote pieces herself for publication in Discorder. Ms. Bachmann explained that, through her work at Discorder, she was exposed to the Vancouver underground music scene, and many people in the community approached her with stories of abuse. She explained that, after hearing these stories, she began to research and write about responses to allegations of sexual assault and predatory behaviour in the arts community, particularly the music scene, and how society acknowledges survivors and demands accountability from abusers. [37] Ms. Bachmann says (Affidavit No. 1) that: 13. My interest in how society holds abusers accountable

also stems from personal experience. I am a victim of an unreported sexual assault where an imbalanced power dynamic led to an abuse of authority and, ultimately, a physical violation. Through my editing and writing, I have encouraged open dialogue about abuses of power, sexual assault, and accountability to reduce the stigma and shame that victims can experience, and encourage collective healing. In addition to providing resources for the community, this work has helped me deal with my own sexual assault trauma. [38] Ms. Bachmann also says (Affidavit No. 1): 14. The allegations made by AB against the Plaintiff in November 2015, UBC's response to those allegations, and the UBC Accountable website were constant topics of conversation in the offices of Discorder and CiTR 101.9FM during my time there as Editor-in-Chief. Not only were our offices located on the UBC Vancouver campus, but many of the writers who had contributed to Discorder were students enrolled in the UBC Creative Writing program. I had many conversations with students about how UBC's handling of the matter was affecting the quality of their education and their personal mental health. As a result, this matter was actively on my mind. (j) Theresa Smalec [39] Teresa Smalec is an associate professor of Communication Arts and Sciences at Bronx Community College of the City University of New York, where she has been

employed since 2009. She achieved tenure in 2016. In addition to undergraduate and graduate degrees in English, Ms. Smalec has a PhD in Performance Studies. Although a Canadian citizen, Ms. Smalec has lived and worked in the U.S. for many years. Ms. Smalec explained that she regularly writes and publishes about art and its social implications, and from 2010 to 2016, when she was working to earn tenure, she published ten articles and reviews on those topics. Ms. Smalec explained that, since she began writing for publication in roughly 1996, she has authored close to forty scholarly works analyzing various art forms and their sociopolitical implications. (k) Kiera Anderson [40] Kiera Anderson received a B.A. in Photography from the University of East London in London, U.K. in 2010, an M.A. in Fine Art from Camberwell College of Art in London, U.K. in 2012, and, in 2019, a PhD in Art, Media and Visual Studies from the University of Dundee. Dr. Anderson's dissertation was titled "Memories of Struggle - Representations of Political Violence in the highlands of Scotland and the Pacific Northwest of the United States," and chronicled the experience of survivors of sexual abuse and assault within radical environmental organizations. [41] Dr. Anderson explained (Affidavit No. 1): 6. I started researching sexual assault in activist organizations in 2014. In 2014 and 2015 I conducted interviews and did archival research into feminist call-outs in the Pacific Northwest between 2000 to 2005. Throughout my research, I came across a pattern of institutional efforts to suppress survivor experiences within these organizations. Even if survivors were believed, they were silenced and often pushed out of the organization.

7. As a result of my research, I have published several articles, been invited to speak at roundtables and academic conferences, and facilitated workshops on sexual violence and accountability. . . .

9. On November 19, 2015, I gave a talk at Simon Fraser University sponsored by the Centre for Policy Studies on Culture & Communities. The talk, entitled "Pieces Back Together: Community Memory of Sexual Violence in Radical Environmental Organizations in the Pacific Northwest of USA," explored the roots of what many now dub 'call-out culture.' . . . . . .

11. From January to August 2016, and May 2017 to August 2018 I was a Visiting Scholar at Simon Fraser University's Department of Gender, Sexuality, and Women's Studies.

12. I attended the Canadian Sociological Association Conference at the University of Calgary from May 30 to June 3, 2016 where I presented my paper, "'Don't You (Forget About Me'): Lifting up the Voices of Rape Survivors in Social Movements." The paper outlined how we can re-energize social movements by prioritising the voices of survivors of interpersonal violence. . . .

13. In June 2016, my article, "When We Are Silent We Are Still Afraid, We Speak Up to Survive: An Interview with Julie," was published in the Earth First! Journal Collective. The article featured an interview with Julie Henry, an activist with Earth First!, who came forward with an experience of being sexually assaulted by a well-known animal and earth liberation activist. . . . . . .

19. In October, 2018, I organized a panel at the 2018 Oral History Association meeting in Montreal, Canada. The panel was entitled "#MeToo: Oral Histories of Sexual Violence and Harassment." The panel explored how interviews exploring experiences of harassment and abuse, particularly within institutions and organizations, can shed new light on contemporary efforts to achieve justice for survivors. . . . [42] Dr. Anderson explained further (Affidavit No. 1): 22. . . . I learned of A.B.'s allegations against the Plaintiff while a Visiting Scholar at Simon Fraser University, and became aware of the UBC Accountable Letters upon returning to Simon Fraser University as a Sessional Instructor in and around January 2017. . . .

25. My interest in the #UBCAccountable matter arose from my research into call-outs and institutional efforts to suppress survivors' experiences and silence those who come forward with allegations of interpersonal violence. The themes being discussed in both my social and academic circles were similar to those that I was exploring in my doctoral work. (l) Arielle Rombough [43] By way of background, Arielle Rombough says (Affidavit No. 1): 2. I am a survivor of sexual assault. As a survivor, I know the challenges survivors face in coming forward. For that reason, I am devoted to supporting other survivors and raising awareness to end rape culture through consent-focused volunteer work.

3. In 2015, I co-founded an organization called Consent and Respect in Theatre (CART), which is an informal volunteer group of theatre artists, administrators, and community partners that was created in response to concerns about sexualized violence, sexual harassment, gender inequality, and issues of consent in Calgary's theatre community. . . . . . .

6. I also volunteer with survivors of domestic violence through a Calgary-based organization called Sagesse Domestic Violence Prevention Society.

7. I have participated in and moderated panel discussions on workplace harassment in the theatre industry and domestic violence. (m) Marcelle Kosman [44] Marcelle Kosman is employed as an instructor and research assistant in English and Film Studies at the University of Alberta in Edmonton. In September 2020, she completed her PhD at the University of Alberta in English, with a focus on Canadian women's writing. Dr. Julie Rak was her supervisor. [45] Dr. Kosman explained (Affidavit No. 1): 7. For a long time, I have been interested in discussing and interrogating societal and institutional responses to allegations of sexual violence by women. During my undergraduate degree at McGill University, I volunteered with the Crisis Helpline at the Sexual Assault Centre of the McGill Students' Society (SACOMSS) and served as the organization's External Coordinator during the 2006- 2007 academic year. I also volunteered with a project called the "Rez Project" in its pilot year during my undergraduate degree. The Rez Project, which is now 15 years old and a compulsory part of living in McGill Residences, is a workshop for new students living in Residence about issues related to consent, sexuality, and gender identity. More recently, after moving to Edmonton for my PhD and witnessing the city's culture of hostility toward women, I wrote an article addressing issues of anti-feminism and gender-based violence against women in Edmonton.

8. As a woman, as an academic, and as a feminist, I strongly believe that we must publicly discuss the pervasiveness of sexual violence and assault experienced by women and girls and that we as a society must interrogate how we respond to such incidences. I have used Twitter as a tool for public discourse to engage in these topics and to participate in debates and discussions on these issues.

3. Test under the PPPA [46] The PPPA Applications have been brought pursuant to s. 4, which provides: 4(1) In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that (a) the proceeding arises from an expression made by the applicant, and (b) the expression relates to a matter of public interest. (2) If the applicant satisfies the court that the proceeding arises from an expression referred to in subsection (1), the court must make a dismissal order unless the respondent satisfies the court that (a) there are grounds to believe that (i) the proceeding has substantial merit, and (ii) the applicant has no valid defence in the proceeding, and (b) the harm likely to have been or to be suffered by the respondent as a result of the applicant's expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression. [47] In 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 and Bent v. Platnick, 2020 SCC 23, the Supreme Court of Canada provided authoritative guidance on how the legislation should be interpreted and applied. In addition, since the hearing concluded on June 4, 2021, the Court of Appeal has published two decisions addressing applications under the PPPA: Neufeld v. Hansman, 2021 BCCA 222; and Hobbs v.

Warner, 2021 BCCA 290. [48] In Hobbs, Goepel J.A. (for the court), in his very helpful summary, describes some of the background to the PPPA. The legislation came into effect on March 25, 2019, and, as Goepel J.A. explains: [6] The PPPA was a legislative response to what have been referred to as strategic lawsuits against public participation ("SLAPPs"). SLAPPs are lawsuits initiated against individuals or organizations that speak out or take a position on issues of public interest--with the intention being to silence or otherwise deter that party from participating in public affairs. To mitigate SLAPPs harmful effects, Ontario, British Columbia, and Quebec have enacted laws commonly referred to as anti-SLAPP legislation. [7] In November 2015, the Ontario Protection of Public Participation Act, 2015, S.O. 2015, c. 23 came into force. This amended the Courts of Justice Act, R.S.O. 1990, c. C. 43 [CJA] by introducing in relevant parts ss. 137.1 to 137.5. [8] The PPPA is modelled on and is nearly identical to the Ontario legislation. Subsequent to the decision in the case at bar, the Supreme Court of Canada, in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 [Pointes] and Bent v. Platnick, 2020 SCC 23, provided authoritative guidance as to how the legislation should be interpreted. [49] Here, and in relation to all of the PPPA Applications, there is no dispute

that the Applicants have satisfied the conditions in s. 4(1). I will therefore focus on the requirements under s. 4(2), where Mr. Galloway has the burden to satisfy the court. [50] "Grounds to believe" (s. 4(2)(a)) requires that there be a basis in the record and the law - taking into account the stage of litigation at which the application is brought - for finding that the underlying proceeding has substantial merit and that there is no valid defence: Pointes, at para. 39. [51] "Substantial merit" (s. 4(2)(a)(i)) does not mean "likely to succeed." Rather, the claim must be sufficiently strong such that terminating the action at this preliminary stage would undermine the legislature's objective of ensuring that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to vindicate that claim (Pointes, at para. 48). Côté J. explained in Pointes, at para. 49: [49] . . . for an underlying proceeding to have "substantial merit", it must have a real prospect of success - in other words, a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff. In context with "grounds to believe", this means that the motion judge needs to be satisfied that there is a basis in the record and the law - taking into account the stage of the proceeding - for drawing such a conclusion. This requires that the

claim be legally tenable and supported by evidence that is reasonably capable of belief. [52] The "substantial merit" standard is less stringent than a strong prima facie case, or the test for summary judgment. However, "substantial merit" is more demanding than a claim having some chance of success, and more demanding than the claim having a reasonable prospect of success: Pointes, at para. 50. [53] "Substantial merit" calls for an assessment of the evidentiary basis for the claim, which is why the claim must be supported by evidence that is reasonably capable of belief. A claim that has been merely "nudged" over the line of having some chance of success will not be sufficient (Pointes, at para. 50): A real prospect of success means that the plaintiff's success is more than a possibility; it requires more than an arguable case. As I said in the preceding paragraph, a real prospect of success requires that the claim have a prospect of success that, while not amounting to a demonstrated likelihood of success, tends to weigh more in favour of the plaintiff. For a judge undertaking this inquiry, it is critical to recall that a [PPPA application] is not a determinative adjudication of the merits of the proceeding and, rather than having to be established on a balance of probabilities, substantial merit is instead tempered by a "grounds to believe" burden. [54] On the other hand,

any basis in the record and the law will be sufficient. By definition, "a basis" will exist if there is a single basis in the record and the law to support a finding of substantial merit and the absence of a valid defence. That basis must of course be legally tenable and reasonably capable of belief. See Bent, at para. 88. [55] With respect to the weighing and assessment of evidence on a PPPA application, the hearing judge should (Pointes, at para. 52): . . . engage in only limited weighing of the evidence and should defer ultimate assessments of credibility and other questions requiring a deep dive into the evidence to a later stage, where judicial powers of inquiry are broader and pleadings more fully developed. This is not to say that the motion judge should take the motion evidence at face value or that bald allegations are sufficient; again, the judge should engage in limited weighing and assessment of the evidence adduced. This might also include a preliminary assessment of credibility -- indeed, the legislative scheme allows limited cross-examination of affiants, which suggests that the legislature contemplated the potential for conflicts in the evidence that would have to be resolved by the motion judge. [56] With respect to determining whether there are "grounds to believe" a defendant has "no valid defence," the defendant must first put "in play" the defences it

intends to present. The plaintiff must then show there are grounds to believe that none of the defences is valid: Pointes, paras. 56-57. As with the substantial merit test, the judge must determine a defence's validity on a limited record at an early stage in the litigation. The judge must engage in a limited assessment of the evidence in determining a defence's validity: Hobbs, at para. 14. [57] In Pointes, Côté J. explained, at paras. 58-59 [italics in original]: [58] The word no is absolute, and the corollary is that if there is any defence that is valid, then the plaintiff has not met its burden and the underlying claim should be dismissed. As with the substantial merit prong, the motion judge here must make a determination of validity on a limited record at an early stage in the litigation process -- accordingly, this context should be taken into account in assessing whether a defence is valid. The motion judge must therefore be able to engage in a limited assessment of the evidence in determining the validity of the defence. [59] I interpret the query on validity under [s. 4(2)(a)(ii)] as mirroring the query on substantial merit under [s. 4(2)(a)(i)]. . . . [T]he motion judge must first determine whether the plaintiff's underlying claim is legally tenable and supported by evidence that is reasonably capable of belief such that the claim can be said to have a real prospect

of success, and must then determine whether the plaintiff has shown that the defence, or defences, put in play are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success. In other words, "substantial merit" and "no valid defence" should be seen as constituent parts of an overall assessment of the prospect of success of the underlying claim. [58] The plaintiff must show that the defences in play do not tend to weigh more in favour of the defendant, and that there are "grounds to believe" - in other words, a basis in the record and in the law, taking into account the stage of the litigation - that the defences in play have "no real prospect of success": Bent, at paras. 101, 103 and 138. [59] The final stage of the analysis is found at s. 4(2)(b). Côté J. describes this as the "core" or "crux" of the analysis: see Pointes, at paras. 18, 61-62. As Côté J. also observed (Pointes, at para. 63), if the bar is set too high at the s. 4(2)(a) stage, then the application judge will never reach s. 4(2)(b), and this cannot possibly be what the legislature contemplated. [60] This final stage of the analysis requires weighing the public interest in allowing meritorious lawsuits to proceed against the public interest in protecting expression on matters of public interest: Pointes, at para. 81. [61] The

"weighing" under s. 4(2)(b) is substantively different than "balancing." Weighing the public interest in freedom of expression and public participation against the public interest in vindicating a meritorious claim is a theme that runs through the legislative history of the PPPA: Pointes, at para 63. One consideration must outweigh the other: see Pointes, paras. 65-66. [62] As a prerequisite to the "weighing" under s. 4(2)(b), the plaintiff must first show: (i) the existence of harm; and (ii) causation, namely, that the harm was suffered as a result of the defendant's expression: Pointes, at para.

68. No definitive determination of harm or causation is required at this stage. Instead, the plaintiff must simply provide evidence for the hearing judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link: Bent, at para. 154 (citing Pointes, at para. 71). [63] In defamation actions, general damages are presumed, and this alone is sufficient to constitute harm: Hobbs, at paras. 81 and 84. However, the magnitude of the harm will be important in assessing whether the harm is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression: Bent, at para.

144. Reputational harm is eminently relevant to the harm inquiry under s. 4(2)(b): Bent, at para.

146. Thus, not only must monetary harm be considered in determining whether the harm is sufficiently serious, but also reputational harm and intangibles such as shame, disgrace and embarrassment: Bent, at paras. 148-149. [64] Once the existence of harm is established, the next question is whether the harm was suffered as a result of the defendant's expression: Bent, at paras. 150-151. In Pointes, Côté J. explained, at para. 72: [72] I add that, naturally, evidence of a causal link between the expression and the harm will be especially important where there may be sources other than the defendant's expression that may have caused the plaintiff harm (C.A. reasons, at para. 92). Causation is not, however, an all-or-nothing proposition, in the sense that while the causal chain between the defendant's expression and the harm suffered by the plaintiff may be weaker for some elements of the harm suffered, it might nonetheless be strong for other elements. This is a case-by-case inquiry undertaken by the motion judge. [65] Provided harm has been established and shown to be causally related to the expression, s. 4(2)(b) then requires that the harm and the corresponding public interest in permitting the proceeding to continue be weighed against the public interest in protecting the expression: Pointes, at para.

73. Côté J. explained, at paras. 74-75 [italics in original]: [74] . . . Under [s. 4(2)(b)] . . . ., the legislature expressly makes the public interest relevant to specific goals: permitting the proceeding to continue and protecting the impugned expression. Therefore, not just any matter of public interest will be relevant. Instead, the quality of the expression, and the motivation behind it, are relevant here. [75] Indeed, "a statement that contains deliberate falsehoods [or] gratuitous personal attacks . . . may still be an expression that relates to a matter of public interest. However, the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies, [or] vitriol" [citation omitted]. [66] Section 4(2)(b) allows the judge to scrutinize "what is really going on" in a particular case before them. In effect, the section allows the judge to assess how allowing parties to vindicate their rights through a lawsuit - a fundamental value in its own right - affects, in turn, freedom of expression and its corresponding influence on public discourse and participation in a pluralistic democracy: Bent, at para. 139.

4. The application record [67] In any hearing involving 11 applications by 12 defendants, particularly in a defamation action where each statement or publication creates a separate cause of action, and where the stakes are very high, the hearing judge must anticipate a substantial record. [68] As noted above, the Supreme Court of Canada has cautioned that, on the hearing of an application under the PPPA, the court is not to take a "deep dive" into the evidence. Nevertheless, the evidentiary record is important both because of the "grounds to believe" requirement in s. 4(2)(a), and for the weighing that must be done under s. 4(2)(b). [69] The record filed on the PPPA Applications was massive, running to almost 7,000 pages. In written submissions, Applicants used the words "tremendous," "expansive," "robust and full" to describe its size and scope. Counsel provided hundreds of pages of written submissions. More than 7,600 pages of authorities were provided. [70] In terms of the evidence, over 60 affidavits were filed. Cross-examination on affidavits is permitted under the PPPA (see s. 9(5)), and, as part of case management in advance of the hearing of the PPPA Applications, an order was made that counsel for a party could rely on the cross-examinations done by counsel for another party or parties as if it was their own. Even so, Mr. Galloway, for example, was cross-examined on

eight occasions. [71] Virtually all (if not all) of the affidavits filed by the parties themselves contained material that, in the normal course, would be inadmissible. Examples of inadmissible material include hearsay and disguised hearsay, opinions (colourfully expressed and on many topics) that would not qualify as admissible lay opinions, irrelevant statements of belief, argument and conclusions, speculation, hyperbole, emotional pleas and rhetoric. [72] However, and with one exception, counsel (wisely in my view) spent little time either in written or oral submissions arguing over admissibility of evidence. Rather, the submissions focussed on the weight that I should give to the evidence filed, in the context of the legal test that applies under the PPPA. [73] The one exception concerns the Affidavit of Dr. Jessalyn Keller, filed on November 9, 2020. This affidavit (containing a report prepared by Dr. Keller) was tendered by counsel on behalf of Ms. Gray and Dr. Kosman (and relied on by others) as expert opinion evidence concerning the ways in which women and girls use Twitter to engage in feminist public dialogues and activism, and on the ways in which Twitter contributes (if at all) to public discourse on issues involving violence against women. Counsel for Mr. Galloway took the position that Dr. Keller's evidence was not admissible as expert opinion evidence. I will

address the admissibility of Dr. Keller's opinion evidence later in these Reasons. [74] Because, on the PPPA Applications, I am not to take a deep dive into the evidence and the court is to defer ultimate assessments of credibility, A.B.'s defence of justification - that is, that her statements that Mr. Galloway raped, sexually assaulted and physically assaulted her are true - cannot be a "defence in play," as her counsel acknowledged. Despite the size of the record, there is no possibility of determining the facts relevant to A.B.'s defence of justification, even on a "grounds to believe" standard. The conflicts in the evidence are too deep, and will have to await ultimate assessments of credibility at trial.

5. Background and outline of events [75] As part of their submissions, counsel for the Applicants provided the court with a joint chronology, annotated with evidence references to the application record. This chronology, while focussed on facts and events, was not a plain, objective stating of the facts and events. Rather, and given the circumstances in which it was provided (as part of the Applicants' submissions), facts and events were often characterized in a particular way. Then, as part of his submissions, Mr. Burnett, counsel for Mr. Galloway, provided the court with a second chronology. This was based on the Applicants' chronology, and showed additions made by Mr. Burnett. [76] Setting to one side the argumentative characterizations, the two chronologies show that there is substantial agreement on many events. For my purposes (and keeping in mind the direction that, at this stage, the court is not to do a deep dive into the evidence) the chronologies have been very helpful. I will use the chronologies to describe events and the background, supplementing the chronologies from the affidavit evidence where I consider it appropriate to provide more details. This will, in turn, provide context for my discussion of whether there are "grounds to believe" Mr. Galloway's claims have substantial merit and (in relation to the defences in play) there are no valid defences, and also

for the final weighing. Given the legal test that applies on the PPPA Applications, the record also contains a great deal of material that I will not be discussing. [77] I will also note (as I do a number of times in these Reasons) that my comments, conclusions and findings are expressly limited to the PPPA Applications, and are expressed in that context, based on the record before me. Nothing can or should be taken as prejudging the ultimate merits of the claims or defences. (a) 2011-2013: A.B. is a graduate student and Mr. Galloway is a professor in (and later Chair of) UBC's Creative Writing Program [78] I begin in 2011. [79] In the period 2011 to 2012, A.B. was a graduate student in the Creative Writing Program at UBC. Mr. Galloway was a professor, and he had been a member of the faculty for some time. [80] A.B. asserts that in March 2011, Mr. Galloway physically assaulted her when the two of them were alone together on his boat. This event has been described as both a choking and a strangulation, before A.B. escaped. A.B. also asserts that, between March and May 2011, Mr. Galloway sexually assaulted her on three occasions. Mr. Galloway categorically denies all of A.B.'s assertions. [81] Between 2011 and 2013, Mr. Galloway and A.B. had a sexual relationship with one another. Otherwise, they are diametrically opposed to one another on the proper characterization of that

relationship. However, A.B. does not assert any occasions of sexual assault during this time. The relationship ended sometime in 2013. [82] In July 2013, A.B. made a report to UBC's Equity Office of what is described in a UBC "site incident report" as "Harassment (Sexual)." Mr. Galloway is identified as the subject of the complaint. The "narrative" portion of the report reads in part [all sic; A.B. is identified by name]: [A.B.]'s complaint is that Steven GALLOWAY, a professor in UBC Creative writing, invited her to his office, supplied her with several drinks of hard liquor (Scotch Whiskey) and propositioned her for sex in his office at the UBC Buchanan Buildings. [A.B.] stated there had been a clearly sexualized atmosphere and more than one intimation of invitations to sex by GALLOWAY. [83] The report also reflects that A.B. was taken to the RCMP Police Detachment to meet with police. [84] A.B. disputes that the site incident report in fact captures the full scope of her report at the time, and says that she attempted to report Mr. Galloway's "sexualized violence" toward her. In her evidence, A.B. describes her experience making the report and dealing with the Equity Office as "terrible." She says that she was "deeply traumatized," and that she felt "even more silenced after this experience than before." [85] On July 23, 2013, A.B. wrote anonymously to an administrator in the

Equity Office. In her message, A.B. said in part [all sic]: I met with Janet Mee yesterday. She was helpful, clear and empathetic. I left that meeting feeling positive and in a much better position to handle the situation. Both Janet and Steve Bohnen from campus security also recommended that I also file a report with the RCMP. They both assured me that it would be another file that was private. That it was only to leave a paper trail. That turned out not to be the case. Officer Cripps told me that one [of] the incidences I told him about required him to go and question the man who has been harassing me. I was not warned by anyone that this would happen. It was an extremely traumatic and terrifying situation, because questioning the man would only serve to rile him up. I had to call my husband and share information I didn't want to, and I had to retract my statement to get the police to not act - which will weaken my case should I ever choose to put one forward. . . . The situation was deeply traumatizing. I now feel awful. Victims should not go to the police at all unless they are prepared for the police to take over and do things the victims may not want them to do. I'm very sorry but I feel flattened and ruined today. The police created more trauma. The more I talk the worse it gets for me. I don't want to talk - to make myself vulnerable or share any part of my experience -

with anyone else at UBC. [86] A.B. says that in December 2013, she reported to UBC what A.B. considered to be certain inappropriate conduct by Mr. Galloway toward another female graduate student, and that she was told to get proof. A.B. provided some screen shots of social media postings. However, A.B. was upset at being asked to provide "proof" in respect of her report. She felt that it was not her job to get proof. Thus, this reporting was, for A.B., another negative experience. (b) 2014: A.B. returns to Ontario and comes across essays about "gendered violence" in the Canadian literary and academic communities [87] A.B. left UBC and returned to Ontario in 2014. She had not yet completed the thesis (essentially a book-length, publishable manuscript) required to graduate. [88] A.B. says that, in the fall of 2014, she read an essay authored by Emma Healey "Stories are Like Passwords" in the journal The Hairpin. A.B. described the essay as being about gendered sexual violence in the Canadian literary and academic writing community, and the silencing of victims. According to A.B., around the same time, she also read an article in the Globe by Stacey May Fowles, titled "The Dangers of Being a Woman in the Canadian Literary World," which, A.B. felt discussed similar themes. A.B. explained: These essays strongly spoke to my own experiences. The essays lay out the enormous systemic

difficulties in disclosing sexual violence and at the same time explain how crucial it is that women disclose if there is any hope of stemming the tide of sexual violence in our communities and society. These essays made me continue to reflect on my responsibility to report the Plaintiff's conduct to UBC, as well as my extreme fear of what would happen to me if I did. (c) Late summer and early fall 2015: A.B. begins corresponding with UBC Professor Paul Krause; later A.B. and Mandi Gray are introduced to one another; A.B. and CBC producer Ronna Syed also make contact [89] In the spring of 2015, Paul Krause, a professor in the History Department at UBC, published an article in The Talon. The article was titled "The Enduring Silence of UBC's 'Hunting Ground'." The article commented on the problems of sexual violence on university campuses and sexual harassment of students by professors, including at UBC. [90] A.B. explained that sometime before August 2015, she read Professor Krause's article and it "resonated" with her "deeply." According to A.B., around this time, she was preparing to graduate from UBC, and was "still considering" whether to report Mr. Galloway, which she said she felt a responsibility to do. However, A.B. explained that she remained reluctant to report "because I believed the Plaintiff would retaliate and harm me if I did report." [91] A.B. had not yet

finished her thesis. Professor Maillard was prepared to accept what she had completed as sufficient to meet UBC's requirements to graduate. Professor Lyon, A.B.'s second reader, was not. Eventually, Professor Maillard persuaded Professor Lyon to accept what A.B. had produced, so as to allow A.B. to graduate. However, Professor Lyon did not feel comfortable doing this, and later, after Mr. Galloway had been suspended, she went to the Dean of Arts to tell him what she had done. [92] According to A.B., because of Professor Krause's article, and "its connection to my own experiences at UBC," she reached out to Professor Krause by telephone "for support." They then began communicating with one another by e-mail. A.B. sent Professor Krause links to the articles by Emma Healey and Stacey May Fowler. According to A.B., Professor Krause suggested that A.B. get in touch with Mandi Gray, and also with a CBC journalist and producer, Ronna Syed. Ms. Syed was involved with the Fifth Estate and producing "School of Secrets." According to A.B., Professor Krause told her that the Fifth Estate was doing a story on universities' failures to respond to sexual assault on campus, and specifically UBC's failures in this regard. In an e-mail message on August 31, 2015, A.B. wrote: "Also, I haven't given up on finding effective ways to hold Steve accountable for his crimes." [93] A.B. made contact with

both Ms. Gray and Ms. Syed. According to A.B., she met with Ms. Syed sometime in late August or early September 2015, and they had an off-the-record discussion about A.B.'s experience in 2013, and what A.B. described as "the ways in which it is so difficult to report sexual violence at a university and UBC specifically." At this time, according to A.B., she did not mention anything about Mr. Galloway. [94] On September 3 and 4, 2015, A.B. exchanged e-mail with Professor Krause. She told him that she had been contacted by one of her former female students in the Creative Writing Program, and that, although she wanted to tell her and her friends to stay away from Mr. Galloway, she did not. A.B. told Professor Krause that she had sent a message to Professor Maillard, asking to speak to him, but expressed fear of his possible reaction: What if he doesn't believe me? What if he doesn't want to hear it? What if I upset him? What if he confronts Steve and Steve comes after me? [95] In his response, Professor Krause said, in part: Talking to Keith [Maillard] may well be a good idea, but he may in fact choose not to believe you. I don't know. The folks in the Sexual Assault Support office may be helpful, particularly regarding the question of your safety, now, in light of possible retributive moves from Steve. [96] Based on A.B.'s September 4 e-mail to Professor Krause, it appears that

she contacted a person ("Josey") at the Sexual Assault Support Centre. However, according to what A.B. said in her message to Professor Krause, "Josey" made her nervous by suggesting that UBC might feel compelled to move ahead on its own in respect of A.B.'s "case" because of potential liability for the university. A.B. told Professor Krause that she did not want UBC to be acting on its own "as this seems to be a move to protect the university not a move to protect me from further trauma." She also told Professor Krause: I am not going to come forward to anyone in the Creative Writing Department. There are [too] many possible negative consequences. (d) End of October 2015: A.B. tells Ms. Gray Mr. Galloway had raped and strangled her; Ms. Kirchmeier is involved in "School of Secrets" [97] By the end of October 2015, A.B. had told Ms. Gray that Mr. Galloway had raped and strangled her. [98] I have described above Ms. Kirchmeier's involvement in the "School of Secrets" episode of the Fifth Estate. (e) November 11 and 12, 2015: A.B. sends e-mail to Professor Maillard and Mr. Galloway, forwarding an open letter from Ms. Kirchmeier and mentioning the Fifth Estate program; Mr. Galloway leaves voice-mail messages for A.B; A.B. tells Professor Maillard she was sexually assaulted and physically assaulted by Mr. Galloway [99] On November 11, 2015, A.B. sent an e-mail message to two e-mail

addresses at UBC. The first address was "Keith use this Maillard <[e-mail address redacted]>". The second address was in fact the e-mail address for the Chair of the Creative Writing Department, in other words, for Mr. Galloway. The subject was: "FW: FYI UBC Sexual Assault COVER UP." [100] By the message, A.B. was forwarding an open letter written by Ms. Kirchmeier that, among other things, described her role in reporting the History Department former student Dmitry Mordvinov. Ms. Kirchmeier's letter also informed readers of the date and time the Fifth Estate would be broadcasting its program ("School of Secrets") concerning what Ms. Kirchmeier described as UBC's "egregious failures." This was the program produced by Ms. Syed. Ms. Kirchmeier's open letter included a link for anyone who wished to watch a promo of the program. [101] In her message, A.B. said in part [underlining in original; all sic]: Hi Keith, Keith, if you decide to forward this information to anyone else in the department or beyond, please delete this message that I have written to you before you forward it. I feel very unsafe for reasons of my own. Sending this is risky for me. I am forwarding Glynnis' open letter to you, as I know you are a prof--and a dear friend--who cares deeply about the safety of women in general and on the UBC campus in particular. Below is some of the background about what is

happening at UBC right now. (I don't know how much of this specific information gets filtered to you through the mechanisms of the university. That would be an interesting conversation for us to have.) [102] Both Professor Maillard and Mr. Galloway received this e-mail message from A.B. [103] According to Professor Maillard, he forwarded Ms. Kirchmeier's open letter to Mr. Galloway, as Chair of the Creative Writing Department, without A.B.'s name or covering message, and inquired whether the Department should take a position on the letter. Mr. Galloway and Professor Maillard also spoke on the phone. [104] On November 12, 2015, Professor Maillard and A.B. exchanged e-mail. Professor Maillard wrote (in part) [all sic]: I deleted your name and comments and forwarded the letter to Steve & Lisa . . . I will never tell anyone that it came via you. I am truly sorry that you feel unsafe for reasons of your own. Does this have anything to do with UBC? If so, is there anything I can do to help? In conversations with me (and, I think, even in emails, though I am not sure) you have alluded to some unfortunate incidents. I always thought that if you wanted to tell me anything about them, you would, and if you didn't, it was none of my business. (It was hard for me to tell if you were referring to things related to your husband or things related to UBC.) But I do want to ask you this: did

anything happen to you that was related to the CrWr Program? If so, is there anything that we should have been doing that we were not doing? And, if so, is there something we should be doing in the future to create a safe space for our students? This is very important to me. I want our students to not only FEEL safe but to BE safe. I'm sorry that I haven't got back to your manuscript, but I am creating space in my life and will get back to it soon, maybe even tonight. I'd be delighted to have a phone conversation. I'm available much of the time. When is a good time for you? The "manuscript" was A.B.'s Master's thesis. [105] A.B. wrote back to Professor Maillard (with the subject line: "Re: the letter - confidential please"), and said [all sic]: To answer your question: yes there was something that happened related to the creative writing program. I have been on the edge of telling you about it about thirty different times over the past two years, but I always backed down at the last minute because I was paralyzed with fear: Will you still be my friend? Will you still be able to work with me? (Much earlier on I worried) would you even believe me? I also worry about you: How will this impact you emotionally? How will it impact your work environment? If you hear something you really don't want to hear, how will this impact your well being, your health? Because of what happened, I

am not attending graduation. I've also been told to keep my mouth shut about what happened, because talking about it 'could ruin my writing career before it begins'. I know you care deeply about the people in your life and the people in the program. It's one of the many things we all love about you. I want the Creative Writing program to be a safe place for students too, and I have tried to use my terrible experience to galvanize the university administration, but the university system doesn't care. (They believe, but they don't care.) I really do want to talk about this with you, because this has been a toxic secret-- but there is the strong possibility that beyond being a caring friend--which is huge! !! I don't know how much impact you can have on the university environment. (I have a glimpse of this from speaking to Prof. Paul Krause in the History Department.) About the culture of the Creative Writing Department--I don't know. Thank you for your note. I'm feeling very emotional at the moment, so I hope this is coherent. I'm happy to talk any time. Maybe the sooner the better. Tonight works. The latest UBC rape scandal has me reliving my own, but it is very helpful to try to be an ally to these women. What I've read: more than police intervention and court processes, community peer pressure (verbal non acceptance and exclusion) has the most profound affect on changing the

behaviour of rapists. [106] According to Professor Maillard, after receiving A.B.'s message, he called Mr. Galloway and told him that that it was A.B. who initially forwarded Ms. Kirchmeier's open letter and that A.B. had concerns regarding the Creative Writing Program that she was now prepared to discuss with Professor Maillard. Mr. Galloway also recalled that Professor Maillard told him that A.B. had forwarded Ms. Kirchmeier's letter (something Mr. Galloway already knew because he had received A.B.'s e-mail), and that A.B. had something to tell Professor Maillard that involved the Creative Writing Department. [107] It is at this point that Mr. Galloway phoned A.B. They did not speak to one another. Instead, Mr. Galloway left two voice-mail messages. The second, longer message began: "Hello, it's me again." I will come back to this voice-mail message shortly. [108] According to A.B., Mr. Galloway's contact sent her into a panic. As far as A.B. was concerned, contact came completely out of the blue, because there had been nothing since May 2014. Mr. Galloway's perspective was different however. The November 11 e-mail message from A.B. with Ms. Kirchmeier's open letter was sent to his e-mail address, and A.B. had initiated the contact with him. [109] According to Professor Maillard, shortly after speaking to Mr. Galloway, he had a long telephone call with A.B. According to

Professor Maillard, A.B. was emotionally distraught and crying, and asking why Mr. Galloway would suddenly be calling her after such a long time. During the call, A.B. told Professor Maillard that Mr. Galloway had sexually assaulted and sexually harassed her, and physically assaulted her by choking her. According to Professor Maillard, A.B. told him that she had reported her concerns about Mr. Galloway to UBC's Equity Office but had been given a "complicated run around." As Professor Maillard recalled, A.B. told him that other women in the Creative Writing Program had informed her that they experienced "inappropriate behavior" by Mr. Galloway, but were concerned about coming forward. According to Professor Maillard, A.B. told him that Ms. Rooney was one of these women. [110] According to A.B., during this phone call, she told Professor Maillard that she continued to have sex with Mr. Galloway but that "this ongoing sex was compliance on my part as a result of the violence and my fear of rejecting, refusing or angering" Mr. Galloway. [111] As Professor Maillard recalled, during this phone call, A.B. also told him about her earlier reporting to UBC, and told him that she had reported being sexually assaulted. However, Professor Maillard did not ask to see the report. [112] Around this time, A.B. told Ms. Rooney that she was a rape victim and that Mr. Galloway was the perpetrator.

Ms. Rooney did not ask for any details (such as when or where), which she did not consider relevant. According to Ms. Rooney, she considered what she knew about Mr. Galloway and her own experiences with him (which, as far as Ms. Rooney was concerned, were very negative), and essentially concluded A.B. was telling the truth. (f) November 13, 2015: A.B. begins the process of making a formal report to UBC about Mr. Galloway; around this time, A.B. tells Ronna Syed Mr. Galloway raped her [113] On November 13, 2015, in a courageous step, A.B. sent an e-mail to the Office of UBC's President (then Dr. Martha Piper), Robbie Morrison and Chad Hyson (also both at UBC) with a letter. Mr. Hyson was the Associate Director, Student Conduct & Safety for UBC, and with the Equity Office. A.B. also sent a blind copy of her e-mail to Ronna Syed. The subject of the e-mail was "Sexual Assault by a UBC Professor." The letter read in part: I am submitting a formal complaint about a sexual assault perpetrated on me by a current UBC professor. This assault took place during the spring of 2012. What prompts my complaint are several phone calls and two voice messages left on my personal phone yesterday by the professor who sexually assaulted me. I have had no contact with this professor since May 2014. He had no reason to call me from a blocked number to my personal phone. He had no reason to call me at

all. I already reported this assault to a staff person at UBC in the summer of 2013 with extremely negative outcomes. I am repeating to you what I told them: I think this professor is a danger to other students and I do not want them to be exposed to further risk from him. Your website does not provide clear information about how sexual assault cases are handled at UBC. I need timelines for this process. I need to know what the next steps are and when they will happen. I do not want to be left dangling. I'd appreciate you getting back [by] the end of the day today. [114] Also, on November 13, 2015, Professor Maillard sent a letter to Dr. Piper, which read in part [A.B. was identified by name]: I am writing to you in your capacity as President of the University of British Columbia. It has recently come to my attention that [A.B.], a student in our program, is submitting a formal complaint about a sexual assault that she alleges to have been made by a UBC professor and to have taken place during the spring of 2012. It is my understanding that she has written to you about this matter. [A.B.] called me, and I spoke to her on the phone yesterday, and she outlined her complaint to me. She also told me that she reported this complaint both to the university - to Monica Kay, Director, Conflict Management, Equity and Inclusion Office, to be exact - and to the RCMP. I am one of the two

Equity Officers for the Creative Writing Program and am listed as such on our website. I am writing to inquire why, if [A.B.] reported her complaint to the university in the summer of 2013, I never heard a word about it until yesterday, the 12th of November, 2015, and then, when I did hear about it, I heard it not from the university but from the student. Had I or the other Equity Officer been informed at the time, there are a number of things we might have done, beginning with an internal inquiry in our program, but when one does not know anything, one cannot do anything. On this matter I believe that the university has been remiss in its duties. I am writing this to you in confidence because I wish to protect the safety of the student as well as that of others in our program. I would greatly appreciate your attention to this matter, [115] Mr. Hyson responded to A.B. promptly by e-mail, and said in part: Thank you for reaching out and sharing what must have been a very difficult experience for you. The University takes reports of sexual assault very seriously and we wish to ensure that you are fully supported and are aware of your options so that you can make a decision on how you would like to proceed. In your letter, you indicate that you received several phone calls and two voice messages in the last day from the professor. We are concerned for your safety, if you feel

there is an immediate threat to your safety; we encourage you to call 911. I would like to meet with you at your earliest convenience and this could be done today if you wish either by phone or in person. In this meeting, I will need some additional information from you regarding the assault and the nature/tone of the telephone calls you received. I can then determine the best way to proceed and advise you on your reporting options. I recognize how difficult it can be for a survivor to share the details of an assault so I will try to limit the questions I have at this time to what I need to know for the purpose of advising you on your reporting options. In the meantime, I would like to make you aware of two campus resources that are available to survivors of sexual assault. The first, UBC Counselling Services provides free and confidential on-to-one counselling to support UBC students who have been sexually assaulted and/or impacted by sexual abuse or other forms of sexualized violence. Counselling Services provides a respectful, safe, and supportive environment. The second, AMS Sexual Assault Support Centre (SASC) offers free and confidential short-term and crisis emotional support for survivors of sexualized violence, as well as bystanders, family, friends and loved ones. SASC can assist survivors with resources, referrals and advocacy services relevant to individual need. If

you would like to connect with either of these services, we would be happy to assist. From your letter, it is unclear whether you are currently in Vancouver or [redacted], Ontario. If you are in Ontario, I would be happy to assist with connecting you with local supports and services. Please let me know if you would like to arrange a time to meet today, over the weekend or early next week. I am currently at my desk [phone number redacted] or you can reach me by email. [116] A.B. did not phone Mr. Hyson. Instead, on November 14, she sent him an e-mail which said: Thank you for your prompt reply. Although I appreciate the information you have provided, you still haven't answered my question: whom at UBC should I report to about my sexual assault? Once you tell me who that person is, I will provide a detailed statement. What I do not want to happen is to be bounced from person to person and have to repeat my story multiple times. I'm still in the dark as to what the exact process forward is when a person files a sexual assault complaint. - What department investigates my sexual assault complaint? - What are the exact steps of this investigation? - What is the timeline? How long does the university take to investigate this? - If you are satisfied with the information I provide, what are the possible consequences for this professor? - Once I tell you who this professor is, will you

automatically provide my statement to him, or will you run it by me first? - Do you involve the police in your investigations? I have been in counseling for my sexual assault for the past two years and my counselor has advised me that pursuing this complaint may be detrimental to my mental well being. However, I am very concerned about the safety of other women on campus and would like this dealt with as soon as possible. [117] Around this time, A.B told Ms. Syed that Mr. Galloway had sexually assaulted and physically assaulted her. [118] As Ms. Rooney recalled, A.B. told her that she was also making a formal complaint to UBC, and that she had told Professor Maillard and Professor Lyon what Mr. Galloway had done to her. [119] On November 16, 2015 (it appears to be in the early evening), A.B. and Mr. Hyson exchanged further e-mail. A.B. wrote [all sic]: Dear Chad My anxiety level is rising, because you are not providing me with answers to my questions. I am really confused as to why you need additional information before you answer these straightforward questions: - What department investigates my sexual assault complaint? - What are the exact steps of this investigation? - What is the timeline? How long does the university take to investigate this? - If you are satisfied with the information I provide, what are the possible consequences for this professor? ' The fact that I'm

not getting straightforward answers at this early stage makes deeply concerned about the process UBC has in place about dealing with sexual assaults complaints. I would like answers to all of these questions. Also, do you provide my name and my statement to my rapist upon receiving the information you are asking for? For reasons I can reveal later, at this stage I am concerned about not just the safety of other women on campus, but about my own safety. I can't impress upon you enough the urgency to reply to me quickly. [120] Again, Mr. Hanson responded promptly, writing [all sic]: Hello [A.B.], As I mentioned I don't work with this process specifically but I am in the process of getting answers to all of your questions. In the interim, the investigation would be conducted by the Dean's Office of the professor's faculty and they would make every effort to move expeditiously through the investigation. The University takes reports of sexual assault very seriously and possible disciplinary measures imposed can range up to termination of employment from the University. It is not uncommon when there are reports of serious misconduct like sexual assault that suspension and restriction from campus are put in place pending the outcome of the investigation. Once I have the exact steps of the investigation, which I hope will be soon, I will pass them along. [121] However, by November 16

(as I note below), Professor Lyon had contacted Gage Averill, UBC's Dean of Arts at the time, about A.B.'s claims, and Mr. Galloway had been suspended. Indeed (and as I also note below), Professor Lyon had sent an e-mail to A.B. the evening of November 15, letting her know that she had spoken to Dean Averill about Mr. Galloway. (g) Professor Maillard and Ms. Rooney discuss A.B.'s report that other women had experienced inappropriate behaviour from Mr. Galloway [122] According to Professor Maillard, after his telephone call with A.B. on November 12, he phoned Ms. Rooney. As Ms. Rooney recalled, this phone call was probably on November 13. [123] According to Professor Maillard, he believed that Ms. Rooney knew from A.B. why Professor Maillard was calling her. As Professor Maillard recalled, without him disclosing to Ms. Rooney what A.B. had told him about Mr. Galloway, or Ms. Rooney telling him that she knew about A.B.'s claims against Mr. Galloway, Ms. Rooney raised her own concerns about Mr. Galloway. As Professor Maillard recalled, during the call, Ms. Rooney told him that there were a number of other women who had reported to her that Mr. Galloway had engaged in "inappropriate behavior" towards them. [124] As Professor Maillard recalled, he and Ms. Rooney discussed that Ms. Rooney would speak to these women about whether they intended to come forward with complaints about Mr.

Galloway. As Ms. Rooney recalled, she and Professor Maillard agreed that she would contact others who Ms. Rooney knew or believed had either witnessed something relevant to A.B.'s claims against Mr. Galloway or might have a reason to advance their own complaint against Mr. Galloway. (h) November 14 and 15, 2015: Professor Maillard tells Professor Lyon what A.B. has told him; a meeting of Creative Writing Department faculty (excluding Mr. Galloway) is scheduled for November 15; A.B. sends further communications to Professor Maillard and Professor Lyon in preparation for and to present at the meeting and sends e-mail to Ms. Rooney [125] On the morning of November 14, 2015, A.B. sent an e-mail message to Professor Maillard, forwarding Mr. Hyson's first message and observing "none of the specific questions I asked were answered." A.B. told Professor Maillard that she had sent a follow-up message to Mr. Hyson, and would send that to Professor Maillard. She concluded her message: If you would like to discuss any of this, let's do so in person. You are using a UBC email which means they can track anything I say to you. Because of the assault from Steve and the University failing to help me with my assault--twice, I no longer have any trust in the institution. [126] On November 14, 2015, Professor Maillard called Professor Lyon and told her that A.B. had come forward with allegations

that Mr. Galloway had sexually assaulted her while she was an MFA student. Indeed, notes Professor Lyon made at the time record that Professor Maillard told her A.B. "had gone to the University accusing Steven Galloway of violent sexual assault." It was agreed that there would be a meeting at the home of another faculty member, Linda Svendsen, the next day (Sunday, November 15) at 1:30 p.m. to convey this information to Creative Writing Department faculty. [127] Later on November 14, Professor Maillard sent an e-mail message to A.B. This time, he did not use his UBC e-mail account, but a Gmail account. Professor Maillard's message reads in part ("Linda" is Professor Svendsen): Here I am on Gmail. Linda called me, and we had a long talk. She pointed out that even though I (Keith) believe you, that means that all she can believe absolutely is that Keith believes you. She was speaking hypothetically (she's good at that). Her first reaction was to believe you -- although, as she says, she was getting the story second hand. Now she wants, as she says, any evidence at all. Anything that would help. At any rate, she pointed out that the meeting tomorrow could turn out to be a fairly hard-ass one. Anything that would help to convince anybody would be good. Can you send me a copy of the few emails he sent you that got saved? If you can't convert the voicemails to MP3, can you send me a

transcript of them? The meeting is tomorrow at 1:30 Pacific time. [128] A.B. responded to Professor Maillard by e-mail early in the morning her time (in Ontario) on November 15. The message is a long one. However, given its importance in the chronology, and to the issues on the PPPA Applications (particularly the defence raised of qualified privilege, and malice), I set it out in full [all sic]: Hi Keith, It's 6:24am here. I have been wide awake since 4:00 I will send you everything I can. My plan was to go to the Mac store at 8:00am to get these files phone files converted. I think they are the most important evidence. In the mean time, since I am not sleeping, I will transcribe the one is which he says he will "turn himself in" and send it to you asap. But I think tone of voice is everything too. Honestly, I am very stressed out/ Actually terrified. This is any rape victims worst nightmare--the idea that people don't believe enough to do anything--because the consequence of that for me is dire. It gives the rapist power, and I have a target on me. If Steve stays in power, gains allies, and can then freely and openly use his righteous rage against me--because I've now been exposed by someone(s) in the apartment (someone will tell him) That puts me in the most dangerous and vulnerable place possible. In a court of law, the rape victim's story is the evidence, because it is

understood that 'hard evidence' like documents and recordings usually don't exist at all. (The older draconian law said their had to be a witness to the actual rape. That's long gone.) I don't know if it helps to remind the tenured faculty of that. I don't know it the know that. I filed a police report about Steve. I can't get that tomorrow, but it is on file with the RCMP at the edge of campus. The Head of Campus Security--his name is Steve--was the one who helped my put safety plans in place and told me that Steve was a serial predator. He would remember Steve Galloway's name for sure. He might have a file. Monica put me in contact with him. Monica Kay--does have a file on my complaint to the university about my sexual assault. There are 3 doctors, whom I spoke with at various stages of Steve harassing me about how to handle unwanted sexual attention from Steve, and it is in their records. Which I am pulling for my own case. I will add that every single person I mentioned above, including the police believed me. The police so much so--because of the choking and the credibility and detail of my account--that he wanted to head to Steve's office immediately to question him I also have 30 pages of back and forth on Facebook with Steve, while he was grooming me for the sexual assault. Everyone who has seen this, including the media, says this is very damning evidence. There is no

earthly reason for a professor, a person in a position of power and control, should be having all day Facebook chats with any undergraduate student. In those messages he mentions buying alcohol and hoping if I drink it that "mayhem" will ensue. He makes sexual innuendos Here is my worry about giving this to the faculty, Keith: lawyers and investigators at the CBC say this is powerful evidence. Friends of Steve on faculty, who are not lawyers, may not grasp the importance of these documents, they may just think it's friendly chat--and I worry about someone leaking this evidence to Steve--because I have my own trial against him coming up through the university. What I am about to say is not a threat it is a fact: I spoke to a lawyer after I got off the phone with you because there is a case for me to sue the university. I didn't speak to him at all about the Creative Writing department, because I hold the university responsible for their failure to act and their mishandling of my case. However, if the entire tenured faculty know about my case and choose not to act responsibly, and take seriously an violent physical assault and rape in their own hallway, and then open me up to Steve's brutality again, their is almost certainly a strong case for suing the Creative Writing Department. I am stating this as a fact--not a threat!!! I think that sceptical or shocked members of the

department might need to know how much more serious this could get for the department. If they don't act. Also, they should know that another student was sexually harassed by Steve (Chelsea) and that other women are coming forward. So far two more, and Chelsea has just scratched the surface. It might help them to know that more and more women are letting their accounts be recorded. That there is growing rage among alumni. I see no good outcomes for ignoring this. Also, a growing number of creative writing alumni have already heard Steve's messages and they are filled with rage and disgust and overwhelmed with the need to act--and they are acting. So department failure to act will bring negative consequences from this group--including others who have been harassed. What I am doing here is trying to present you with pieces of an argument that you can be built in this meeting. There is also the issue of a lot of scrutiny of sexual assault in Creative Writing Departments across the country (Emma Healey's, Stories like Passwords, The National Post article etc. so the media would very interested in writing about the most venerable Creative Writing Program in the country failing to act--failing to do a thorough investigation and external review is smart for the department. I have been approached about doing a print news piece about UBC and Steve. I have not committed ye, because I

don't want it to be public. I want it to handled responsible by the university. But, as you said about the Art of War, you have to give your opponent a way out. If the department doesn't act responsibly and reasonably and with a heart and be willing to believe a victim (the percentage of victims who lie is less than 1%--this fact from a Toronto lawyer who has spent 20 years specializing trying rape cases,) Then the department will have given me no way out--which means I become forced to fight to the seat, and that would mean fighting the department publicly--which I don't want to do at all. Put I keep getting failed and let down and I can't take it any more, Keith. What do they want, a dead body? The department needs to care about rape victims. That's what this whole CBC documentary is about. the failure to give a shit or act. To allow rapists to thrive while rape victims face further violence from university institutions, lose standing in the community, get sidelined, fail to get jobs, mental health issues on and on and on. I'm off my desperate, sad, angry pulpit now and will begin transcribing and sending. I hope you slept better than I did. [129] A little later on November 15, A.B. forwarded both Professor Maillard's November 14 message, together with her lengthy response, to Ms. Rooney, with a message that read in part: Chelsea, Read letter from Keith below mine and then my

response. Your name is mentioned in here. It is understood between Keith and me that your name is always anonymous. Tenured faculty are holding an emergency meeting today. Keith wants to go the Dean and get Steve removed immediately--put on leave and do an external review. He expects pushback from friends of Steve and people who are totally apathetic and uneducated about rape. [130] A.B. and Professor Lyon also spoke to one another by phone the morning of November 15. A.B. told Professor Lyon that Mr. Galloway had sexually assaulted her. According to Professor Lyon, she immediately believed A.B. and told A.B. so. She did not ask A.B. any questions. Professor Lyon explained that she found A.B.'s "extreme distress", and that A.B. was crying and frightened, "very credible." According to Professor Lyon, A.B. told her (among other things) that she had previously gone to the police but was concerned about what Mr. Galloway would do once the police approached him with the allegations and so did not proceed with a police report. [131] A.B. sent a message to Professor Maillard after speaking to Professor Lyon. The subject was "2nd voicemail from Steve," and the message read in part [all sic]: Hi Keith, I hope you are holding up okay, I look - and feel - like an old woman now. I sent a copy of this to Annabel as well, and I also sent her a copy of the first message via her cell phone. A

big hug to you. This is already a rough day for everyone. I spoke to Annabel. She was wonderful to me. She is angry as hell, ferociously, and determined to get Steve out asap. She is your (and my) full ally in this. She's a formidable woman to be going into battle with. Take care of yourself, friend. [132] According to Professor Lyon, A.B. told her there were others who had complaints and concerns about Mr. Galloway. Ms. Rooney was identified as one of them. As Professor Lyon recalled, on the morning of November 15, she spoke to Ms. Rooney, who told her that Mr. Galloway had "behaved inappropriately" towards her and that she knew of other women who had similar allegations against him but were afraid to come forward. [133] As she had told Professor Maillard she intended to do, A.B. sent Professor Lyon an e-mail attaching recordings of voice-mail messages Mr. Galloway had left for A.B. on November 12. A.B.'s message reads in part [all sic]: This was the first voicemail. Context to all of these messages. I haven't had any sort of contact/communication with Steve since May 2014. We have no "relationship" whatsoever. The implied intimacy of the "hi it's me" bit is really creepy and inappropriate coming from the Chair of my department. The other woman who was assaulted and who has been gathering stories from other women is going to get in touch with you before your meeting today and

give you all the information she has. Her name is Chelsea Rooney. She is a UBC Creative Writing Alumni. I gave her your cell and home number. I hope that is okay [134] A.B. said nothing to either Professor Lyon or Professor Maillard about the personal relationship she and Mr. Galloway had with one another between 2011 and 2013. [135] With this e-mail message, A.B. attached a transcription of the longer of the voice-mail messages (I will refer to this as "Voicemail No. 2") left by Mr. Galloway on November 12. The transcription read [all sic]: Transcription of Voicemail No. 2 Hello it's um it's me again. Sorry that last message was extremely fumbling and inarticulate, anyway, ah what I, what I wanted to talk to you about and call was was twofold, um 1) I guess was to say that if what you wanted to talk to with Keith had anything to do with me, um I would like to number one have a chance to before you do that to apologize to you and um number two just assure you that I um I will take responsibility for our relationship um I think actually what I'm asking is maybe for a chance if you wish it for me to turn myself in, um as I think you know um Keith's opinion of me matters a great deal to me and I'm pretty ashamed of the way I used to be and act I can assure you I am no longer that way um I have gone to a training thing ah at the Equity thing and I have I don't know I have turned

over a new leaf and I'm trying to be a better person and I understand, but anyway um I would like to, I would like to, I don't know I would like to turn myself in and if that's what you wish me to do um so anyway so if you I understand you probably don't want to talk to me but if you, but if you could see clear to call me back and give me a chance to talk to you about things and maybe even on a broader sense what you would wish department culture wise um to change I, I would appreciate it that a great deal, again you are not obligated to do so, but it would mean a lot to me, um and maybe help this become um a productive situation or whatever, ok, bye. [136] Throughout the morning of November 15, A.B. and Professor Lyon exchanged more e-mail about material A.B. was sending for presentation at the faculty meeting. Professor Maillard was copied on most of the messages. Items sent by A.B. included an audio file of Voicemail No. 2 and a transcript (prepared by A.B.) of what A.B. described as text messages sent to her by Mr. Galloway when A.B. was an undergraduate applying for admission to the MFA program. In response to Professor Lyon's question whether she had A.B.'s permission to play the audio of Voicemail No. 2 at the meeting, A.B. said: Yes. Play it. Do you think it is helpful for our case against him. I really hope so. . . . [137] In A.B.'s covering e-mail message for the

"Inappropriate Text messages from Steve - from when I was an undergrad," A.B. said [all sic]: Annabel and Keith, I hope this document will be useful evidence for faculty and given them a little insight into a couple of moments of the 'lighter' abuse--meaning verbal not physical. I tried my best to be as specific as possible. The text messages are directly from Steve. I hope both of you are holding up okay. Let me know if you need anything else from me. [138] The attachment was A.B.'s transcription of text messages from Mr. Galloway, interspersed with her commentary. The document began with the statement: "Steve sent me the text messages below to me several weeks before he choked me". [139] Then, under cover of an e-mail message with the subject "final doc I'm sending for meeting--re CBC vetted this rape story," A.B. also sent a document to both Professor Lyon and Professor Maillard, with the message: I've attached a doc re: the CBC lawyers vetting my story. In case faculty are concerned about thin evidence. [140] The document, which I will refer to as the "CBC Document," read as follows [all sic]: I want tenured Creative Writing Department faculty to know that when the 5th Estate got wind of my rape, and I met with them at the CBC, they looked at my evidence and listened to my statement, put it through their lawyers--who are meticulous about potential legal cases leveled

against them. The CBC legal team thought my evidence was damning, and they wanted my rape by Steve to be one of the two lead stories in the documentary airing on the 20th. "We want to give you a national platform to tell your story," they said. I declined to do the interview for two reasons. One of the reasons was that I have a great deal of respect (actually love) for the Creative Writing Department and the very good faculty who taught me there. I couldn't imagine breaking the story nationally, blindsiding the people I care about in the Department, and hurting them in this way. If the CBC law team thinks my case is strong and true and can easily withstand legal scrutiny, surely this should carry weight with the CRWR department in your decision making going forward. I have been working to protect myself, but also to protect the people I care immensely, mentors and friends like Keith, Annabel, Rhea, Nancy, Peggy, Bryan, Andreas, Maureen ...The problem is this: if this department doesn't understand the severity of rape in our department and how this has destroyed three years of my life, and if this department doesn't take clear and strong action to make sure rape culture is uprooted from the CRWR department then, in the near future I will take that national platform. I won't protect a department who doesn't protect rape victims. I won't protect a department that allows rapists to

hold positions of power, who allows serial sexual predators access to other young, vulnerable women. [141] Professor Lyon responded: Thank you for this [A.B.]. We will present it at the meeting. . . . [142] In fact, as A.B. admitted on her cross-examination, critical statements in the CBC Document were complete and deliberate fabrications. A.B. never met with "them at the CBC." She met only with Ms. Syed. Nothing was ever "put through their lawyers," or presented to a "CBC legal team" for consideration. No "CBC legal team" thought A.B.'s evidence was "damning," or wanted "my rape by Steve to be one of the two lead stories" in the Fifth Estate program airing on November 20. No CBC legal team knew anything about these things. No one, much less a "CBC Legal Team," said "We want to give you a national platform to tell your story." The "CBC law team" knew nothing about A.B.'s case, much less expressed a view that it was "strong and true." On cross-examination, A.B. explained her conduct in providing the CBC Document to be read out at the November Meeting as, essentially, something she did out of desperation, and in response to the request to provide evidence to present at the Meeting. [143] Neither Professor Lyon nor Professor Maillard asked A.B. whether the statements in the CBC Document were true, or asked any questions about it at all. Rather, the contents were accepted, at face

value, as true and damning of Mr. Galloway. The other material A.B. provided was treated in the same manner. No one contacted Mr. Galloway about anything that was going on. Indeed, Professor Maillard deliberately avoided Mr. Galloway's phone calls. Professor Lyon described herself as very angry with Mr. Galloway. (i) The November Meeting and Policy 3 [144] The tenured and tenure-track faculty of the Creative Writing Department met at Professor Svendsen's home on the afternoon of November 15, 2015. I will refer to this as the "November Meeting." Professor Svendsen acted as chair. [145] A package of written material was prepared for each person attending. This package included: ● an agenda (the first item was "Timeline, [A.B.] & S.G. - Keith"); ● A.B.'s letter to Dr. Piper, and Professor Maillard's November 13 letter to Dr. Piper; ● a post on Twitter from Ms. Gray to Mr. Galloway asking whether he was willing to comment on the Fifth Estate's "Silence is Violence" program, and Mr. Galloway's response (dated November 13) saying "Rape culture at UBC and in our society is unacceptable and those in power need to take concrete steps toward change"; ● A.B.'s and Mr. Hyson's e-mail communication with one another on November 14; ● e-mail communications between Professor Maillard and Professor Krause on November 12 and 13, in which Professor Krause expressed the views that A.B. was at

"considerable risk," that Mr. Galloway "in fact may pose a risk to himself," that "intervention of some kind is required with all due speed", and that the voice mail messages left by Mr. Galloway were "very troubling"; ● a copy of an excerpt from the UBC Faculty collective agreement (Article 10. Disciplinary Matters); and ● UBC "Policy 3," titled "Discrimination and Harassment" together with a guide to Policy 3. [146] Mr. Galloway's November 13 Twitter post is part of the context for Gray No. 5. [147] Policy 3 stated with respect to its "Background & Purposes": The University of British Columbia has responsibility for and is committed to providing its students, staff and faculty with an environment dedicated to excellence, equity and mutual respect; one that is free of Discrimination and Harassment; and one in which the ability to freely work, live, examine, question, teach, learn, comment and criticize is protected. Academic Freedom and freedom of thought, belief, opinion and expression carries with it the expectation that all Members of the University Community will conduct themselves in a responsible manner so as not to cause, condone or participate in the Discrimination or Harassment of another person or group of persons. The University's commitment to maintaining and respecting human rights at every level of the institution is central to this Policy. The fundamental

objectives of this Policy are to prevent Discrimination and Harassment on grounds protected by the B.C. Human Rights Code, and to provide procedures for handling complaints, remedying situations, and imposing discipline when such Discrimination or Harassment does occur. . . . [148] Under the heading "1. General", Policy 3 provided, in relevant part: 1.1 The University and all Members of the University Community share responsibility for ensuring that the work and study environment at the University is free from Discrimination and Harassment. The University regards Discrimination and Harassment as serious offenses that are subject to a wide range of remedial or disciplinary measures, including dismissal or expulsion from the University. 1.2 Although concerns regarding Discrimination or Harassment can be brought to either Administrative Heads of Unit or to the University's Equity Office, Administrative Heads of Unit bear the primary responsibility for creating and maintaining a study and work environment free from Discrimination and Harassment. Administrative Heads of Unit have the authority and the responsibility to address concerns regarding Discrimination or Harassment, whether or not they are in receipt of specific complaints. When addressing a concern or complaint, Administrative Heads of Unit are encouraged to consult with the University's Equity Office. 1.3 The University's

Equity Office is responsible for providing information, advice and assistance in a fair and impartial manner to anyone who has a concern about Discrimination or Harassment related to the University, including those who may have experienced Discrimination and Harassment and those alleged to have perpetrated it. . . . The Equity Office is also responsible for addressing concerns or complaints of Discrimination or Harassment that have been made to it directly using the procedures set out under this Policy, and has the authority to initiate complaints itself under those procedures. 1.4 The University will not tolerate any retaliation, directly or indirectly, against anyone who, in good faith, complains, gives evidence or otherwise participates in a process under this Policy. The University considers retaliation to be a serious matter because it prevents potential complainants, witnesses, and administrators from acting on their concerns. [149] Under the heading "2. Scope", Policy 3 provided, in relevant part: 2.1 This policy addresses Discrimination and Harassment on grounds protected by the B.C. Human Rights Code. The grounds currently are (actual or perceived) . . . sex . . . 2.2 The grounds under this Policy will be interpreted in the same manner as they are interpreted by the B.C. Human Rights Tribunal. For example, the ground of "sex" has been interpreted to include . . .

sexual harassment, sexual assault . . . , and will be so interpreted under this policy. . . . [150] Under the heading "3. Definitions," Policy 3 provided in relevant part [bold in original]: . . . 3.2 Administrative Head of Unit is any of the following: Director of a service unit; Head of an academic department; Director of a centre, institute or school; Principal of a college; Dean; Associate Vice President; University Librarian; Registrar; Vice President; Deputy Vice Chancellor & Principal; or President. . . . 3.4 Harassment is comment or conduct that one knows or ought reasonably to know is unwelcome, that creates a negative impact for the recipient, and that is related to one or more of the prohibited grounds of discrimination as set out in the B.C. Human Rights Code. . . . [151] The "Guide to Policy 3" stated, with respect to "Complaint Resolution Options": Any member of the University who believes they have experienced discrimination may consult with either the appropriate AHU [Administrative Head of Unit] or an Equity Advisor. Both AHU's and Equity Advisors have a responsibility to listen to the concerns brought forward and to consider the applicability of Policy #3 and other options. . . . [152] Professor Nancy Lee essentially acted as secretary (my term) for the November Meeting and made reasonably detailed notes of the discussion. It is plain that A.B.'s identity was

known to those attending the Meeting, and her name was used throughout the discussion. Based on Professor Lee's notes, when the Meeting was called to order, Professor Svendsen made a statement that "We're not here to determine guilt or innocence." Rather, the Meeting was called "to plan for next steps - to protect students & faculty." The "Agenda" (based on Professor Lee's notes) was as follows: 1. Keith walk us through [A.B.] events 2. Annabel update current info 3. Silence is violence & Paul Krause [153] The notes reflect that Professor Maillard then spoke. Among other things, the notes state [all sic]: In Keith's convo [conversation] with [A.B.], she outlined the entire history of assault and rape with allegations that SG choked and strangled her. The level of detail convince Keith that she was telling the truth. SG left two messages on [A.B.]'s phone - which we have copies of. [154] In the context of the PPPA Applications, and in that context only, I would identify this report of what Professor Maillard said as containing Maillard No. 1. [155] The notes reflect that Professor Maillard spoke to Mr. Galloway after he had spoken to A.B. on November 12, and that Professor Maillard essentially made up a story (based on an agreement he had with A.B. to do so) that A.B. had told him her distress was caused by another male writer, not by Mr. Galloway. The notes reflect that

Professor Maillard told those at the meeting that, after speaking to Mr. Galloway, he then called A.B. to say that Mr. Galloway had believed the story. The notes reflect that on November 13, Professor Maillard called Professor Svendsen and "Andreas" [likely Andreas Schroeder] to tell them what A.B. had told him about Mr. Galloway. The notes reflect that, before Professor Maillard spoke to Professor Svendsen, he spoke with Ms. Rooney, "who told Keith of numerous incidents that dated back to when she was 20." The notes reflect that Professor Maillard asked Ms. Rooney "if other students of her cohort would have stories to tell. Chelsea said they would and that she would begin calling them. She detailed several inappropriate incidents." [156] At this point, the notes reflect that Professor Rhea Tregebov reminded those in attendance that there had been no due process and that "we need to proceed by doing no harm." [157] The notes reflect that Professor Lyon then spoke. The notes reflect that Professor Lyon said [all sic; AL is Professor Lyon; CR is Ms. Rooney]: [A.B.] emailed AL this morning to ask if she could send recordings of Steve's voicemail. AL spoke with [A.B.]. There is a statement [A.B.] would like to read to faculty. [A.B.] said she was not the only one. She named Chelsea Rooney and said CR would like to speak to AL. SG has persisted in phoning [A.B.]. AL presents statements from [A.B.], read aloud text messages from SG. [158] Professor Lyon read out the CBC Document. She played the audio A.B. sent to her of the two voice-mail messages (including Voicemail No.

2) Mr. Galloway had left for A.B., and read out the transcriptions A.B. had sent of the text messages from Mr. Galloway. [159] In the context of the PPPA Applications, and in that context only, I would identify this report of what Professor Lyon said and did as containing Lyon No. 1. [160] The notes reflect Professor Lyon telling those in attendance that, based on her discussions with Ms. Rooney, "Seven women CR has spoken to have incidents to report." [161] In the context of the PPPA Applications, and in that context only, I would identify this report of what Professor Lyon said as containing Lyon No. 2. [162] Toward the end, the notes reflect that Professor Svendsen observed: LS always felt whatever way it went today that SG would be asked to take a leave. Acknowledged the pressure felt by the women who have come forward. But feels that we should consult with the Dean's office first. [163] The notes reflect Professor Maillard saying that "SG holds his position at the discretion" of the Dean, and that "Faculty can say they no longer have confidence" in Mr. Galloway. The notes reflect: "AL [Professor Lyon] decided that we will let [A.B.] and CR know that we're taking immediate action," and that Professor Lyon left a phone message for Dean Averill to "request an immediate meeting." (j) Professor Lyon contacts Dean Averill; the Dean suspends Mr. Galloway; the Dean's office sends

a memo to all faculty, staff and students of the Creative Writing Program, which is picked up by the local and national media [164] Later that afternoon, after the November Meeting, Professor Lyon sent an e-mail message to Dean Averill. The e-mail read in part: Could you please contact me as soon as possible? We have received a serious allegation of sexual assault against our Chair, and our faculty would like to meet with you as soon as possible tomorrow morning to receive guidance on how to proceed. . . . The student involved has been contacted by the 5th Estate in the context of the upcoming episode of allegations in history department, and while she declined to be interviewed for that program, she expressed to me privately that she would seek a national platform for her allegations if we did not take prompt action. . . . [165] According to Professor Lyon, she also spoke to Dean Averill later that day. As she recalled, she told him that there had been allegations of sexual assault against Mr. Galloway and that she and other faculty members wanted to meet with him as soon as possible for advice about how to proceed. [166] Later in the evening on November 15, Professor Lyon sent an e-mail message to A.B. reporting on the discussion. The message read in part: [A.B.] I've just gotten off the phone with Gage Averill, the Dean of Arts. . . . He will contact Steve tonight and ask

him to step aside voluntarily; if Steve doesn't do that, Gage will communicate with Martha Piper (President of UBC) to make that happen tomorrow. What he will require of Steve is threefold: no contact with students, cannot come to campus, must step down as Chair pending the investigation to come. He asks me to communicate directly to you that he's pushing to make this happen as fast as possible, your safety is his first priority, and the University should be in touch with you soon regarding next steps. I've learned that Steven plans to be in Toronto on Wednesday to meet with his publishers. I strongly urge you to remain away from home for the next couple of days until we know he's left the city. I'm always a phone call away, and will be in touch with you daily and convey what I know. I'm so very sorry this horror continues, but please know that so many more of us are on your side than even just a few days ago. Back in touch very soon - hugs - Annabel [167] On November 16, 2015, Dean Averill sent an urgent e-mail message to Mr. Galloway, which read: Dear Steven: I left a message on your cell phone this morning but want to reach you as soon as possible, so I am sending this email as well. Allegations against you of sexual assault and harassment have been brought to my attention. We take any such allegations seriously, and we will have to investigate. I advise you to seek the

counsel of the Faculty Association. In the meantime, I need to take certain steps, which include: -- I will be asking President Piper to suspend you with pay pending investigation under section 10.02 of the Collective Agreement -- I will require you to step aside immediately as Chair. I will appoint an acting Chair. -- I will also require you - and this is of the utmost importance - to have no student contact until further notice. -- You are expected to do nothing that could be construed as retaliatory against possible student claimants -- Any other duties as a teacher or supervisor will be taken care by the Program in the meantime, and we require your cooperation in this to ensure the students are not detrimentally affected in their studies. I appreciate that these are allegations, and, pending the outcome of the investigation, I will endeavour to protect [your] privacy and reputation as much as possible. I will still need to talk to you at the earliest possible time. Sincerely Gage [168] Mr. Galloway recalled speaking to Dean Averill on November 16, shortly after receiving the Dean's e-mail. Mr. Galloway was then in Ohio for a speaking engagement. As Mr. Galloway recalled, Dean Averill repeated much of what was in the e-mail message. As Mr. Galloway recalled, during the conversation, he disclosed to the Dean that he and A.B. had had an affair, and he recalled apologizing to

the Dean for it. As Mr. Galloway recalled, the Dean told him that he could not discuss anything about the allegations with Mr. Galloway, but that the Faculty Association would be Mr. Galloway's "point person." As Mr. Galloway recalled, the Dean did not say who had made the allegations against him. However, Mr. Galloway suspected that the person was A.B., and that was the reason why Mr. Galloway had told the Dean that he and A.B. had had an affair. [169] As Mr. Galloway recalled, after speaking with the Dean, he attempted to reach colleagues, specifically Professor Lyon, by phone. However, they either did not respond at all, or deflected inquiries about what was going on. As Mr. Galloway recalled, when he finally spoke to Professor Lyon, she did not acknowledge she was aware of the allegations against him. Mr. Galloway recalled that he confessed to Professor Lyon that he and A.B. had had an affair. After November 16, Professor Lyon never spoke to Mr. Galloway again. [170] On November 18, 2015, a memo was issued by Dean Averill to faculty, staff and students of the Creative Writing Program (the "November 18 Memo"). The memo read in part: Serious allegations have come to the attention of the Creative Writing program and the Dean's Office, and under Article 10.02 of the Collective Agreement, Associate Professor Steven Galloway has been temporarily suspended with pay pending an

investigation. Prof. Galloway has also been removed temporarily from his duties as chair; Associate Professor Annabel Lyon and Professor Linda Svendsen are serving as Acting Co-Chairs of the unit. We will be proceeding with the advice of Faculty Relations to carry out the investigation. The usual process involves hearing the complaints, providing the respondent with an opportunity to respond, and making a determination on the allegations. To observe due process and to respect the privacy of the individuals involved, this process is confidential. Please keep in mind that the investigation has not yet commenced and no findings have been made about any wrongdoing by Prof. Galloway. Our priority is attending to the safety, health and wellbeing of all members of our community. If you ever have information that is concerning to your safety and wellbeing, we encourage you to seek the support available through Counselling Services and your program as well as the Dean's Office. . . . If you have questions about any part of the process, please contact Kathryn Harrison, Associate Dean Faculty and Equity [e-mail redacted] and/or Allison Matacheskie, Director of Faculty Relations. The University is committed to handling the investigation in the most expeditious way for the benefit of all involved. [171] Immediately, and over the next few days, numerous media outlets reported UBC's

suspension of Mr. Galloway and quoted the phrase "serious allegations" from the November 18 Memo. For example, a story in the National Post on November 19, 2015 carried the headline: "UBC suspends prof and bestselling writer Steven Galloway amid 'serious allegations'." (k) Ms. Rooney contacts individuals concerning complaints about Mr. Galloway [172] In the meantime, and starting about November 14, 2015, Ms. Rooney began contacting individuals, some of whom had been identified for her by A.B., concerning complaints about Mr. Galloway. The morning of the November Meeting, Ms. Rooney and Professor Lyon also discussed Ms. Rooney's unpleasant experiences with Mr. Galloway and Ms. Rooney's report that there were others who had been sexually harassed (and in one case, physically assaulted) by Mr. Galloway. [173] Ms. Rooney told at least some of the people she contacted (including Erin Flegg and Sierra Skye Gemma) that A.B. had told her that she had been raped by Mr. Galloway (this is the foundation for Rooney No. 1). As Ms. Rooney recalled, she had explicit permission from A.B. to communicate this to others. Indeed, Cara Woodruff, one of the women who spoke with Ms. Rooney, recalled Ms. Rooney telling her that: Mr. Galloway had "violently raped" A.B.; A.B. was commencing proceedings against Mr. Galloway with the support of faculty at UBC; A.B. and Ms. Rooney were putting together a

larger complaint document to "bolster or "support" A.B.'s allegations against Mr. Galloway; and A.B. had provided Ms. Rooney with a detailed account of the violent rape and other allegations of sexual assault and harassment, and had done so approximately two years earlier. [174] On November 19, 2015, A.B. sent an e-mail message to Ms. Rooney, which included a message posted by Laura Kane, a reporter with Canadian Press, inquiring whether "former or current UBC Creative Writing students would like to talk to me about Steven Galloway," along with Ms. Kane's contact information. [175] On November 19, 2015, Ms. Rooney sent out a "mass e-mail" message to about nine individuals. The message read in part [all sic]: . . . If you're receiving this email, it's because you've either experienced or witnessed incidents that can speak directly to our subject's character. I strongly encourage you to anonymously reach out to Laura Kane, a reporter with the BC bureau of the Canadian Press. She left this message on Facebook: "If former or current UBC Creative Writing students would like to talk to me about Steven Galloway, I can be reached at [redacted]. Anonymous and off-the-record comments welcome too. Sorry for what you're going through - take care." I just spoke with her, and she great. A very safe person to talk to. Warm and empathetic and well-versed in these issues. The range of abuses

I've heard over the last week are multiple and sad. They have left me feeling terrible and worried. You can remain anonymous and your story will still have an impact on what happens in the Creative Writing department. Right now, it is just one woman against an institution. Forgive my optimism, but I believe in this moment we have the power to disrupt traditional narratives. . . . [176] Ms. Woodruff also received a separate e-mail from Ms. Rooney, with the same message. [177] However, Ms. Rooney had second thoughts about sending out this e-mail, and, after a few days, she sent another, apologizing for suggesting people contact Laura Kane. [178] Ms. Rooney had simply been contacting individuals on her own, based on her discussions with Professor Maillard and Professor Lyon. However, after Mr. Galloway's suspension was announced, UBC's Equity Office prepared a letter for Ms. Rooney to distribute to individuals who might have complaints against Mr. Galloway. [179] On November 24, 2015, Professor Lyon forwarded to Ms. Rooney by e-mail a letter from Sara-Jane Finlay, PhD, of UBC's Equity Office, addressed "To Whom it may concern." The letter began: You are receiving this letter from me because the person delivering it to you thinks you may have a complaint against Professor Steven Galloway. As you are likely aware, the University is investigating a complaint against Professor

Galloway which will commence shortly. . . . In contrast to what Ms. Rooney had been telling people, the letter said nothing about the details of A.B.'s complaint against Mr. Galloway. [180] In Professor Lyon's covering e-mail message to Ms. Rooney, Professor Lyon said in part: Here finally is the letter that the University would like you to forward to the other possible complainants. . . . . . . If you are still going to distribute [the letter], they [the University] ask that I please advise you that it is not to be broadly distributed but just to the persons that you believe may have a complaint. (l) UBC engages the Honourable Mary Ellen Boyd to investigate the allegations against Mr. Galloway; the UBCFA brings a grievance on Mr. Galloway's behalf arising out of his suspension [181] By the end of November 2015, UBC had engaged the Honourable Mary Ellen Boyd, a retired justice of the B.C. Supreme Court, to conduct an "impartial, full and complete investigation of certain allegations involving Mr. Galloway," including A.B.'s allegations. I will refer to this as the "Boyd Investigation". The Boyd Investigation resulted in the "Boyd Report," which I will discuss in more detail later in these Reasons. [182] The terms of reference for the Boyd Investigation included the following [underlining and italics in original; Mr. Galloway is the "Respondent"]: 1.0 Terms of Reference: The

following Terms of Reference were established by Dean Gage Averill on November 25, 2015: 1. The Investigator will investigate the allegations in the context of relevant University policies and statements, including the UBC Statement on Respectful Environment for Students, Faculty and Staff (RES), the University Policy on Discrimination and Harassment (Policy 3) and any other University guidelines and determine, on a balance of probabilities, whether any misconduct or any breach of the Policies, University guidelines has occurred. The allegations will be provided to the investigator in a written document 2. The Investigator will investigate using any means she deems appropriate in the circumstances, subject to the principles of procedural fairness. This will include determining who she should interview and any documents she requires to be produced. . . .

4. The Respondent shall be entitled to be accompanied by a representative of the Faculty Association. Any other party involved in the investigation may have a support person present at any time during the investigation process. . . .

5. If new allegations arise during the course of the investigation, the Investigator will consult with the Dean or his designate to determine whether the investigation should be broadened to include new concerns or allegations. If new allegations are introduced, the Respondent shall be provided with an appropriate opportunity to review the allegations prior to providing a response. . . .

7. Upon completion of the investigation, the Investigator will deliver a confidential written report to the Dean containing a summary of the evidence considered and the findings of fact and conclusions arising therefrom, including her determination of whether any misconduct or any breach of the Policies and University guidelines has occurred.

8. Although the Investigator will make findings of fact and conclusions based on her investigation, the final determination with respect to the appropriate response to the findings and conclusions rests solely within the discretion of the Dean and as appropriate, the President.

9. The University respects the sensitive nature of the information that individuals may provide in this investigation. Accordingly the Investigator will carry out the investigation with sensitivity to all concerned and will share information only on a "need-to-know" basis and only to the extent necessary to ensure a fair investigation, recognizing that while confidentiality is expected in this process it cannot be guaranteed. Except as described above or with the consent of the Dean, the Investigator will not disclose her findings of fact or report. [183] According to the Boyd Report, Ms. Boyd received A.B.'s written complaint concerning Mr. Galloway on December 7, 2015. [184] On December 9, 2015, Mr. Galloway signed a confidentiality agreement in connection with the Boyd Investigation. The terms of the agreement were as follows: WHEREAS: a. The University of British Columbia ("UBC") has engaged an investigator (the "Investigator") to conduct an investigation into allegations against Professor Steven Galloway (the "Allegations"), b. In accordance with the Confidential Terms of Reference, the Investigator may provide Prof. Galloway with confidential personal information about other individuals, c. Under the Freedom of Information and Protection of Privacy Act, UBC is obligated to make reasonable arrangements to protect personal information, d. The purpose of this Agreement is

solely to set out UBC's expectations for confidentiality, not to govern the conduct of the investigation process. Prof. Galloway agrees as follows: 1. The Investigator will provide Prof. Galloway with information about the Allegations, including the identities and other personal information of individuals who have made these Allegations (the "Third Parties"), in accordance with the Confidential Terms of Reference.

2. Subject to section 3 of this Agreement, Prof. Galloway will not disclose any information that might reveal the identities of the Third Parties.

3. Nothing in this Agreement shall compromise Prof. Galloway's ability to disclose information to the extent necessary to: a. defend himself against the Allegations, b. seek advice from his professional advisors, and c. comply with any legal disclosure rights or obligations. [185] In addition to the Boyd Investigation, and pursuant to the terms of the collective agreement between UBC and the UBC Faculty Association (the "UBCFA"), the UBCFA brought a grievance on Mr. Galloway's behalf by letter dated December 9, 2015 (the "First Grievance Letter"). [186] The First Grievance Letter read in part: The Faculty Association hereby initiates a grievance . . . regarding the University's actions and conduct respecting allegations against Professor Steven Galloway. The University's actions and conduct have resulted in a breach of his privacy rights under the provincial Freedom of Information and Protection of Privacy Act (the "Act"). The University's actions and conduct have also breached Articles 6 and 7 of Part 1 of the Collective Agreement, and have caused serious and irreparable reputational damage and financial loss to Professor Galloway. Finally, the University's actions and conduct constitute disciplinary responses to Professor Galloway. The University's posting of the memorandum from the Dean of Arts, Gage Averill, advising of Professor Galloway's suspension on a public website

breached his rights to privacy in employment matters. By posting this memorandum, the University has released personal information relating to Professor Galloway's employment status, a clear breach of the Act and the Collective Agreement. Furthermore, the Faculty Association takes issue with the Dean and other University representatives engaging in multiple media interviews and other communications over a period of several days regarding this employment matter. During these interviews and public statements, the Dean and other persons in the Creative Writing Department spoke about allegations that had not been fully disclosed to Professor Galloway or the Faculty Association. The Dean's and other persons' comments in the media were wholly inappropriate, and served only to fuel speculation on the nature of the alleged misconduct, resulting in personal and reputational damage to Professor Galloway. . . . (m) In early 2016, and in connection with the Boyd Investigation, Mr. Galloway receives details of A.B.'s claims, notes of the November Meeting and other information [187] On January 6, 2016, and in the context of the Boyd Investigation, Mr. Galloway received A.B.'s "Statement of Evidence." In her Affidavit No. 4, A.B. says that: 48. On January 6, 2016 at 11:29 a.m. PST I provided UBC with an 18-page singlespaced statement that set out my experiences with the Plaintiff in detail.

49. My January 6, 2016 Statement included details recounting my experiences with the Plaintiff, from when I first met him to when I left Vancouver in May 2014. [188] A copy of A.B.'s statement is not attached as an exhibit to her affidavit. However, in the following paragraphs of her affidavit, A.B. describes in graphic detail what is in her statement. It is this statement - the "Rape Narrative" - that A.B. later uses as the foundation for her Art Exhibit, discussed below. As I will also discuss below, Mr. Galloway claims that the reproduction of the Rape Narrative in the Art Exhibit and in parts of the review of Art Exhibit by the defendant Teresa Smalec were defamatory of him. These form part of A.B. No. 2 and Smalec No. 1, respectively. [189] Around the same time, Mr. Galloway, again in the context of the Boyd Investigation, received copies of documents from the November Meeting, including the notes kept by Professor Lee. He did not receive a copy of the CBC Document. By mid-February, Mr. Galloway had also received a copy of a statement given by Ms. Flegg (in which, among other things, Ms. Flegg described what she had been told in November by Ms. Rooney), and a supplementary statement given by Ms. Rooney to Ms. Boyd. Ms. Rooney was an "ancillary complainant" (compared with A.B., the "main complainant") in the Boyd Investigation. [190] Mr. Galloway acknowledged that, by

January 2016, he knew that A.B. had told Professor Lyon and Professor Maillard that he had choked and sexually assaulted her. He also acknowledged that by March 2016 at the latest, he knew that A.B. had reported to Ms. Rooney that he had choked and sexually assaulted her, and that Ms. Rooney was contacting other women associated with the Creative Writing Department to see whether any had claims against him similar to those being made by A.B (this knowledge is relevant to both A.B. No. 1 and Rooney No. 1). Based on the contents of Ms. Flegg's statement, Mr. Galloway knew (or ought to have known) that Ms. Rooney told Ms. Flegg that Mr. Galloway had raped A.B. and choked her (in other words, that Ms. Rooney had stated Rooney No. 1 to Ms. Flegg). (n) The Boyd Report is submitted to the Dean on April 25, 2016 [191] The Boyd Report was submitted to Dean Averill on April 25, 2016. In accordance with the terms of reference for the Boyd Investigation, the Boyd Report was a confidential document. [192] The complete Boyd Report is not part of the evidentiary record before me. Rather, the record contains a redacted version. The findings and conclusions drawn by Ms. Boyd as a result of her investigation are not binding on the court. Rather, Ms. Boyd's findings and conclusions are simply that: findings made and conclusions drawn by her in the context of the investigation she was asked to

undertake in accordance with the terms of reference she was given. In the context of this action, Ms. Boyd's findings are not proof of any of the facts found by her. [193] Despite that, and because of the prominence of the Boyd Report in subsequent events, I will at this point discuss some of the contents of the redacted report that is in evidence. [194] In Section 2.0 of the Report, Ms. Boyd listed and described the three UBC policies that were considered in the Investigation: Policy 13 - Serving and Consumption of Alcohol at University Facilities and Events; Policy 3 - Discrimination and Harassment; and Policy 97 - Conflict of Interest and Conflict of Commitment. Ms. Boyd also considered UBC's "Statement on Respectful Environment for Students, Faculty and Staff." [195] Policy 3 is the most important for purposes of the PPPA Applications. As I noted above, a copy was included in the material handed out at the November Meeting. One of Mr. Galloway's arguments in relation to the defence of qualified privilege raised by A.B., Professor Maillard, Professor Lyon and Ms. Rooney in respect of events in November 2015, is that the defence cannot be valid because no one followed the process described in Policy 3 in relation to reporting A.B.'s claims about Mr. Galloway. Instead of taking A.B.'s claims directly to the Dean of Arts, Professor Maillard and Professor Lyon convened the

November Meeting. Moreover, A.B. and Professor Maillard recruited Ms. Rooney, who had nothing good to say about Mr. Galloway, to contact others about complaints concerning Mr. Galloway, in the course of which she repeated A.B.'s claims that he had sexually assaulted her. [196] In Section 3.0 of the Boyd Report, Ms. Boyd set out the allegations made by A.B. [A.B. is the "Main Complainant" or "MC"; Mr. Galloway is the "Respondent"]: MC makes the following specific allegations in her written Complaint: 1. Between September 2010 and August 2013, MC was sexually harassed by the Respondent. The sexual harassment included unwanted and inappropriate sexual attention, advances, suggestions, comments, demands, and touching.

2. In or about March - May 2011, MC was sexually assaulted on three occasions by the Respondent. The first sexual assault occurred on the Respondent's boat. The second two sexual assaults took place in his office at the University of British Columbia.

3. The sexual assault on the Respondent's boat involved the Respondent choking, shoving and throwing MC.

4. During the September 2011 - April 2012 academic year, the Respondent sexually assaulted MC on two occasions in public locations on campus. On one occasion the Respondent put his hand down MC's shirt. On another occasion the Respondent grabbed MC between her legs. MC states that both sexual assaults were intended to humiliate and degrade MC.

5. Between September 2010 and August 2014, the Respondent engaged in conduct which contravened the University of British Columbia's Policy #13, Serving and Consumption of Alcohol at University Facilities and Events as well the UBC Statement on Respectful Environment for Students, Faculty and Staff (RES), the University Policy on Discrimination and Harassment (Policy 3), by keeping a stocked liquor cabinet in his office at the University of British Columbia, regularly serving graduate and undergraduate students hard alcohol in his office, and convening frequent (sometimes weekly) events at off-campus locations, where he purchased alcohol for graduate and undergraduate students.

6. MC states that the serving of alcohol to students was part of the context and culture of harassment and discrimination to which she was subjected by the Respondent. [197] Then, in Section 3.1, Ms. Boyd described how A.B. amended certain of her allegations: Near the conclusion of this investigation, following disclosure of the Respondents' [sic] evidence, MC filed a Responsive Statement of Evidence in which she substantially amended the allegations advanced at para 1 of the Complaint above. Rather than allege that Respondent sexually harassed her between September 2010 and August 2013, she now said: "My complaint to UBC in this investigative process is that I was sexually harassed in the fall of 2010 and spring of 2011, ending in my being choked and sexually assaulted in the spring of 2011. The two years of sex that followed is the aftermath. l am not asking the investigator to make any finding of misconduct by the Respondent in terms of the abusive nature of the relationship between May 2011 and the summer of 2013..." [198] In Section 4.0, Ms. Boyd described how the complaints arose. Some of that background has been set out above. Then, in Sections 5.0 and 5.1, Ms. Boyd described the process followed in the investigation, including (in Section 5.1) her reasons for refusing a request by A.B.'s counsel (Ms. Birenbaum) to file expert evidence from a psychological expert. Ms.

Boyd said in part: Finally, and more substantively, in light of the Complainant's significant amendment of her substantive allegations in her Responding Statement of Evidence (which I will address below), the issue of whether or not MC's behaviour was normative in the post spring 2011 period (during which there is no dispute the parties were involved in an affair) no longer arose. MC has specifically noted she is not asking the Investigator to make any finding of misconduct by the Respondent for the period May 2011 to the summer of 2013. [199] In Section 6.0 (which is relatively brief), Ms. Boyd commented generally on credibility and witnesses. Ms. Boyd referred to a passage from the very well-known and often-cited case of Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.). She commented that she based her findings on the civil standard of proof, that is, proof on a balance of probabilities, and that a fact may be "proven" when the evidence supports a finding that it is more likely than not a certain event occurred. Ms. Boyd also observed that, as a finder of fact, she was entitled to accept some, none or all of a witness's evidence. This is an instruction given to every jury in B.C. [200] In Section 7.0 and the sub-sections that follow, Ms. Boyd then summarized the evidence. She discussed the evidence in terms of "five distinct periods" encompassed by the relationship between

Mr. Galloway and A.B., running from early fall 2010 to summer of 2014. Ms. Boyd said it was critical to note that, in the light of A.B.'s amended allegations, the investigation was focussed solely on the events that occurred during the second and third periods: late fall 2010 to Spring 2011; and Spring 2011. These were the periods in which A.B. asserted that she was subject to Mr. Galloway's sexual harassment and sexual assaults of her. During this discussion, Ms. Boyd reviews and comments on the text messages from Mr. Galloway to A.B. that were read to those who attended the November Meeting. [201] After a detailed discussion and analysis of the evidence concerning the second period (late fall 2010 to Spring 2011), Ms. Boyd concluded (at p. 21): In any case, on a review of the whole of this evidence, l am satisfied many of MC's interactions with the Respondent during the late fall of 2010 into the spring of 2011 constitute sexual harassment, within the meaning of both Policy 3 and UBC's Statement on Respectful Conduct. [202] I pause here to note that Mr. Galloway does not assert that he was defamed by a statement that means or would be understood to mean that he had sexually harassed A.B. Rather, the "stings" of the statements that Mr. Galloway asserts are defamatory of him are that he raped, sexually assaulted and physically assaulted A.B. [203] Ms. Boyd then turned to Spring

2011 and the alleged sexual assaults. She commented that perhaps the most difficult fact-finding task in the investigation concerned A.B.'s allegations that, after the months of pressuring her with sexual advances, Mr. Galloway then violently attempted in February 2011, attempted again in March 2011, and then finally succeeded in May 2011 to consummate the relationship with her by way of sexual assault. [204] Ms. Boyd described three alleged incidents: the "Belafonte incident," said to have occurred sometime in early March 2011; the "Writers' Prom incident," said to have occurred later in March 2011; and the "May 5, 2011 incident." Ms. Boyd described and discussed the evidence before her in respect of each of those incidents. I see no need to do that here. However, because of how matters later developed concerning the Boyd Report, the controversy over its conclusions, and UBC's response to the Boyd Report generally, I will set out Ms. Boyd's conclusions respecting each of the incidents. I emphasize that Ms. Boyd's conclusions are not binding on the court. They are based on Ms. Boyd's assessment of the evidence before her in the context of the terms of reference for the Boyd Investigation. [205] With respect to the Belafonte incident, Ms. Boyd wrote: As I noted earlier, as the finder of fact in this investigation, in determining credibility, I must assess whether each witness'

evidence is "in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions" (Faryna v. Chorny)[.] Here, it is impossible, in the absence of any significant factual matrix, and in the face of evidence which suggests the improbability of the scenario described, to determine whether MC's allegations are probable or improbable. In the end result, while there is no question that after March 2011, MC and the Respondent did engage in sexual activity aboard the Belafonte, I am unable to find, on a balance of probabilities, that the violent event described by MC occurred in March of 2011 or at all. [206] Concerning the Writers' Prom incident, Ms. Boyd wrote: Based on the whole of the evidence, I find that in all likelihood MC and the Respondent did engage in some form of sex that night. However, given MC's admitted consumption of alcohol that night and her inability to recall any of the details of the narrative either immediately preceding or following the incident, I am unable to find, on a balance of probabilities, that the sex was the result of some form of sexual assault or was otherwise non-consensual. [207] May 5, 2011 was the date the author Miriam Toews visited the Creative Writing Department to deliver a formal reading of her work. With respect to the May 5, 2011 incident,

Ms. Boyd wrote: . . . My real difficulty here concerns MC's inability to offer any evidence regarding the factual context in which this event occurred. She has no memory of how she came to find herself on the floor of the Respondent's office. She has no memory of what occurred . . .. In these circumstances, I am unable to make any assessment regarding the credibility of her allegations and whether her narrative is "in harmony with the preponderance of probabilities". In the end result, on a review of all the evidence regarding this alleged incident, I am unable to find, on a balance of probabilities, that this alleged sexual assault occurred. [208] Ms. Boyd then discussed the evidence concerning "Other alleged sexual assaults" in Spring 2011. Again, I see no need to review that evidence here, except to note that Ms. Boyd was provided with an explanation by Mr. Galloway of the voice-mail messages he left for A.B. on November 12, 2015, unlike the attendees at the November Meeting. With respect to her conclusions, Ms. Boyd wrote: . . . To the contrary, the Respondent and MC presented as a couple involved in some kind of intimate consensual relationship which many suspected was an affair. In any case, I am unable to find on the evidence, on a balance of probabilities, that these alleged incidents constitute a series of distinct sexual assaults. . . . I will note here there is a

suggestion that as a result of voice mail messages which the Respondent left with MC on November 12, 2015, he implicitly admitted to wrongdoing, particularly of the sexual assaults. In making my findings regarding the alleged sexual assaults, I have fully considered those voicemail messages, and they do not affect my conclusions. I will address those voice mail messages later in this report. [209] A.B. advanced no allegations of sexual assault or sexual harassment during the periods from May 2011 to Spring 2013 and from Spring 2013 to Summer 2014. As a result, Ms. Boyd made no findings of fact concerning the nature of the relationship between A.B. and Mr. Galloway during those periods. (o) The report of the UBC Sexual Assault Panel [210] In May 2016, the Sexual Violence and Misconduct Policy Act was enacted, and it came into force one year after Royal Assent. In brief, the legislation requires public post-secondary institutions (such as UBC) to institute sexual misconduct polices. The legislation does not require a particular form or process for addressing complaints or reports of sexual misconduct. Rather, it sets out in s. 2 the essential elements that must be addressed in a policy and provides that the policy must be publicly available on the institution's website. [211] In June 2016, a report prepared by the UBC Sexual Assault Panel, containing recommendations for UBC's

president, Dr. Martha Piper, was released. The report, titled "Sexual Assault at the University of British Columbia: Prevention, Response, and Accountability," was prepared (at least in part) in the context of the requirements under the Sexual Violence and Misconduct Policy Act. According to the background and terms of reference described in the report, the panel of report authors was appointed by Dr. Piper in February 2016, with a mandate to "undertake a review of sexual assault and make recommendations for University policy and practice in a report to the President." The panel was made up of five faculty members and one recent PhD graduate, all of whose scholarship or practice (or both) included sexual violence and related issues. The panel chair was Professor Janine Benedet, a Professor of Law at UBC's Allard School of Law. [212] Among other things, the report contains "Some Key Definitions." These include definitions of "Sexual Assault," "Sexual Harassment," "Sexualized Violence," "Rape Culture," "Report & Disclosure" and "Survivor." The definition of "Sexual Assault" states in part: . . . Consent that is obtained through the abuse of a position of trust or authority is not a valid consent. [213] One of Ms. Elliott's statements that is alleged to be defamatory (Elliott No. 3) refers to this report, and its definition of "Sexual Assault." (p) June and July 2016: UBC

terminates Mr. Galloway's employment; media reports; the UBCFA brings a second grievance on Mr. Galloway's behalf [214] On June 18, 2016, UBC terminated Mr. Galloway's employment. Consistent with the confidentiality that governs employment matters, there was no public disclosure of either the termination letter or UBC's full reasons for the termination. [215] However, media reports concerning Mr. Galloway's termination followed over the next few days. [216] For example, an article posted on June 22, 2016 on CBC.ca was headlined "Author Steven Galloway no longer employed at UBC following 'record of misconduct'." The article stated in part: Acclaimed author Steven Galloway is no longer employed at the University of British Columbia following a months-long investigation into what the university calls "a record of misconduct that resulted in an irreparable breach of trust." The Giller Prize-nominated author and tenured associate professor was suspended with pay from his post as chair of UBC's creative writing program due to what the university called "serious allegations." . . . Former B.C. Supreme Court justice Mary Ellen Boyd has been investigating the allegations since November, the university's vice-president of external relations, Philip Steenkamp, said in a statement. The university has received "additional complaints" since the suspension. Boyd delivered a report to the dean

of arts in April and Galloway "did not dispute any of the critical findings," said Steenkamp. . . . "The president concluded that there was a record of misconduct that resulted in an irreparable breach of trust placed in faculty members by the university, its students and the general public," Steenkamp wrote. . . . UBC is not commenting further, saying it must balance the "community's need for information . . . [with] the personal privacy of both complainants and respondents." . . . [217] An article by Marsha Lederman was published in the Globe on June 22, 2016 with the headline "Author Steven Galloway fired from UBC after investigation of 'serious allegations'." The article said in part: Award-winning Canadian author Steven Galloway has been fired by the University of British Columbia, which cited "a record of misconduct that resulted in an irreparable breach of the trust placed in faculty members." His dismissal - which comes without severance or a package - follows a months-long investigation by the university and a retired judge brought in to oversee the file. But the faculty association released a statement late on Wednesday that said all but one of the allegations against Mr. Galloway were not substantiated. Philip Steenkamp, UBC's vice-president of external relations, indicated a principal complainant and then others came forward, but would not disclose the nature of the

allegations, which were identified as "serious" when Mr. Galloway was suspended last November as associate professor and chair of the creative writing program. "I'm absolutely bound by privacy legislation on that point," Dr. Steenkamp told The Globe and Mail. But The Globe has spoken over the past few months with several of the complainants, whose allegations include sexual harassment as well as creating a toxic environment at the program. . . . Ms. Boyd's investigation continued until April 25, when she submitted her report to UBC's dean of arts, Gage Averill. . . . But the faculty association in its statement said it has serious concerns with what it called the administration's "misleading public and private comments regarding Professor Galloway." The statement continued: "We wish to clarify that all but one of the allegations, including the most serious allegation, investigated by the Honourable Mary Ellen Boyd were not substantiated." UBC said it cannot release Ms. Boyd's report due to privacy considerations, but added that it was a "critical element" in its decision. Prof. Averill met with Mr. Galloway after reviewing the report and "Steven Galloway did not dispute any of the critical findings in that report," Dr. Steenkamp said. "And in addition to the allegations which have been investigated by [Ms.] Boyd, the dean also took into consideration other allegations which

were not the subject of the investigation." . . . "The president came to the conclusion that there was a record of misconduct that resulted in an irreparable breach of the trust placed in faculty members by the university, its students and the general public," said Dr. Steenkamp, who released a statement to the same effect. . . . [218] A Canadian Press article by Laura Kane, published in the Toronto Star, was headlined: "Complaints against British Columbia professor include harassment, bullying, threats." The article noted that: [UBC] has not disclosed any details of the allegations Galloway faced or which complaints were found to be substantiated. A report produced by former judge Mary Ellen Boyd after a months-long investigation has not been made public and the faculty association said only one allegation against Galloway was substantiated. [219] According to Mr. Galloway, after UBC terminated his employment, he attempted suicide. His close friend and fellow author Madeleine Thien came to help Mr. Galloway's wife in watching over him. According to Mr. Galloway, at some point during that time, Ms. Thien read a copy of the Boyd Report. [220] By letter dated July 6, 2016 (the "Second Grievance Letter"), the UBCFA brought a second grievance on behalf of Mr. Galloway, arising out of (among other things) the conduct of the Boyd Investigation and public statements made by UBC

representatives concerning Mr. Galloway's termination. The Second Grievance Letter stated in part [italics in original]: . . . The Faculty Association is alleging that there were substantial procedural violations on the part of the University Administration, and others, both prior to and following the investigation conducted by the Honourable Mary Ellen Boyd and the release of the report containing her findings (the "Report"). These procedural violations were highly prejudicial to Prof. Galloway and it can be reasonably inferred that they contributed to the Interim President's decision to terminate Prof. Galloway. . . . Additionally, it is our contention that the content of the University Administration's communications on his termination was misleading and resulted in serious reputational damage and ongoing personal suffering. These communications also constitute another breach of Prof. Galloway's privacy rights under Articles 6 & 7 of Part 1 of the Collective Agreement . . . . . . I'll turn now to address some of the procedural violations, all of which have been prejudicial to Prof. Galloway. Though too extensive to detail in this grievance letter, the Faculty Association has serious concerns regarding the receipt and handling of the complaint by the main complainant; the departmental meeting when the allegations against Prof. Galloway were read aloud to tenure and tenure

track faculty; asking a former student from the department to gather other complaints against Prof. Galloway; and of the acceptance of these complaints despite the fact that they were unrelated to the main allegations and well beyond the timeframe for bringing complaints forward under University policies. . . . Although our procedural concerns arising prior to the investigation are not limited to the issues noted above, these issues have particular relevance and are connected to the reputational and other damages Prof. Galloway has suffered owing to the Administration's communications on this matter. I will now raise some of the concerns the Association has regarding fair and due process that occurred following the release of the Report. . . . Following Dr. Piper's decision to terminate Prof. Galloway, the University Administration embarked on a targeted communication plan. This plan included communication to the complainants, to faculty and staff in the Creative Writing Program, and to the press, which led to the impression that all of the allegations against Prof. Galloway were upheld. This is simply untrue and has caused serious reputational damage, financial loss, and devastating personal harm to Prof. Galloway. What is also egregious about this communication plan is that the University Administration failed to advise the main complainant that her complaint of sexual

assault was not substantiated and did not advise the ancillary complainants that their complaints were also dismissed. . . . The Administration, through the Dean, also advised the complainants that Prof. Galloway had "a record of misconduct that resulted in an irreparable breach of trust...". This information was not only misleading and unnecessary, these statements by the Dean, and others, have deepened the reputational damage and financial loss suffered by Prof. Galloway . . . . . . (q) Fall 2016: public disclosure that the "serious allegations" about Mr. Galloway included sexual assault; media discussion of UBC's handling of matters [221] On September 14, 2016, a lengthy article written by Kerry Gold and titled "L'Affaire Galloway" was published in The Walrus. While earlier media reports had referred to "serious allegations" having been made against Mr. Galloway, the Gold article referred expressly to the sexual assault allegations made against him. The article suggested that the conclusion of the Boyd Investigation was that: Only one complaint stuck: Boyd determined that Galloway had conducted an inappropriate relationship with a middle-aged student - a relationship that, according to sources, had lasted several years and spurred speculation among faculty members. [222] On September 26, 2016, Ms. Thien, who (in addition to being a celebrated author) was a UBC graduate with

both a Bachelor of Fine Arts and a Master of Fine Arts in Creative Writing, wrote an open letter to UBC. Her letter was addressed to UBC's president, Dean Averill, Professors Lyon and Svendsen, and also to Mr. Galloway. In the letter, Ms. Thien expressed her deep attachment to UBC's Creative Writing Program and faculty there. Ms. Thien also - and as a sexual assault survivor - expressed her very deep dismay at how UBC and the Creative Writing Department had dealt with the allegations against Mr. Galloway, beginning with the November Meeting, Ms. Rooney's involvement in contacting other students, and continuing with the Boyd Investigation and Boyd Report. Ms. Thien expressed strong views concerning how matters ought to have been handled, and said "I do not believe the actions taken by UBC or Creative Writing have made an environment that is safer for women, for victims and survivors of sexual violence, or indeed for any individual." She asked to have her name removed as a member of the UBC Creative Writing community and as a UBC alumna. [223] On October 28, 2016, the Globe published another article written by Marsha Lederman, this one titled "Under a cloud: How UBC's Steven Galloway affair has haunted a campus and changed lives." The article both quoted from and contained a hyperlink to Madeleine Thien's open letter. The article referred expressly to the allegations of sexual

assault against Mr. Galloway. Ms. Lederman wrote: The investigation [by Ms. Boyd], allegations and report findings have fallen behind a curtain of non-disclosure and privacy. The accusations, never made public by the university, included sexual assault, sexual harassment and other inappropriate behaviour such as bullying. They have been dealt with by the university - not the police, not the courts. The scandal . . . has also inflamed Canada's tight-knit literary community and irrevocably altered many lives. . . . If this is a test case for how institutions handle serious allegations - treating complaints with the gravity they require while also offering due process to the accused, all in an extra-judicial environment - there are many people on every side of the investigation who would give UBC a failing grade: some alumni, Mr. Galloway himself, some of his former colleagues and, even if they're pleased with the decision, the complainants themselves. . . . [224] The article also described Ms. Rooney's criticisms of the Boyd Report, saying that receipt of a heavily redacted version of the Report felt like "yet another slap in the face" for Ms. Rooney. The article described Ms. Rooney's concerns and unhappiness about her own dealings with Ms. Boyd in connection with the Boyd Investigation, as well as with the content of the Report. The article also referred to concerns and

unhappiness expressed by some friends and former colleagues of Mr. Galloway about the process and the outcome. [225] The same day, Ms. Rooney posted on Twitter [all sic]: A woman said she was sexually assaulted. UBC assessed ALL the evidence - including the flawed Boyd Report - and found the truth. This is Rooney No. 2. [226] Immediately, Mr. Galloway's then counsel (Mr. Olthuis) sent a letter to Ms. Rooney. The letter asserted that Ms. Rooney's post was defamatory, demanded a public apology and retraction of her post, and that Ms. Rooney "cease and desist from making any further defamatory comments" about Mr. Galloway. [227] Ms. Rooney apologized and removed her post. (r) November 2016: "UBC Accountable" and "UBC Unaccountable" [228] On November 14, 2016, and under the heading "UBC Accountable," an open letter was published, signed by over 80 notable members of the Canadian literary community. The letter, titled "An Open Letter to UBC: Steven Galloway's Right To Due Process," criticized the Boyd Investigation and UBC's investigation of the allegations against Mr. Galloway, and demanded "due process" for Mr. Galloway. I will refer to this as the "UBC Accountable Letter." [229] The public debate - carried on largely, but not exclusively, on social media - then intensified dramatically. It was variously described as a firestorm and a toxic war of words. The public debate was also

highly polarized, and locating a middle ground was impossible. The possibility that someone could both think Mr. Galloway had not been treated fairly by UBC and have deep sympathy for victims of sexual assault went unrecognized. One underlying assumption appeared to be that none of those who had signed the UBC Accountable Letter was a victim of sexual assault or knew the pain of being a survivor. That was not true. [230] On November 15, 2016, Mandi Gray posted three statements on Twitter, in response to, and in conversation about, the UBC Accountable Letter. These statements (which include Gray No. 1, Gray No. 2 and Gray No. 3) said [all sic]: Prof sexually assaults a student and now a bunch of people are upset that the prof no longer works there!? #ubcaccountable As usual a bunch of women jump to the defence for a dude who has sexually assaulted someone. #typical #galloway @bianaspence @marshalederman about a bunch of Canadian authors jumping to the aid of someone who has assaulted and harassed numerous students. [231] On November 16, 2016, Ms. Rooney published a re-Tweet of a post by author Margaret Atwood that read [all sic]: @zoeSTodd: @josephboyden No one can be asked to believe or not believe a package of unknown things Ms. Rooney then posted the following (the post includes Rooney No. 3) [all sic; ellipsis in original]: I . . . strongly disagree. We can be asked to

believe a person who reports sexual assault. And we can believe her. And we do. [232] The same day, Ms. Gray posted on Twitter about her fundraising efforts to help A.B. and another individual. Ms. Gray said (the post includes Gray No. 4) [all sic]: generosity.com/community fund . . . #UBCacountable we are raising funds to support two women who have legal bills due to @UBC inaction re: sex assault [233] Ms. Gray also posted an exchange (the post includes Gray No. 5, underlined below) she had on Twitter with Mr. Galloway in November 2015 regarding the importance of holding individuals accountable for sexual misconduct, writing [all sic]: I asked #stevengalloway a year ago about rape culture and sexual assault on campus . . . what did he respond? #ubcaccountable I agree - rapists should be held accountable #VAW #stevengalloway #UBC [234] On November 17, 2016, Margaret Atwood published an article in The Walrus titled "Margaret Atwood on the Galloway Affair." A short introduction to Ms. Atwood's article stated: This week, some of Canada's most celebrated writers published an open letter decrying the lack of due process afforded to Steven Galloway, who was released from his teaching and administrative roles at the University of British Columbia after being accused of unspecified acts against women. Following complaints that the expression of such concerns served to marginalize

Steven Galloway's accusers, several signatories rescinded their support. And some members of the Canadian writing community used Twitter to attack Margaret Atwood for lending her support to the letter. What follows is her response to these criticisms, which she shared with The Walrus this morning. [235] Ms. Atwood wrote, in part: My position is that the UBC process was flawed and failed both sides, and the rest of my position is that the model of the Salem Witchcraft Trials is not a good one. (Those accused would almost certainly be found guilty because of the way the rules of evidence were set up, and if you objected to the proceedings you would be accused yourself.) [236] On November 18, 2016, an article titled "Q&A: Professor Zoe Todd on Joseph Boyden, the importance of language, and the Galloway letter" was published on the website of Quille & Quire. The "Galloway letter" was in fact the UBC Accountable Letter. The introduction to the article stated in part: Zoe S.C. Todd, an assistant professor at Carleton University's anthropology department, was hit hard by the open letter [hyperlink provided] written and distributed by Joseph Boyden - and signed by more than 80 prominent CanLit figures - calling for an independent investigation into the University of British Columbia's firing of author Steven Galloway. . . . Todd does not have a direct relationship with the literary

community or Galloway, or any of his complainants, but says she was upset by the letter's language and its implications. As a Metis woman (Treaty 6 Territory, Edmonton), professor, former student, and sexual-assault survivor, Todd felt the need to speak up. She quickly pulled together the Storify post "Rape culture, CanLit, and You," [hyperlink provided] compiling tweets and her own thoughts on the issue. Within a day, the story had been read more than 13,000 times, and has become a popular circulated link on social media. Q&Q spoke to Todd about the letter and her response. [237] Ms. Todd described her initial reaction to the UBC Accountable Letter, saying in part: I had this growing sense of disbelief as I went through the paragraphs. . . . As a professor - that's why I felt I needed to speak up - I wanted to remind people that a nationally celebrated writer is not necessarily the underdog in a situation where students have potentially been exposed to, or allegedly been exposed to, violent or inappropriate behaviour within an academic setting. [238] According to Ms. Todd, what upset her about the UBC Accountable Letter was: The repeated focus on one party. I understand why people close to Steven Galloway - or maybe even people who don't know him but who have signed on - felt moved to ensure there was a fair process in the way UBC handled this situation. . . . But just reading

the letter it was clear that the position of the complainants was diminished in the writing. Though I don't think that was intentional. [239] Then, on November 20, 2016, an open counter-letter (the "Counter Letter") was circulated on-line, expressing concern for the treatment of women who raise allegations of sexual violence, both in general and as reflected in the UBC Accountable Letter, and outrage that the UBC Accountable Letter appeared to care more about due process than the experience of these women. Just as the UBC Accountable Letter and Mr. Galloway came to be associated with the Twitter hashtag "#ubcaccountable," the Counter Letter, and the views expressed there, came to be associated with the hashtag "#ubcunaccountable." [240] The Counter Letter stated in part: We the undersigned are Canadian literature and littérature québécoise scholars, writers, cultural workers and allies.. . . We are also teachers who recognize that our primary duty of care is to our students. That is why we are shocked and appalled by the letter signed by many prominent Canadian writers defending Steven Galloway. We agree that context for Steven Galloway's suspension has not been made public, yet, and that he has not been charged with anything. But we also note that the open letter expresses great concern for Steven Galloway, and no concern for the women who came forward. . . . We are angered by

this letter of "support" because no support was expressed for the female complainant or for the other female students who felt it was safe to make complaints after Steven Galloway was suspended. We are furious that there is only support for Galloway himself because he is a fellow writer, and because he is friends with many who signed the letter. To us, it is outrageous that women in Canada come forward and seek justice for being sexually harassed, raped and bullied at school, work or on the street, and then they are treated as if they were the perpetrators. . . . [241] Among the many, many signatories listed were Dr. Kosman, Ms. Elliott and Ms. Gray. (s) November and December 2016: Mr. Galloway publishes a "Public Apology," followed by more media coverage and social media debate [242] On November 23, 2016, Mr. Galloway, through his legal counsel (Mr. Olthuis), published a "Public Apology" on the UBC Accountable website. The statement was released to the media by Mr. Olthuis. In the statement, Mr. Galloway confirmed that he had been accused of sexual assault. [243] The statement began by explaining that Mr. Olthuis was acting as legal counsel for Mr. Galloway in respect of the process surrounding his dismissal by UBC and related public statements made about him, and that, in relation to Mr. Galloway's ongoing grievance from his dismissal, he was represented by the UBCFA. The

statement continued: We write at this time because the Faculty Association has thus far declined to be interviewed or otherwise make public statements about Mr Galloway's termination by the University. We understand that this is in keeping with its standing practice to preserve and maintain the confidentiality and integrity in such cases for all involved. Mr Galloway shares the Faculty Association's concerns and, out of respect for the process, has thus far avoided making public comment. At this stage, however, the harm flowing from UBC's conduct has reached such a level that Mr Galloway has requested us to clarify the following issues on his behalf. This matter concerns two core issues: on one hand, the rights of complainants to have their complaints heard and, where appropriate, to have them investigated and remedied; and, on the other hand, the right of a person accused to receive due process, including an unbiased investigation and a fair and impartial adjudication. . . . . . . The purpose of this letter, rather, is to respond to the extensive media reports and comments on social media speculating on or making assertions concerning the basis on which UBC purported to terminate Mr Galloway. In December 2015, UBC engaged the Honourable Mary Ellen Boyd to investigate complaints against Mr Galloway, including - with respect to one complainant only - specific complaints of a

sexual nature from 2011. Ms Boyd submitted her findings to the University and the Faculty Association on 25 April 2016. After an exhaustive review of the whole of the evidence, Ms Boyd found on a balance of probabilities that Mr Galloway had not committed sexual assault. Of the other allegations made against Mr Galloway, Ms Boyd found that one constituted a violation of UBC policy. The sole complaint substantiated was that Mr Galloway engaged in inappropriate behaviour with a student. . . . Mr Galloway profoundly regrets his conduct and wishes to apologize for the harm that it has caused. He does not seek to minimize it or to hide from it. He seeks fair treatment for all involved, and an end to the scurrilous assertions and accusations that have proliferated in the vacuum of information. . . . [244] Rather than encouraging a truce among the warring sides, and a reduction of outrage and invective (especially on social media), Mr. Galloway's statement simply - and perhaps predictably - added more fuel to the firestorm ignited by the UBC Accountable Letter. [245] The same day, and over the next several days, numerous media articles reported on Mr. Galloway's "Public Apology," as well as the UBC Accountable Letter. For example, an article published in the National Post on November 24, 2016 was titled "Author Stephen Galloway confirms sexual assault accusation in first statement

after UBC firing." On November 25, 2016, the Globe published another article written by Marsha Lederman titled "How the Stephen Galloway scandal sparked a CanLit civil war." [246] On November 24, 2016, Ms. Birenbaum, counsel for A.B., published an on-line statement in response to Mr. Galloway's "Public Apology." The statement was highly critical of Mr. Galloway. It implied that his apology was insincere, insensitive and self-serving, and that he was unfairly using (and permitting use of) the Boyd Report to shape a public narrative favourable to him. The statement read in part [all sic; the "March 2017 hearing" was the original hearing date for the grievance arbitration]: I am legal counsel for the woman who has been referred to as the "Main Complainant (MC)" in the Galloway investigation. MC has stayed silent since Galloway was suspended, out of respect for the process and the confidentiality of everyone involved. The so-called "secrecy" of the investigation process has protected Galloway, perhaps more than anyone else. MC is committed to preserving the fairness and independence of the March 2017 hearing. Mr. Galloway is instead waging a battle in the press. The public should be clear, that MC's report to UBC was not about a "consensual affair." The allegations that were investigated in this case include that Mr. Galloway sexually harassed and sexually assaulted MC. MC looks

forward to the fulsome airing of the facts which formed the basis for UBC's decision to terminate Mr. Galloway's employment with UBC and to her being able to talk about the details of what happened. . . . . . . Further, quite incredibly, Mr. Galloway who has received Mary Ellen Boyd's investigation report, says MC should not be permitted to see it. He has appealed UBC's decision to release the (redacted) report to MC, saying that it could be "harmful" to his "privacy interests". Mr. Galloway says in his statement that "he seeks fair treatment for all involved." Perhaps he could start by withdrawing his objection to an obvious and fundamental point of fairness to the main complainant, so that she too can see the report that Galloway has paraphrased so extensively and for his own benefit in the national media. . . . [247] The same day, Ms. Birenbaum's statement was reported in the media. For example, CTV News, under the title "Woman who accused Steven Galloway of sexual assault breaks silence," published a story by Laura Kane carried in the Canadian Press. [248] Also on November 24, 2016, Ms. Rooney posted on Twitter (Rooney No. 4): A woman broke her silence about sexual assault today, and the signatories of UBC Accountable are still uploading their stories, as if they matter. [249] Mr. Galloway asserts that two further postings on Twitter by Ms. Rooney, on December 5 and

December 6, 2016, are defamatory. These are Rooney No. 5 and Rooney No. 6. [250] On December 12, 2016, Professor Maillard posted on Twitter (the post includes Maillard No. 4, which is underlined below): The allegations that were investigated in this case included that Mr. Galloway sexually harassed and sexually assaulted MC. This post was still available on the internet and was read by Brad Cran in 2018. [251] Also on December 12, 2016, Ms. Elliott made 22 numbered posts on Twitter, commenting on #ubcaccountable and also on the June 2016 report prepared by the UBC Sexual Assault Panel (referred to above), to which Ms. Elliott provided a hyperlink. The posts begin with the following, and include reference to the recommendations by the UBC Sexual Assault Panel (the posts include Elliott No. 3 which is underlined below) [all sic]: Some thoughts on #ubcaccountable. Putting aside for the fact that they have left up the original letter while acknowledging its harm. I'm still quite confused about how unfocused their intentions are. They want an independent investigation. What then? As reported, they are already being forced under provincial legislation to come up with sexual assault policy and have it in place by May. To prepare for this, they asked a group of experts to come up with recommendations. That report was released in June. (Anyone curious about that report - which EVERYONE

should read - can access it here: tinyurl.com/jgzkveh) [this is a link to a report titled: "Sexual Assault at the University of British Columbia: Prevention, Response and Accountability"]. They outline the ways that UBC's process of dealing with sexual assault can be improved very well, esp considering they only had 4 months to prepare the report. Especially worth noting in the Galloway case is there definition of "sexual assault." It says, "Consent that is obtained through misuse of a position of trust or authority is not valid consent." A certain recent CBC article with an absurd stock photo comes to mind. . . In any case, the report has actionable suggestions for improving the very process #ubcaccountable is supposed to be upset over. However, instead of referencing this work, or asking for concrete implementations, or inquiring after UBC's policy-in-progress [t]hey're asking for an "independent inquiry" - without considering if complainants actually want to go through that process again. Also w/o considering what that would produce: another report. With, I'd hope, more actionable recommendations that UBC can implement or not. There is no demand for reform for the process - which, I'll repeat, is already taking place in accordance with BC law. There is no demand for an admission of fault from UBC or an apology to the parties who have been hurt by their mishandling of

situation. So what, then, is "due process" to #ubcaccountable and how, exactly, will this "independent inquiry" lead to it? . . . [252] In her evidence, Ms. Elliott explained how she was affected by the UBC Accountable Letter and other posts on the UBC Accountable website. Ms. Elliott explained how it appeared to her that, initially, author Joseph Boyden was acting as spokesperson for UBC Accountable, and Margaret Atwood had publicly supported Mr. Galloway through articles and postings on Twitter. Ms. Elliott explained that she knew that both writers were well-connected, and she felt that to come out publicly in opposition to them could have a negative effect on her career. Ms. Elliott explained that, despite her concerns, she decided to engage with Mr. Boyden and Ms. Atwood on social media. According to Ms. Elliott, she explained to each of them her problems with the publications on UBC Accountable, that they had a bias in favour of Mr. Galloway and created the impression that a well-connected and successful author was more important than the student(s) who were making accusations against him. Ms. Elliott explained that, with Mr. Boyden, her concerns were slightly different, in that he was publicly supporting the Inquiry into Missing and Murdered Indigenous Women, while at the same time he was throwing his support behind a man (Mr. Galloway) who was accused of abusing his

position and creating a dangerous environment for young women in his program. [253] On December 29, 2016, Ms. Elliott published another post on Twitter, this time directed mainly at Mr. Boyden (the post includes Elliott No. 2, underlined below) [all sic]: @josephboyden This year you've managed to demonize rape survivors and supporters AND the entire indigenous community! Reconciliation innit (t) 2017: Social media, conferences and #MeToo [254] On January 13, 2017, Ms. Elliott was asked to be the host of a Twitter account called @indigenousXca, which had a new Indigenous host from Canada every week. Ms. Elliott explained that, as host, she chose to discuss the UBC Accountable Letter and Mr. Boyden's support of it, from an Indigenous perspective. She then published a series of 76 posts, which read in part (the posts include Elliott No. 1, underlined below) [all sic] : Ready to talk Boyden, CanLit, accountability and PR? I'm going back to what many have facetiously taken to calling "The Galloway Affair" - a term which I find misleading as hell. Remember that? If not, here's a link to a Quill and Quire interview with Metis scholar @ZoeSTodd so you can catch up. Full URL: [a link to Zoe Todd's article is provided] Boyden still, as far as I know, has not specifically addressed Todd's comments in his highly scripted whirlwind attempt at a comeback tour. In fact, Boyden minimized valid

critiques by indigenous women in an interview with @marshalederman here: [link provided the article "How the Steven Galloway scandal sparked a CanLit civil war"] Not only did he not address these criticisms, he used a ballsy rhetorical trick to dismiss critics as nothing more than online trolls. His exact words: "A lot of people are talking shit about me on Twitter." As though those of us without the clout to negotiate interviews with CBC and Globe and Mail on our terms had nothing valuable to contribute to any conversation. Flash forward a few weeks. CanLit is basically on fire. UBC Accountable signatories screaming about "due process," MRAs have jumped in to back Galloway and company. But those pesky sexual assault survivors and advocates just WOULDN'T SHUT UP. GAWWWWD. So enter the statements authors uploaded onto the UBC Accountable site that try to twist a PR move for Galloway into some high minded call against shady dealings and some very convoluted thing called "due process." Bear in mind, of course, that this whole time Galloway was having a union hearing to make sure that his firing was on the up and up. But I guess that's not "due" enough? Or "process" enough? Idk. This persisted even after the lawyer for the main complainant in the Galloway case confirmed that the allegation wasn't JUST an affair built on an immoral/unethical power dynamic, but an accusation of both

sexual assault and harassment. If you're one of the signatories, this looks pretty bad, huh? So what are you to do? Consult sexual assault lawyers and come out with a new post called "Procedural Fairness for All"? . . . So this brings me back to Boyden. How long were indigenous men and women questioning Boyden about his involvement in this? How long were they asking him to reconcile his unquestioned defense of Galloway on what we now know are allegations of sexual assault and sexual harassment with his very public speaking on the issue of #MMIW?... So. To recap. He wrote the letter, got nearly 80 heavyweights in CanLit to agree to put their name on the letter, doubled down in the face of criticism by indigenous people and sexual assault survivor supporters, decided maybe his first draft wasn't pleasing enough for the audience, got some other people to write a new letter with a less clear bias towards his buddy Galloway, refused to take down the initial letter [255] In March 2017, Dr. Kosman was invited to participate in a panel discussion at the University of Alberta (alongside several other PhD candidates and professors) titled: "Thinking About Accountability: A Panel about UBCAccountable." [256] Dr. Kosman explained how what she describes as the "Galloway Controversy" first came to her attention, probably in the fall of 2016. As she described, her information came from media

reports that a student of Mr. Galloway had reported allegations of sexual assault against him, that he had been dismissed by UBC and that there were legal proceedings between Mr. Galloway and UBC related to his termination. According to Dr. Kosman (Affidavit No. 1): 14. The Galloway controversy garnered a significant amount of attention in my academic circles and in the Canadian literature community generally. I discussed the UBC Accountable letter and the counter-letter with friends and colleagues in my academic network. Many of the signatories of the UBC Accountable letter were women writers whom my friends and I admired, like Lorna Crozier, Karen Connelly, and Margaret Atwood. I discussed with friends and colleagues how devastating it must be for survivors of sexual violence to see the names of these authors on a letter that appeared to prioritize the protection of Galloway's rights at the expense of their experience in bringing those allegations forward. I also had conversations with friends and colleagues in which we discussed the UBC Accountable letter as a symptom of a broader culture within both academia and Canadian literature of mistrusting women and prioritizing the voices of powerful men. I was concerned that this was a culture where students in particular were vulnerable and would be afraid to come forward and report experiences of sexual assault or harassment at the hands of their professors, and that the UBC Accountable [letter] would make such reporting even less likely.

15. Around this time, I also learned about other students in Canada who were coming forward with allegations of sexual assault and harassment by other prominent men in Canadian literature.

16. In my experience, the Galloway controversy - including the allegations that had been made against Galloway, UBC's handling of those allegations, and subsequent reactions in the literary community, including allegations against other prominent figures - were engendering a broad and important public discussion about sexual assault and harassment in academia, and particularly in the literary arts. I considered these events to raise considerations about Canadian literature as a culture and a discipline, including the ways in which it is taught, and the ways in which students are impacted by the quality of institutional responses to allegations of sexual assault. [257] Dr. Kosman explained that, in March 2017, the University of Alberta was promulgating a new policy about sexual violence. She explained that, in that context, the panel was convened to discuss issues related to the UBCAccountable Letter, the Counter Letter and the University of Alberta's new sexual violence policy. [258] Promotional material described the panel in these terms: As the University of Alberta introduces a new policy about sexual violence, join this panel discussion about the UBCAccountable letter that shook the CanLit world. Panellists will discuss UBCA and the Steven Galloway controversy, the counter-letter that advocated for survivors, and our University's new sexual violence policy. [259] On March

29, 2017, and during the panel discussion, Dr. Kosman expressed her views on issues such as institutional responses to allegations of sexual violence in university settings, the power imbalances between professors and students, abuses of that power (such as sexual assault and harassment), and how educators can address art or artists that are connected with sexual violence in some way. According to Dr. Kosman, the panel discussion was live-tweeted by the Twitter user @AccountablePanl, and the following comment was attributed to Dr. Kosman (the post includes Kosman No. 2, underlined): "You cannot teach a rapist if you do not want to promote rape culture. It is very simple." Dr. Kosman explained that she could not recall her precise words, but she recalled making a statement to that effect. The post was accompanied by the hashtags #AccountablePanel and #ubcaccountable. [260] In her evidence, Dr. Kosman explained that there were two high school teachers who were participating actively during the panel discussion. Dr. Kosman explained that, at one point, the conversation turned to the pervasiveness of rape culture in high schools, and the teachers began discussing the play "A Streetcar Named Desire" by Tennessee Williams. According to Dr. Kosman, the teachers reported that their students considered the character Stanley to be the hero, but the teachers did not appear to note or

grapple in their classes with the fact that Stanley rapes the protagonist, Blanche, during the play. According to Dr. Kosman, and as she recalled, the teachers drew a causal relationship between the students thinking of Stanley as a hero and his rape of Blanche. As Dr. Kosman recalled, these teachers also mentioned that they had many copies of Mr. Galloway's book "The Cellist of Sarajevo," and they asked the panelists if they thought the teachers were allowed to teach the book to their students. As Dr. Kosman recalled, the teachers also asked whether the panelists thought it is possible to separate an artist from his or her work. According to Dr. Kosman, it was in this context that she said "you cannot teach a rapist if you do not want to promote rape culture" (Kosman No. 2). [261] In May 2017, Dr. Kosman attended a panel at the Annual Conference of the Association for Canadian and Québec Literatures at Ryerson University in Toronto, Ontario. The panel was titled "#UBCAccountable: Feminist Past, Present and Futures in CanLit." Dr. Kosman "live-tweeted" the panel discussion on May 29, 2017. Dr. Kosman explained that "live-tweeting" required her, as quickly as possible and in a very short span of characters, to write and post paraphrased versions of the panelists' comments, attributing the comments to the relevant speaker, all as the conversation was ongoing. In the course of live-tweeting the panel, Dr. Kosman posted the following statement, which she attributed to Dr. Erin Wunker: "We will never fully know the scope of Galloway's violence and can never fully account for it." The post was accompanied by the hashtag #UBCunAccountable, and is Kosman No.

1. The post was threaded, meaning it was linked to all of Dr. Kosman's other live-tweets from this panel. [262] By the fall of 2017, the "#MeToo movement," which began with victims of former film producer Harvey Weinstein, had become very prominent. The hashtag #MeToo was also sometimes associated with another hashtag, #timesup. (u) The 2018 Golden Globes and Margaret Atwood [263] On January 7, 2018, Ms. Atwood wore a "Times Up" pin to the Golden Globes. The performer who won an award for her role in the television program The Handmaid's Tale, based on Ms. Atwood's book, dedicated the award to Ms. Atwood. [264] Predictably, given Ms. Atwood's participation as a signatory to the UBC Accountable Letter, these events provoked posts on Twitter that were related to Mr. Galloway. [265] Brit Bachman re-posted on Twitter a thread from @emphathywarrior about Ms. Atwood that stated [all sic]: CanLit could have had its #MeToo moment but it turned into a #ProtectAbusers and #SilenceVictims moment. Ms. Bachman then posted (this post includes Bachman No. 1, which is underlined below): While our friends in the U.S. celebrate Atwood for writing The Handmaid's Tale, they fail to recognize that when given the chance to show support for a survivor of sexual assault, Atwood spat on her +emerging writers across Canada #UBCAccountable #GoldenGlobes [266] Mr. Galloway asserts that, the same day

(January 7, 2018), Ms. Bachman also posted the following on Twitter (this post includes Bachman No. 2, which is underlined below): Search the #UBCAccountable hashtag, there was an open letter interpreted to be in solidarity of a prof who sexually assaulted a student. Atwood defended her signature multiple times by suggesting that some women lie about accusations. [267] On January 8, 2018, Arielle Rombough posted on Twitter (the post includes Rombough No. 1, which is underlined below) [all sic]: @MargaretAtwood please talk about the statements you made in defense of #Stevengalloway after he was fired for sexual assault. You used the "witch hunt" narrative (term coined by the catholic church to defend predators). I can't deny how that affected me. #TIMESUP #GoldenGlobes [268] On January 12, 2018, the Globe reported that more than ten writers (including Madeleine Thien) had removed their names from the "controversial" UBC Accountable Letter. The report stated that: The removal of the names follows a difficult year during which Canadian writers faced off in pitched battles over social media and beyond. [269] On January 13, 2018, Ms. Atwood published an opinion piece in the Globe, titled "Am I a bad feminist?" In the article, Ms. Atwood explained why she had signed the UBC Accountable Letter, and also explained her comparison of UBC's investigation of matters concerning Mr. Galloway

to the Salem witchcraft trials. Ms. Atwood explained that she was alluding to the structure in place at the trials themselves, which she described as "guilty because accused." [270] Around this time, Dr. Anderson made two posts on Twitter. The first (which includes Anderson No. 1, underlined below) on January 15, 2018, in response to another Twitter user, said [all sic]: yes. I can't imagine how triggering and traumatizing it would be to be a survivor at UBC - especially to be the survivor Galloway assaulted - and read Atwood's words. Or to be a younger writer Atwood mentored. [271] The second (which includes Anderson No. 2, underlined below) on January 16, 2018, said [all sic]: For everyone defending #MargaretAtwood here's some context you might have missed IRT why people took issue with her defending #galloway, and falsely claiming he was not receiving due process [hashtags omitted], in particular, it's worth reading the account of the woman #galloway assaulted #metoo #timesup #ubcaccountable [272] Dr. Anderson's posts included links to the UBCunaccountable website and the Counter Letter, and to the Globe article published on November 24, 2016 titled "Woman who accused Steven Galloway of sexual assault breaks silence." (v) The public debate continues [273] On February 5, 2018, The Walrus published an article written by Zoe Whittall titled "CanLit has a Sexual Harassment

Problem." The article was subtitled: "Now, more than ever, we must create an environment in which young writers feel they can come forward." The article began: As I watched this year's Golden Globes, it became clear just how much the status quo has shifted around sexual harassment. Actresses in funereal couture adorned with "Time's Up" pins use their precious acceptance-speech minutes to say enough is enough. [274] The beginning of the article was illustrated with an array of quotations taken from the UBC Accountable Letter, which Ms. Whittall went on to discuss, in addition to discussing Ms. Atwood's participation as a signatory (about which Ms. Whittall was very critical) and other related topics. At one point in the article, Ms. Whittall wrote [underlining added]: It's sticky territory. Attraction and desire are complicated; the last thing I want to do is induce a sex panic. But these issues become even more complicated when one party says an encounter was consensual, and another says it was not. While Galloway has claimed he had a consensual affair with the main complainant at UBC, she has stated her assault accusations were not about an affair at all. Articles on Galloway repeatedly mention that he "had a relationship" with a student . . . [275] On February 6, 2018, in response to a thread on Twitter discussing Ms. Whittall's article, Ms. Kirchmeier posted (in

part): Steven Galloway is widely assumed to be litigious. It serves his interests well to control the narratives which are allowed to be printed . . . Ms. Kirchmeier then, in a new post (which includes Kirchmeier No. 1, underlined below), replied to her original post [all sic]: In contrast, @walrusmagazine previously published a piece so not fact-checked TWO anon sources came out publicly to denounce it. That piece said Galloway had an "affair," which we now know is what he calls raping/sexually harassing a student. But it set the narrative for 1 + year [276] The "previously published" Walrus article was the one written by Kerry Gold and published in September 2016. [277] On February 9, 2018, The Walrus published a revised version of Ms. Whittall's article. The paragraph beginning "It's sticky territory" was revised. The sentence beginning "While Galloway has claimed he had a consensual affair with the main complainant . . ." was removed, and the balance of the original paragraph rewritten. [278] On February 11, 2018, Professor Maillard posted on Twitter (the post includes Maillard No. 2, underlined below) [all sic]: 1. Sorry, but I've got to comment on the Zoe Whittall article again. Revised, it's great writing, yes, but the editors at Walrus "fact-checked" out some important things. I don't have time to comment on more than one of them, but it's a very serious omission 2. The

original read: "While Galloway has claimed he had a consensual affair with the main complainant at UBC, she has stated her assault accusations were not about an affair at all." The fact that should not have been removed. Shame on you Walrus. Link follows. [279] On February 18, 2018, Ms. Elliott created a "YouCaring" fund to raise funds for women who spoke publicly about alleged abuse who might then be faced with defamation actions. The fund description (which includes Elliott No. 4, underlined below) stated in part: The Story I've been incredibly troubled by the rise in Canada of powerful men using their access to lawyers to silence the women accusing them of abuse and sexual assault. Whether it's the victims at Concordia who have had to shut down their social media for even daring to speak the name of their abusers, or the main complainant in the Steven Galloway case, or any number of other women who are being silenced by libel laws in Canada, we cannot let these men use their money and power to keep women quiet and remain unaccountable. These women should not be alone in their fight to give voice to their stories. This fund is hoping to assist with lawyers if they are sent cease and desist letters, and (hopefully) to fund any lawsuits that may arise as a result of speaking back to abuse. [280] A few days later, an article appeared on Flare.com and its sister site

Chateleine.com titled: "This New Fundraising campaign Aims to Help Canadian Women in the #MeToo Era." The article referred to Ms. Elliott's funding-raising initiative. [281] On March 14, 2018, Ms. Gray posted on Twitter (the post includes Gray No. 6, underlined below) [all sic]: There is an interesting contradiction between supporting those who are sexually assaulted when they are faceless & nameless "survivors" and the absolute erasure of those who have come forward. See: complainants in Galloway & Ghomeshi cases. (w) June and July 2018 - Mr. Galloway receives an award of damages in the grievance arbitration against UBC; media coverage follows, including an article written by Mr. Galloway [282] On June 8, 2018, Mr. Galloway was awarded $167,000 in damages in the grievance arbitration brought on his behalf against UBC by the UBCFA. The arbitration dealt with the issues raised in both the First Grievance Letter and the Second Grievance Letter. [283] The arbitration hearing was a lengthy one, beginning in September 2017 and ending in April 2018. Part-way through (and as described in the award), the parties agreed to a revised process for determining the outstanding issues, in order to reduce the number of days that would otherwise have been required to complete the case. As part of the revised process, the UBCFA withdrew its claim on behalf of Mr. Galloway for reinstatement, as

well as the claims for compensation for lost income and benefits. As a result, and as the arbitrator noted in the award, the issue of whether UBC had cause to dismiss Mr. Galloway was no longer contested as part of the arbitration. [284] In accordance with the revised process (and as the parties agreed), the arbitrator issued his award in summary form, essentially stating his findings and conclusions only, and wrote: I have considered the record before me - particularly the extensive documentary materials tendered by both parties - in light of the representations by counsel. I find that certain communications by the University contravened the Grievor's [Mr. Galloway's] privacy rights and caused harm to his reputation. He should accordingly be compensated with an award of damages. I have decided to set the amount at $167,000 after taking into account all of the relevant and countervailing considerations. [285] In the award, the arbitrator also reminded the participants that: Finally, in accordance with the Consent Order dated March 23, 2017, the entirety of the proceeding before me continues to be strictly confidential and will not be disclosed unless required by law, except for matters recorded in this award. Consistent with that Order, no party will comment on the proceeding or the reasons for the Grievor's dismissal. Should any party intend to make a public disclosure which

might be contrary to the confidentiality terms, it will provide reasonable advance notice to the other parties and any disagreement will be referred to me for a binding determination before the disclosure is made public. [286] The entire award (including the cover page) was four pages. [287] The same day, Mr. Galloway gave an interview to Gary Mason of the Globe. Mr. Mason's article was titled: "Author Steven Galloway breaks silence: 'My life is destroyed'." In the article, and for the first time, Mr. Galloway provided, and Mr. Mason described, details of the three separate incidents of sexual assault that A.B. had levelled against Mr. Galloway and which were considered by Ms. Boyd as part of the Boyd Investigation. [288] On June 18, 2018, the Globe published Ms. Elliott's article titled "After Galloway: we must value a woman's pain above a man's reputation." [289] In June and July 2018, several media outlets (including the Globe, the National Post, and Quillette, which published a lengthy article written by Brad Cran) published articles supportive of Mr. Galloway. The Applicants say that these articles, to the extent they imply that, as a result of the Boyd Investigation, the only thing Mr. Galloway was found to have done wrong was have a consensual affair with A.B., seriously misrepresent findings in the Boyd Report. [290] On July 13, 2018, Mr. Galloway published an almost

4,000 word article in the National Post. The article was titled: "Steven Galloway in his own words: I'm not a monster. I won't let false allegations define me." (x) Summer 2018 - A.B.'s Art Exhibit and the Smalec Article [291] In early July 2018, an art exhibit created by A.B. was about to open at a small gallery in a large U.S. city. In the light of the publication ban, I will refer to the art exhibit as the "Art Exhibit" and to the gallery as the "Gallery." [292] A.B. created the Art Exhibit quoting and using text from the Rape Narrative that she provided to Ms. Boyd in January 2016. (In her "artist's statement" for the Art Exhibit, A.B. expressly described that statement as her "rape narrative.") A.B. explained that she took the pages that she had prepared for Ms. Boyd - the Rape Narrative - and did a "radical redaction." She then scaled up the text remaining and placed it on about 51 black panels, about 37 inches by 48 inches in size. [293] Text on one of the panels (titled "No One") stated [ellipsis shows space on the panel]: He was a famous author . . . I was no one [294] Text on another panel (titled "Office Floor") stated in part [ellipsis shows spaces on the panel] (this panel includes part of A.B. No. 2): March . . . On my back on the floor of his office He straddled over me . . . pushing up my dress . . . "Please no please no" . . . begging him no . . . May . . .

came to naked . . . on the floor [text continues] [295] Text on another panel (titled "Final Year") mentioned that the man had been "promoted to Chair." [296] The publicity, including on-line publicity, for the Art Exhibit identified A.B. by name, and there was no attempt by A.B. to use an alias. A.B. worked with the Gallery owner in drafting written publicity, and, at A.B.'s request, Ms. Gray offered suggestions. Publicity was posted on both the Gallery's website and A.B.'s own website, which also used her name. [297] For example, the statement on the Gallery's website began (this includes, in the quote of the artist's statement, part of A.B. No. 2, underlined below): [The Gallery] will open a pivotal and daring exhibit by [A.B.] on July 6, 2018. [The Art Exhibit] derives from what [A.B.] refers to as her Rape Narrative, a narrative (and term) sanctioned by a university after she disclosed being sexually harassed, assaulted and abused by a professor. . . . "Every time you read it, you're demoralized. It's not just what he did but that he was able to do it for so long. The Rape Narrative spans six years, and the losses keep piling up. It makes you sick and sad and filled with rage that it went on for so long. But that's not on you. That's on him," [A.B.] recalled in her artist statement. . . . [298] The Gallery's statement was illustrated with panels from the Art Exhibit,

including the panels referred to above. Members of the public were invited to an opening reception at the Gallery on July 6, and informed that "a limited edition catalog of the exhibition will be published, accompanied by a book release event in the second half of the exhibition." [299] According to Mr. Galloway, the Gallery's statement and A.B.'s "artist's statement," identifying A.B. by name, were still available on-line as of February 2019. [300] In the publicity, which included her artist statement, A.B. was careful never to mention either Mr. Galloway or UBC by name, and she removed details about her attendance at UBC from her artist's biography (although her receipt of a scholarship and award in the "UBC Department of Creative Writing" in 2012 was included, and details about her attendance at UBC were available on her own website). The text used in the Art Exhibit did not include such references or details either. [301] A.B.'s artist statement (in addition to the quote above) stated in part (part of A.B. No. 2 is included, underlined below): You are no longer able to create anything new. When an idea finally comes to you, you wince and feel sick because you know it's the only thing you can do and you don't want to do it. If you can't create, then you have to subtract, take the already existing radioactive material in the Rape Narrative and transform it. Redaction is a

violent act. It was wielded against you and others, against every woman who comes forward. You wince again and bear down, look directly at what you don't want to look at. You read and redact the document over and over with your jaw clenched until it aches. In doing this some of the power it has over you is diminished and some of the power he has over you is diminished as well. But as you print these pages on a large scale and imagine putting them up in a public space for anyone to see, knowing anyone can walk into that gallery space, you get really scared. It's terrifying to try to exist in the world again, because not only is the man who raped you determined to punish you, so are many powerful people who support that man. These people you once admired now frighten and disgust you. "The truth will come out," they say, and "women lie." They are determined to be right no matter the cost. . . . [302] Another panel (panel 12) stated (this is part of A.B. No. 2) [ellipsis shows spaces on the panel] no . . . he forced me . . . on my knees . . . put his . . . in my mouth . . . took a cell-phone photo. He said . . . "I better make sure I trash this before I go home." [303] Ms. Gray attended the Art Exhibit and published two posts on Twitter on July 6, 2018. One (referenced in Gray No. 7, underlined below) read in part: I am in [city redacted] for the opening of my friend [A.B.]'s solo

exhibition at #[Art Gallery] titled [Art Exhibit]. This is a very important installation about campus sexual violence. [304] This post showed 117 "likes." [305] A second post (also referenced in Gray No. 7) read: In #[city redacted] for the opening of #[the Art Exhibit] at [the Gallery]. Such an important exhibition about the power of redaction in sexual assault investigations on campus. #visualartist #feministart #[city redacted]art This post included a photo of one of the panels (Panel 6) in the Art Exhibit, showing how A.B. had mounted text taken from the Rape Narrative. The text in the panel was readable in the photo. [306] The Art Exhibit was the subject of an article and review published by Teresa Smalec in an on-line journal on August 3, 2018 (the "Smalec Article"). The title of the Smalec Article used the hashtag "#MeToo," in addition to identifying A.B. by name (which Ms. Smalec does throughout the Article). In view of the publication ban, and because the Smalec Article is still available on-line, I will avoid stating the full title of the Smalec Article and other details about where it was published. [307] On July 24, 2018 (before publication of the Smalec Article), Ms. Smalec posted several times on Twitter, using the hashtag #ubcaccountable. In one of the posts, she identified A.B. by name and mentioned that she was "almost finished" the Smalec Article. According to

Ms. Smalec, she learned about the Art Exhibit on Twitter, via #ubcaccountable, from "supporters" of Mr. Galloway, and she was aware that Mr. Galloway was one of the prominent topics on UBC Accountable. [308] The passages from the Smalec Article that Mr. Galloway says are defamatory of him are set out in Appendix I. However, and as I discuss below, context is often important in determining whether a statement carries a defamatory meaning. For that reason, I quote some parts of the Smalec Article here [Smalec No. 1 is underlined]: [A.B.'s] installation, [Art Exhibit, with hyperlink], opened on July 6, 2018 at the [Art Gallery, with hyperlink] in [redacted] and remains on view until August 26. Some might be tempted to interpret [A.B.'s] project as a personal narrative emerging out of the #MeToo movement, since its subject matter is a student's reported sexual harassment and sexual assaults at the hands of an unnamed professor. Yet despite the life material that clearly informs this piece, it is also crucial to acknowledge [Art Exhibit] as art, which is always linked to an artist's aesthetic and political choices. Additionally, [A.B.'s] installation is not simply an individual story; in fact it never even identifies the student. . . . As a performance scholar, my job is not to defend or contest the veracity of the artwork's content. The installation is not on trial. Instead, I

examine [A.B.'s] representational choices, consider her intended audience, and the sociopolitical effects of her approach. . . . Mounted on high white walls within the narrow exhibition space, [A.B.'s] black panels and shocking lines of text invite us to witness and believe. Yet the very process of redaction that underlies [A.B.'s] aesthetic soon propels us beyond what is easy and visible-beyond the stark black-versus-white surfaces of this piece. [Art Exhibit] derives from what [A.B.] calls her "Rape Narrative": a document that the artist wrote as part of a larger investigation into a professor's alleged misconduct. In her artist's statement, [A.B.] writes that investigators redacted parts of the larger university report that included her narrative. . . . After several years of feeling stripped of agency, unable to create anything new, the artist decided to revisit her narrative and subtract from it on her own terms. . . . [Art Exhibit] features approximately thirty-five black panels streaked with jagged white lines and dots. Inside these [redacted] boxes is the digitally rendered, stripped down text that remains of [A.B.'s] original narrative. . . . For example, the installation's opening panel is titled "Evidence." The panel is almost entirely black, except for the one word, "Evidence," illuminated at the top. . . . A recent article in the Globe and Mail reports that

Canadian police "discarded 14% of sexual assault accusations as unfounded" in 2017. . . . Given this prevalent distrust of claimants, it is not surprising that weeks, months, or even years pass before women report their assaults. . . . In short, [Art Exhibit] highlights a common problem that many complainants face - the inability to substantiate claims of assault - especially when the subjects of their complaints are known to them. Journalists as well as keyboard warriors often confuse or deliberately conflate "unsubstantiated claims" with "false accusations," unfairly or unwittingly portraying such claimants as liars. Panel 15 . . . states that the student wanted to "file a confidential report" early on. . . . Meanwhile, the bottom half of the panel jumps ahead to the student's "final year." We learn that the professor who reportedly assaulted her was promoted. This panel hints at a system that protects reported abusers while asking those who seek safety and justice to postpone timely documentation. . . . . . . Panel 6 reports more unsavory behaviour on the professor's part. This time, in a move that is surely familiar to students of misogynists, he reportedly criticizes female colleagues, warning his protégé to stay away from them. The amount of text included in this panel is unusual for [Art Exhibit]. Although [A.B.] generally tends toward minimalism, panel 6 reveals how

much the professor has to say about women who could conceivably help and protect the student[.] . . . . . . We can judge [A.B's] narrator (as countless such narrators have recently and historically been judged), but my article, like the material space of [Gallery] is not the place for that. Instead, I aim to listen and engage in civil dialogue about the issues raised by this art. The panels that represent the student's reported assaults are among the most discomforting ones in the project. The third panel, titled "Horriblesecret," is mounted far from the first two panels in that sequence. The top of this panel is dotted with commas and periods, as well as fragments of letters. During my visit to [Gallery], I asked the gallery's curator, [redacted], about those splinters of text. What purpose did they serve. [Curator] told me that [A.B.] wanted to give viewers a visual alternative to the brutality Illuminated near the bottom of the panel - an option to look away. I took that option, though I am not a survivor of rape. Even now, I prefer not to describe the panel's disorienting bottom half, except to say that the student claims her sexual assault became what she perceived as a "horrible secret" that left her "in hell with him." [A.B.'s] protective punctuation recurs in panel 12, "onknees." Again the top half of the panel features only commas and periods. About midway, there is a

single "no." The panel's bottom half, meanwhile, reports a sickening encounter: . . . In writing this review of [Art Exhibit], I initially referred to sexual assaults depicted in the exhibit as "alleged sexual assaults." I did not think about how that term might impact those who have "allegedly" been assaulted until I sent the piece to several friends for feedback. One friend told me how the term "alleged" made her cringe and caused her to feel bad. I felt bad too. I replaced the term "alleged" with "reported," since the exhibit is, in fact, about a report of sexual assault. The displays in the exhibit come from [A.B.'s] "Rape Narrative," requested by her university. . . . . . . In her closing statement, [A.B.] recalls the healing pain of reading and redacting that original document as she prepared it for public exhibition. . . . As a critic, I readily admit that I don't know what happened, and yet I believe [A.B.'s] narrator. I share her fear of her opponents' rage-filled determination to punish her. She reportedly destroyed an esteemed man's life, career, and reputation. . . . [309] E-mail exchanged between A.B. and Ms. Smalec before publication of the Smalec Article are part of the record before me. A.B. read and commented on a pre-publication draft of the Smalec Article, and suggested that Ms. Smalec replace the word "alleged" with the word "reported." (y) Fall 2018: a

second arbitration award is made in Mr. Galloway's favour; Professor Maillard's "Burn" essay [310] On September 25, 2018, the arbitrator issued a supplemental award of damages to Mr. Galloway. The matter came back before the arbitrator because the UBCFA and Mr. Galloway asserted that statements made by UBC after the publication of the first award on June 8 contravened the confidentiality terms governing the grievance process and continued to violate Mr. Galloway's privacy rights. These statements were made in mid-July 2018, following publication of Mr. Galloway's article in the National Post. Before the arbitrator, UBC denied any contravention of the confidentiality terms. UBC asserted that its representative was only responding to public statements made by Mr. Galloway (including his article in the National Post). [311] The arbitrator concluded that UBC had both violated the confidentiality terms (and specifically the term that "no party will comment on the proceeding [i.e., the arbitration] or the reasons for Mr. Galloway's dismissal") described in the First Award, and committed new violations of Mr. Galloway's privacy rights. The arbitrator awarded Mr. Galloway $60,000 for the continued breach of his privacy rights and ongoing harm to his reputation. [312] In the fall 2018, Professor Maillard wrote an essay titled "Burn" for a collection titled "Refuse: CanLit in Ruins,"

edited by Hannah McGregor, Julie Rak and Erin Wunker. [313] In the advance-reading copy of "Burn," Professor Maillard originally wrote (Maillard No. 3): I have received express permission from the Main Complainant to disclose that she has told me her story. I believe her. On the same page as this statement, Professor Maillard referenced (among other things) the Boyd Report, Madeleine Thien's letter to UBC, Kerry Gold's article "L'Affaire Galloway" in The Walrus, and Marsha Lederman's Globe article "Under a cloud." According to Brad Cran, he read all of "Burn" in the fall of 2018, and he immediately understood the statement above to be a reference to the accusation of rape and sexual assault against Mr. Galloway. [314] After Mr. Galloway filed this action, Professor Maillard's statement was removed from the essay, on a without prejudice basis. (z) Mr. Galloway files this action on October 26, 2018 [315] On October 26, 2018, Mr. Galloway filed his notice of civil claim in this action. He identified A.B. by name, as the first named defendant. Some media reports about the filing (for example, in the National Post and on CBC's website) did likewise. [316] On March 20, 2019, with reasons indexed as Galloway v. A.B., 2019 BCSC 395, Marzari J., on A.B.'s application, issued a publication ban and made a partial sealing order on the court file, protecting A.B.'s identity.

6. Mr. Galloway's claims and the defences in play - summary [317] In the Appendices, I have set out Mr. Galloway's claims against each of the Applicants, the "sting" Mr. Galloway pleads in respect of each defamatory statement, and a brief statement of the defence(s) in play. In the Background and Outline of Events above, I have also noted (using the abbreviations in the Appendices) where and when statements were made, and described the context. There are many instances where the statement sued over is only part of a larger communication. The full context is often critical to meaning. [318] I note that for the defamatory statements alleged to have been made by Dr. Kosman, I have followed the allegations and abbreviations used in the notice of civil claim (as amended) (the "NCC"). As a result, the May 29, 2017 statement (the second in time) is Kosman No. 1, and the March 29, 2017 statement (the first in time) is Kosman No.

2. In Dr. Kosman's submissions, the statements were described in chronological order, so that, for example, what I have called Kosman No. 2 is "Statement No. 1." 7. Basic legal principles applicable to the claims and defences in play (a) Defamation claims [319] To obtain judgment in a defamation action, the plaintiff must prove three things: (i) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (ii) that the words in fact referred to the plaintiff; and (iii) that the words were published, meaning that they were communicated to at least one other person. Where the plaintiff establishes these elements, falsity and damage are presumed, and the onus shifts to the defendant to advance a defence in order to escape liability. Defamation is a tort of strict liability, so it is unnecessary to prove that the defendant was careless or intended to cause harm. See Grant v. Torstar Corp., 2009 SCC 61, at paras. 28-29. [320] Any imputation that may tend to lower a plaintiff in the estimation of right-thinking members of society generally, or to expose him or her to hatred, contempt or ridicule, is defamatory. In determining the meaning of a publication and whether it is defamatory, the court may take into consideration all of the circumstances of the case, including any reasonable implications the

words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented. See Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, at para. 62. [321] Madam Justice Dickson explained in Weaver v. Corcoran, 2017 BCCA 160, at para. 68: [68] Words that tend to lower the plaintiff's reputation in the eyes of a reasonable person are defamatory: Grant v. Torstar Corp., 2009 SCC 61 at para. 28. . . . The central question is whether the meaning conveyed by the impugned words genuinely threatened the plaintiff's actual reputation [citations omitted]. [322] Some of the Applicants argue, based on these comments, that statements Mr. Galloway asserts are defamatory cannot be, because at the time the statements were made they did not and could not genuinely threaten Mr. Galloway's actual reputation. They argue, essentially, and especially in relation to statements made after Mr. Galloway's employment was terminated in June 2016, that by that time he had a bad reputation, and nothing anyone said about him would then tend to lower his reputation in the eyes of a reasonable person. [323] However, in Weaver v. Ball, 2020 BCCA 119, Griffin J.A. explained how the comments in Weaver v. Corcoran should be understood, at para. 35: [35] Following the statement of the classic test, this Court in Weaver stated that the

central question was whether the meaning conveyed by the words "genuinely threatened the plaintiff's actual reputation". This phrase did not establish a higher threshold for proving that words are defamatory, as compared to the classic test, nor did it suggest that actual harm to reputation must be proven. Rather, it summarized the two key elements of the classic test stated in Grant, namely, that statements that might merely affect a person's wished‑for reputation or pride, as opposed to a person's actual reputation, are not defamatory, nor are statements that are merely rude, abusive or insulting but that do not tend to affect reputation. [324] Moreover, the law of defamation does not require proof that anyone in fact thought less of a plaintiff as a consequence of the defamation: see Kerr v. Conlogue, 1992 CanLII 924, 65 B.C.L.R. (2d) 70 (S.C.), at pp. 79-80. The test is an objective one. [325] In addition, a defendant wishing to rely on a mitigation of damages based on a bad reputation must plead and prove the material facts. The proof must be based on actual evidence of general reputation, and evidence of particular acts of alleged misconduct is not permitted. See Nazerali v. Mitchell, 2018 BCCA 104, at paras. 53, 66, 68-69. [326] Expressions alleging, even by implication or insinuation, criminal conduct are extremely serious and damaging to a person's reputation and are

defamatory: Mann v. International Association of Machinists and Aerospace Workers et al., 2012 BCSC 181, at para. 73; Hobbs, at para. 84. [327] Slander is oral defamation (whereas libel is written defamation), and it requires proof of special damages unless the impugned words were slanderous per se. There are four recognized categories of slander where damages are presumed to have been suffered from the very nature of the words, and thus are instances of slander per se: see R. E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Toronto: Thomson Reuters) (2nd ed., loose-leaf updated 2014) ("Brown on Defamation"), at pp. 8-8 and 8-41. One of those categories is accusations imputing the commission of a criminal offence. [328] Courts apply an objective, common sense approach in determining whether the meaning of a publication or statement is defamatory, and avoid seizing upon the worst possible meaning. In the often-cited case of Lewis v. Daily Telegraph Ltd., [1963] 2 All E.R. 151 (H.L.), Lord Reid for the court said, at pp. 154-155: What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves as where

the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them and that is also regarded as part of their natural and ordinary meaning. . . . . . . In this case it is, I think, sufficient to put the test this way. Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning that they would put on the words in question. . . . What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression. [329] In the same case, Lord Devlin wrote, at pp. 173-174: The real point, I think, that [plaintiff's counsel] makes is that whether the libel is looked at as a statement or as a rumour, there is no difference between saying that a man is suspected of fraud and saying that he is guilty of it. It is undoubtedly defamatory, he submits, to say of a man that he is suspected of fraud, but it is defamatory only because it suggests that he is guilty of fraud: so there is no distinction between the two. This is to me an attractive way of putting the point. On analysis I think that the reason for its attraction is that as a maxim for practical application, though not as a proposition of

law, it is about three-quarters true. When imputation is made in a general way, the ordinary man is not likely to distinguish between hints and allegations, suspicion and guilt. It is the broad effect that counts and it is no use submitting to a judge that he ought to dissect the statement before he submits it to the jury. But if on the other hand the distinction clearly emerges from the words used it cannot be ignored. If it is said of a man - "I do not believe that he is guilty of fraud but I cannot deny that he has given grounds for suspicion," it seems to me to be wrong to say that in no circumstances can they be justified except by the speaker proving the truth of that which is expressly said he did not believe. It must depend on whether the impression conveyed by the speaker is one of frankness or one of insinuation. It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to take his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back

to the fundamental question: what is the meaning that the words convey to the ordinary man; a rule cannot be made about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well-founded. [330] These passages were cited with approval by Grauer J. (as he then was) in Manno v. Henry, 2008 BCSC 738, at paras. 72-73. Thus, simply using the word "alleges" or saying that a person is "suspected" of criminal conduct will not necessarily transform a defamatory statement into one that is not defamatory. The court will still have to consider whether, in context, the statement carries a defamatory meaning. [331] Lord Reid also provided helpful guidance in Rubber Improvement Ltd. v. Daily Telegraph Ltd., [1964] A.C. 234 (H.L.), at p. 258: There is no doubt that in actions for libel the question is what the words would convey to an ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs. [332] In determining meaning, and whether words are defamatory, a court is guided by the test of reasonableness. It will not strain to give a particular meaning to

published words, or stretch them beyond their fair meaning. It will avoid any unusual meaning, or a tortured, forced or unreasonable interpretation of the language, and the inferences drawn must not be far-fetched. Words will not be distorted to give them an unusual meaning. They should be judged by their general tenor. The language will not be tortured to make certain that which is not certain. It is not the ingeniously possible interpretation, but the plainly normal construction that is preferred. See Pan v. Gao, 2020 BCCA 58, at para. 61 (citing Kazakoff v. Taft, 2018 BCCA 241, at para. 31). [333] With respect to the standard of what constitutes an ordinary member of the public, Abella J.A. (as she then was) wrote, in Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 156 D.L.R. (4th) 27 (Ont. C.A.), at para. 15: The standard . . . is difficult to articulate. It should not be so low as to stifle free expression unduly, nor so high as to imperil the ability to protect the integrity of a person's reputation. The impressions about the content of any broadcast -- or written statement -- should be assessed from the perspective of someone reasonable, that is, a person who is reasonably thoughtful and informed, rather than someone with an overly fragile sensibility. A degree of common sense must be attributed to viewers. [334] The intention of the author and publisher of

a statement alleged to be defamatory is not relevant on the issue of meaning. The subjective opinion of a plaintiff concerning the meaning of the expression is also not relevant. See Lawson v. Baines, 2011 BCSC 326 ("Lawson Trial"), at para. 39, aff'd 2012 BCCA 117 ("Lawson Appeal"). [335] At a trial, a plaintiff bears the onus to prove, on a balance of probabilities, that the statements alleged to have been made by the defendant bore the inferential meanings alleged, or something substantially similar: Lawson Trial, at paras. 35 and following. [336] In a trial of a defamation case, the first task of a trial judge is to answer the "threshold question" of whether the words cited are reasonably capable of a defamatory meaning. This is an issue of law. The judge, if sitting alone, then plays a second role, as a finder of fact, in determining whether the words do, in fact, bear that defamatory meaning. In executing the first, gatekeeper role, the judge must keep in mind that the question does not involve finding that the words are in fact defamatory, but concerns only what the words are capable of meaning. When performing this task, the judge must not stray from a common sense construction of these words and seize upon one marginal to that construction. See Lawson Appeal, at paras. 26-27. [337] In the context of the PPPA Applications, I am not making any final determination of

whether any statement alleged by Mr. Galloway to be defamatory is, in fact, defamatory. However, I must assess whether, in respect of a particular statement, Mr. Galloway has met his burden to show that there are grounds to believe there is substantial merit to his claim. Mr. Galloway's burden is to show that there are "grounds to believe" statements alleged to be defamatory can bear the meanings pleaded or something substantially similar. In my view, this requires me, at the very least, to make a determination of whether the words complained of are reasonably capable of bearing a defamatory meaning. [338] It is for the trier of fact (the trial judge in a judge-alone trial) to decide what natural and ordinary meaning the words bear, including what innuendos can be reasonably inferred, and whether any are defamatory. The judge is not bound by, or limited to, either a plaintiff's interpretations or a defendant's interpretations. However, the meaning offered by the plaintiff is to be treated as the most injurious meaning the words are capable of conveying. Furthermore, the meaning of the words must generally be understood in the context of all of the circumstances and the publication as a whole. See Casses v. Canadian Broadcasting Corporation, 2015 BCSC 2150, at para. 326; and Taseko Mines Limited v. Western Canada Wilderness Committee, 2017 BCCA 431, at paras. 42-44. [339]

Whether a statement or publication in fact refers to, or is "of and concerning," a plaintiff, like questions concerning meaning generally, is determined from the perspective of an ordinary or reasonable reader or viewer. The test is stated in one of the leading cases, Knuppfer v. London Express Newspaper, Ltd., [1944] A.C. 116, at p. 121 (per Viscount Simon, L.C.): There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law - can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact - Does the article in fact lead reasonable people, who know the appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the appellant, the second question does not arise, and where the trial judge went wrong was in treating evidence to support the identification in fact as governing the matter, when the first question is necessarily, as a matter of law, to be answered in the negative. [340] Statements or publications can be defamatory of a person without the person being identified by name. As is stated in Brown on Defamation, at pp. 6-10 to 6-15 (footnotes omitted): It is essential to the cause of action that the words be defamatory of the plaintiff. It is not necessary that the

plaintiff be named specifically, or identified by his or her proper name, or even mentioned at all, . . . if it is otherwise shown that the words would be reasonably understood to refer to the plaintiff. . . . Nor is it necessary for the person to whom the publication is made to know the plaintiff by name. Direct evidence that the plaintiff is pointed to is not essential. . . .He or she may be indicated "by designation or description", or pointed to by the circumstances It may be clear from other evidence that he was the one alluded to, but he must satisfy the court in that regard. This may be done by introducing evidence, apart from the publication, connecting the plaintiff with the defamatory publication. . . . The extrinsic facts do not have to coincide exactly with the facts detailed in the publication so long as they enable a reasonable person to identify the plaintiff. [341] See also Manno v. Henry, at paras. 91-92. [342] Statements which do not refer to the plaintiff by name will nonetheless meet the "of and concerning" requirement if they may reasonably be found to refer to the plaintiff in light of the surrounding circumstances. Moreover, in cases involving more than one allegedly defamatory publication, the court may be entitled to look at all of the articles in considering the question of whether a particular one refers to the plaintiff. See Butler v. Southam Inc.,

2001 NSCA 121, at paras. 39-42; Weaver v. Corcoran, at paras. 84-85. A plaintiff must prove that the statements would lead reasonable people acquainted with the plaintiff to the conclusion that the statements refer to the plaintiff: see Butler, at para. 29 and Grant v. Cormier-Grant (2001), 56 O.R. (3d) 215 (C.A.), at paras. 19-20. [343] In this case, Mr. Galloway has pleaded separate publications as independent causes of action. The proper approach to a determination of meaning in such circumstances is discussed in Weaver v. Corcoran, beginning at para. 73 and following. At para. 83, Dickson J.A. concluded: [83] . . . [T]he circumstances in which multiple publications may be read together to determine allegedly defamatory meaning of impugned words are limited by logic, case law and the pleadings. In my view, where separate publications are pleaded as independent causes of action, absent referability or other inextricable linkage, the meaning of each should be determined independently, in the immediate context in which the words are used. Where the meaning of a publication, so interpreted, is non-defamatory, its meaning cannot logically be altered by a subsequent publication. However, if one publication is referenced in or otherwise closely connected to another publication, depending on the pleadings, issues and circumstances of the case, it may be appropriate to read them

together to ascertain their combined meaning. [344] To prove the publication element of defamation, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it. Traditionally, the form the defendant's act takes and the manner in which it assists in causing the defamatory content to reach the third party are irrelevant. See Crookes v. Newton, 2011 SCC 47, at para.

16. Generally speaking, including a hyperlink does not constitute publication of what is found at the hyperlink: Crookes, at paras. 26-27, 30 and 42. [345] The general rule is that a person is responsible only for that person's own defamatory publications, and not for their repetition by others: Brown on Defamation, at p. 7-40. The exceptions to this rule are where: (a) the original publisher authorized or intended the republication; (b) the person to whom the original publication is made was under a duty to repeat the expression; and (c) the republication was the natural and probable result of the original publication. These exceptions are discussed in Brown on Defamation, at pp. 7-44 to 7-46 (footnotes omitted): These rules apply only where the information repeated is the same or substantially the same so that the sum and substance of the original charge remains, or at least part of the sting of the original publication is conveyed. The fact that there are some slight alterations in the republication will not affect the exceptions if the sense of the original publication is still the same. On the other hand, where the original publisher merely provides "some of the material used by another in the preparation of a defamatory piece, he will not be liable as a publisher of the later publication, if, as a whole, it is different in sense and substance from the material he provided." [346] The reporting of defamatory statements is barred by the "repetition rule" of defamation law, which holds that someone who repeats a defamatory statement is no less liable than the person who originated it: Grant, at para.

76. In Grant, McLachlin C.J.C. observed, at para. 114: [114] . . . Consistent with the logic of the repetition rule, the fact that someone has already published a defamatory statement does not give another person licence to repeat it. As already explained, this principle is especially vital when defamatory statements can be reproduced electronically with the speed of a few keystrokes. . . . [347] In Grant, McLachlin C.J.C. went on to address the repetition rule in the context of whether a defamatory statement's public interest lay in the fact that it was made, rather than its truth (the concept of "reportage"), at paras. 119-120: [119] The "repetition rule" holds that repeating a libel has the same legal consequences as originating it. This rule reflects the law's concern that one should not be able to freely publish a scurrilous libel simply by purporting to attribute the allegation to someone else. The law will not protect a defendant who is "willing to wound, and yet afraid to strike": "Truth" (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997 (P.C.), at p. 1001, per Lord Denning. In sum, the repetition rule preserves the accountability of media and other reporting on matters of public interest. The "bald retailing of libels" is not in the public interest: Charman, at para. 91, per Sedley L.J. Maintaining the repetition rule is particularly important in the age of the Internet,

when defamatory material can spread from one website to another at great speed. [120] However, the repetition rule does not apply to fairly reported statements whose public interest lies in the fact that they were made rather than in their truth or falsity. This exception to the repetition rule is known as reportage. If a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability even if some of the statements made may be defamatory and untrue, provided: (1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability; (2) the report indicates, expressly or implicitly, that its truth has not been verified; (3) the report sets out both sides of the dispute fairly; and (4) the report provides the context in which the statements were made. [citations omitted] [348] With few exceptions, the Applicants say that the statements alleged by Mr. Galloway to be defamatory carry no defamatory meaning, and a number of the Applicants say that Mr. Galloway cannot show grounds to believe that their statements are "of and concerning" him. The Applicants say that Mr. Galloway has therefore failed to satisfy his burden under PPPA s. 4(2)(a)(i) to show that his claims have substantial merit. [349] I find that, for the purposes of the PPPA Applications, Mr. Galloway has proved

publication for all of the statements in issue. The contest is over the other two required elements of a defamation claim: (1) that a statement was defamatory; and (2) that the statement was of and concerning Mr. Galloway. The Applicants deny both, and these are defences raised in response to Mr. Galloway's claims. However, in the light of the traditional analytical framework for defamation claims (described in Grant), I will consider these defences in the context of "substantial merit" under PPPA s. 4(2)(a)(i), rather than "no valid defence" under s. 4(2)(a)(ii). (b) Defences in play (i) Defamation defences [350] If a plaintiff proves the required elements of a defamation claim, the onus then shifts to a defendant to advance a defence to escape liability. A defendant must defend against the stings sued over, not other alleged misconduct: Galloway v. A.B., 2021 BCSC 320, at para. 43; and Weaver v. Ball, at para. 39. [351] Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which they were made. Certain occasions, such as legal proceedings, are absolutely privileged. [352] Other occasions enjoy "qualified" privilege. In Bent, Côté J. explained, at paras. 121-122, and 128: [121] An occasion of qualified privilege exists if a person making a communication has "an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published" and the recipient has "a corresponding interest or duty to receive it": Downard, at §9.6 (footnote omitted). Importantly, "[q]ualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself": Hill, at para. 143; Botiuk, at para.

78. Where the occasion is shown to be privileged, "the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff": Hill, at para. 144; Botiuk, at para.

79. However, the privilege is qualified in the sense that it can be defeated. This can occur particularly in two situations: where the dominant motive behind the words was malice, such as where the speaker was reckless as to the truth of the words spoken; or where the scope of the occasion of privilege was exceeded (Downard, at §1.9; see also Hill, at paras. 145-47; Botiuk, at paras. 79-80). [122] For this reason, a precise characterization of the "occasion" is essential, as it becomes impressed with the limited, qualified privilege, which in turn becomes the benchmark against which to measure whether the occasion was exceeded or abused. . . . [128] Qualified privilege may be defeated "when the limits of the duty or interest have been exceeded": Hill, at para. 146; Botiuk, at para.

80. This is the case when the information communicated in a statement is not relevant to the discharge of the duty or the exercise of the right giving rise to the privilege, or when the information is not reasonably appropriate to the legitimate purposes of the occasion: [citations omitted]. [353] The threshold for qualified privilege remains high. The privilege is grounded not in free expression values, but in the social utility of protecting particular communicative occasions from civil liability: Bent, at para. 124 (citing Grant, at paras. 37 and 94). [354] In addition, Professor Maillard argues that the defence of qualified privilege also applies "in response to attack." In other words, when a person is responding to an attack, defamatory statements the person makes about the attacker are privileged. Professor Maillard cites Ward v. Clark, 2001 BCCA 724, as an example where the defence of qualified privilege has been accepted in response to attack. Professor Maillard argues that the "attack" does not need to be an attack on the person responding, and that qualified privilege also applies where the responder is responding to an attack on a third party (a friend, for example). [355] In addition to privilege, statements of opinion may attract the defence of fair comment. A defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of

public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. See WIC Radio Ltd. v. Simpson, 2008 SCC 40, at para. 28. [356] In order to determine whether a defamatory imputation can be protected as fair comment, it must be initially determined whether it is comment upon given facts, or a statement of facts. The distinction is fundamental and must absolutely be made because an assertion of facts can never be defended as fair comment: Ross v. New Brunswick Teachers' Assn., 2001 NBCA 62, at para.

55. A comment must be recognizable as comment and must not be mixed up with allegations of fact so that the reader cannot distinguish between what is fact and what is comment: Ager v. Canjex Publishing d.b.a. Canada Stockwatch, 2005 BCCA 467, at para. 43; Leenen v. Canadian Broadcasting Corp., 2000 CanLII 22380 (ONSC), at paras. 123-124. [357] However, words that may appear to be statements of fact may be properly construed as comment: WIC, at para.

26. What is comment and what is fact must be determined from the perspective of a reasonable viewer or reader: WIC, at para. 27 (citing Ross, at para. 62); Neufeld, at para.

27. Context is important. Whether something is fact or comment is for the court to decide: WIC, at para.

55. If a trier characterizes statements as facts rather than comments, the fair comment defence will not succeed: Neufeld, at para. 27. [358] On behalf of Mr. Galloway, Mr. Burnett argues that, in the context of the PPPA Applications, all fair comment defences must fail. This is because statements that Mr. Galloway committed rape, sexual assault and physical assault, and the stings pleaded, are statements of fact, not comment. In Mr. Burnett's submission, it does not matter that publications containing those statements may also contain opinions on other issues that are not sued over. Arguments defending such opinions are unnecessary and irrelevant, in Mr. Burnett's submission. [359] A properly disclosed or sufficiently indicated (or so notorious as to be already understood by the audience) factual foundation is an important objective limit to the fair comment defence: WIC, at para.

34. The facts must be sufficiently stated or otherwise known to readers so that they are able to make up their own minds on the merits of the comments and opinions expressed: Neufeld, at para.

28. If the factual foundation is unstated or unknown, or turns out to be false, the fair comment defence is not available: WIC, at para.

31. On the other hand, a single fact, proved to be substantially true, can provide a sufficient foundation for a fair comment defence: see Simpson v. Mair and WIC Radio Ltd., 2004 BCSC 754, at paras. 56-60. [360] Where statements of fact are at issue, usually only two defences are available: the defence that the statement was substantially true (justification); and the defence that the statement was made in a protected context (privilege): Grant, at para. 32. [361] To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true: Grant, at para.

33. In Bent, Côté J. explained, at paras. 107-108: [107] . . . The burden on the defendant is to prove the substantial truth of the '"sting', or main thrust, of the defamation": Downard, at §1.6 (footnote omitted). In other words, "[t]he defence of justification will fail if the publication in issue is shown to have contained only accurate facts but the sting of the libel is not shown to be true": Downard, at §6.4. [108] Of particular importance here is the fact that partial truth is not a defence. If a material part of the justification defence fails, the defence fails altogether: R. E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd ed. (loose-leaf)), at pp. 10-88 to 10-90 ("Brown on Defamation"). However, a defendant may justify only part of a libel "if that part is severable and distinct from the rest": p. 10-89 (footnote omitted). This depends on the allegation being separate and self-contained rather than an "ingredient or part of a connected whole": p. 10-90 (footnote omitted). [362] A defendant who pleads justification as a defence is considered to have republished the libel and to have aggravated damages: Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, at paras. 191-192. [363] A defendant who has reported another person's defamatory allegation about a plaintiff cannot succeed in a plea of justification merely by

proving that the allegation was made. The defendant must prove the truth of the underlying allegation. No one is justified in stating false facts about another merely because someone else has done so. Those who give currency to a defamatory report are responsible for its truth: Vanderkooy v. Vanderkooy et al., 2013 ONSC 4796, at para. 157. [364] However, in some circumstances where statements of fact are at issue, the defence of responsible communication can be available, even though neither justification nor privilege are available as defences. Grant is the leading case on the defence of responsible communication. The defence is described at para. 98: [98] This brings us to the substance of the test for responsible communication. In Quan, Sharpe J.A. held that the defence has two essential elements: public interest and responsibility. I agree, and would formulate the test as follows. First, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances. [365] Chief Justice McLachlin summarized the more detailed elements of the defence, at para. 126: [126] The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply

where: A. The publication is on a matter of public interest, and B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff's side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth ("reportage"); and (h) any other relevant circumstances. [366] With respect to "other relevant circumstances," Chief Justice McLachlin noted (at paras. 122-125) that: [122] . . . the factors serve as non-exhaustive but illustrative guides. Ultimately, all matters relevant to whether the defendant communicated responsibly can be considered. [123] Not all factors are of equal value in assessing responsibility in a given case. For example, the "tone" of the article . . . may not always be relevant to responsibility. While distortion or sensationalism in the manner of presentation will undercut the extent to which a defendant can plausibly claim to have been communicating responsibly in the public interest, the defence of responsible communication ought not to hold writers to a standard of stylistic blandness [citation

omitted]. Neither should the law encourage the fiction that fairness and responsibility lie in disavowing or concealing one's point of view. The best investigative reporting often takes a trenchant or adversarial position on pressing issues of the day. An otherwise responsible article should not be denied the protection of the defence simply because of its critical tone. [124] If the defamatory statement is capable of conveying more than one meaning, the jury should take into account the defendant's intended meaning, if reasonable, in determining whether the defence of responsible communication has been established. This follows from the focus of the inquiry on the conduct of the defendant. The weight to be placed on the defendant's intended meaning is a matter of degree: "The more obvious the defamatory meaning, and the more serious the defamation, the less weight will a court attach to other possible meanings when considering the conduct to be expected of a responsible journalist in the circumstances" [citation omitted]. Under the defence of responsible communication, it is no longer necessary that the jury settle on a single meaning as a preliminary matter. Rather, it assesses the responsibility of the communication with a view to the range of meanings the words are reasonably capable of bearing. [125] Similarly, the defence of responsible communication obviates the need for

a separate inquiry into malice. (Malice may still be relevant where other defences are raised.) A defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly. [367] When determining responsibility, the trier of fact must consider the broad thrust of the publication as a whole rather than minutely parsing individual statements: see Quan v. Cusson, 2009 SCC 62, at para. 30. [368] Malice can defeat both a qualified privilege defence and a fair comment defence. [369] Malice is a state of mind: Smith v. Cross, 2009 BCCA 529, at para.

42. Even where a defendant relies on objective honest belief as part of a fair comment defence, the defence can still be defeated by proof that subjective malice was the dominant motive of the particular comment: WIC, at para. 53. [370] In Hill, Cory J. wrote, at para. 145: Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes . . . "any indirect motive or ulterior purpose" that conflicts with the sense of duty or the mutual interest which the occasion created. Malice may also be established by showing that the defendant spoke dishonestly, or in knowing or reckless disregard for the truth. [citations omitted] [371] In Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004), at p. 299, the authors set out a framework for the categories under which a finding of express malice can be made: A defendant is actuated by express malice if he or she publishes defamatory expression: i) knowing it was false; or ii) with reckless indifference whether it is true or false; or iii) for the dominant purpose of injuring the plaintiff because of spite or animosity; or iv) for some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion. [372] In Bent, Côté J. wrote, at para. 136: [136] . . . Malice is not limited to an actual, express motive to speak dishonestly. Instead, it can be established by "reckless disregard for the truth": Hill, at para. 145; Botiuk, at para.

79. Notably, an ostensibly honestly held belief may still be spoken recklessly and the privilege defeated if the belief was "arrived at without reasonable grounds": Downard, at §9.60 and 9.61. "The more serious the allegation in issue, the more weight a court will give to a failure by the defendant to verify it prior to publication as evidence of malice, in the sense of indifference to the truth": §9.74 (footnote omitted). . . . [373] It is an error in principle to suggest that, once a defendant explains and asserts a belief in the defendant's comments, malice can only be proved by a "full admission on cross-examination." To the contrary, malice may be gleaned from the nature of the words themselves and the context in which the statements were made: Neufeld, at para. 44. [374] In the context of the PPPA Applications, Mr. Galloway does not have to prove malice. Rather, it is sufficient at this stage if there is evidence before me, reasonably capable of belief, that would support such a finding. [375] Malice can also be relevant to the weighing exercise under PPPA s. 4(2)(b): Neufeld, at para. 48 (citing Pointes, at para. 75); Hobbs, at paras. 90-92. [376] Ms. Rooney also relies on a defence of consent in relation to Rooney Nos. 3 to 7. This defence is discussed in Hanly v. Pisces Productions Inc., 1980 CanLII 3047 (B.C.S.C.), pp. 376 and following. I will discuss that defence in

more detail later in these reasons. (ii) Defence relying on the Limitation Act [377] For events that occurred before October 26, 2016 (two years before the NCC was filed), the affected Applicants (A.B., Professor Maillard, Professor Lyon and Ms. Rooney with respect to the events in November 2015) each say that they have a valid defence under the Limitation Act, S.B.C. 2012, c. 13, and any claims are statute-barred. The only claims against Professor Lyon are in respect of events that occurred more than two years before the NCC was filed. [378] The Limitation Act provides in relevant part: Basic limitation period 6 (1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered. . . . General discovery rules 8 Except for those special situations referred to in sections 9 to 11 [none of which is relevant to Mr. Galloway], a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following: (a) that injury, loss or damage had occurred; (b) that the injury, loss or damage was caused by or contributed to by an act or omission; (c) that the act or omission was that of the person against whom the claim is or may be made; (d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means

to seek to remedy the injury, loss or damage. [379] The application of s. 8 may require the court to undertake a contextual analysis of when a particular plaintiff could have reasonably discovered his or her claim: Johar v. College of Veterinarians of British Columbia, 2020 BCSC 1085, at paras. 167-170. However, purely tactical concerns have no place in the analysis: Novak v. Bond, [1999] 1 S.C.R. 808, at paras. 81, 86. (iii) The Weber Defence and the University Act, s. 69(1) [380] In respect of events in the fall of 2015, Professor Maillard, Professor Lyon, A.B. and Ms. Rooney all rely on the Weber Defence. This defence has its origins in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and it concerns the jurisdiction of the court to adjudicate claims and disputes where there is a collective agreement providing for arbitration. [381] In Weber, the Supreme Court of Canada decided that if the "essential character" of a dispute arises from the interpretation, application, administration or violation of the collective agreement, then the dispute must be dealt with by the dispute resolution process provided in the collective agreement and labour relations statutes, and not by litigation in the courts. The "exclusive jurisdiction" approach to labour disputes was affirmed in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14. [382] In both of these

cases, the Supreme Court of Canada made it clear that to determine whether a dispute arises out of a collective agreement, two elements must be considered: the nature of the dispute and the ambit of the collective agreement. For example, in Regina Police, Bastarache J. wrote, at para. 25: 25 . . . In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed: see Weber, at para.

43. Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide: see, e.g., Weber, at para. 54; New Brunswick v. O'Leary, [1995] 2 S.C.R. 967], at para. 6. [383] In addition, even where all parties to a court action are not covered by a collective agreement, if the essential character of the dispute arises under the collective agreement and a claimant can receive an adequate remedy from the agreement's dispute resolution process for the harm allegedly caused by the non-party to the collective agreement, the court will not have jurisdiction over the claim against the non-party: Haight-Smith v. Neden, 2002 BCCA 132, at para. 47 [384] However, the courts retain jurisdiction over disputes which do not

expressly or inferentially arise out of the collective agreement (Weber, at para. 54) and also where a remedy is required that an arbitrator is not empowered to grant, in order to avoid a "real deprivation of ultimate remedy" (Weber, at para. 57). [385] The Court of Appeal has considered the principles in Weber in the context of defamation claims in (for example): Fording Coal Ltd. v. U.S.W.A., Local 7884, 1999 BCCA 38; Haight-Smith; and Stuart v. Hugh, 2009 BCCA 127. [386] The collective agreement between UBC and the UBCFA defines "grievance" in Part 1, Part D, Article 20, s. 20.01 as follows: "Grievance" means a dispute between the Parties respecting the interpretation, application, operation or alleged violation of the Collective Agreement including a question as to whether a matter is arbitrable. [387] Article 10 of Part 4 ("Conditions of Appointment for Faculty") of the collective agreement deals with "Disciplinary Measures," including temporary suspension, and termination and suspension for cause. The definition section of Article 10 (s. 10.1) includes a definition of sexual harassment, and states: "Sexual harassment" has the same meaning as given in University Policy Number 3: Discrimination and Harassment. [388] Counsel relying on the Weber defence point to the First Grievance Letter and the Second Grievance Letter, and the descriptions in those documents of Mr.

Galloway's complaints, as providing strong support for the conclusion that the essential character of the dispute concerns a subject matter that is covered by the collective agreement. In that light, counsel say, the Weber defence is a valid defence. [389] On the other hand, Mr. Burnett argues the Court of Appeal's decision in Stuart v. Hugh supports Mr. Galloway's position that the Weber defence is not a valid defence. In Stuart, the collective agreement specifically included "false accusations," and the court concluded that the factual matrix was "closely connected" with Mr. Stuart's employment (as a teacher). Despite that, the court concluded that the essential character of the dispute was more aptly described as a "problem at the workplace," rather than a "workplace problem," and was not covered by the collective agreement. As a result, the Weber defence did not apply, and the court had jurisdiction over Mr. Stuart's defamation claim. Mr. Bennett says the same reasoning applies here. The "essential character of the dispute" is not about allegations going to Mr. Galloway's quality as a professor. Rather, in respect of events in November 2015, it involves the accusations of rape, sexual assault and physical assault made against Mr. Galloway. Thus, the essential character of the dispute is not a workplace problem, but a problem in the workplace. It is not a labour dispute, but

a matter concerning accusations of criminal misconduct by Mr. Galloway. [390] In addition, Mr. Burnett argues that the Weber defence is not a valid defence because one of the remedies sought by Mr. Galloway (an injunction) is not available through arbitration. [391] Also in connection with events in November 2015, Professor Maillard and Professor Lyon each rely on s. 69(1) of the University Act, R.S.B.C. 1996, c. 468, which provides: 69 (1) An action or proceeding must not be brought against a member of a board, senate or faculties, or against an officer or employee of a university, in respect of an act or omission of a member of a board, senate or faculties, or officer or employee, of the university done or omitted in good faith in the course of the execution of the person's duties on behalf of the university. [392] No cases were cited where this section was applied to facts analogous to those before me. Mr. Burnett argues that this defence would not qualify as a "valid defence" for many of the same reasons that a defence of qualified privilege would not qualify. In Mr. Burnett's submission, none of the acts of Professor Maillard or Professor Lyon could be said to have been done in good faith in the course of the exercise of either's duties on behalf of the university.

8. Are there grounds to believe Mr. Galloway's claims have substantial merit? - s. 4(2)(a)(i) (a) Introduction [393] At this stage, Mr. Galloway must satisfy me that there are grounds to believe that his underlying claims are legally tenable and supported by evidence that is reasonably capable of belief, such that the claims can be said to have a real prospect of success: Pointes, at para. 54. [394] In this section, I will set out my findings and conclusions concerning whether, on the record before me, Mr. Galloway's claims have substantial merit. Any finding or conclusion is expressly limited to the PPPA Applications. [395] However, before turning to the specific claims, I will address two issues. [396] The first issue concerns the pleadings, and specifically the NCC. [397] Some of the Applicants (A.B., Professor Maillard and Professor Lyon, in particular) say that Mr. Galloway's claims are insufficiently pleaded, and that this failure should weigh against Mr. Galloway in assessing whether the claims have substantial merit. For example, A.B. says, in relation to A.B. No. 1, that the plea of "and others known to her" in para. 12 of the NCC is insufficient, as is the pleading of malice. Professors Maillard and Lyon argue that, with respect to Mr. Galloway's slander claims, the words pleaded are not precisely those that have emerged in the evidence, and, therefore, the slander

claims against them must fail. [398] However, and in the context of the PPPA Applications, I do not agree that Mr. Galloway's claims have been insufficiently pleaded and therefore lack substantial merit. [399] The law on pleadings in defamation actions has been summarized in Lu v. Shen, 2020 BCSC 490, at para. 41 (citing Madam Justice Dickson's discussion in Weaver v. Corcoran) and para. 51 (citing Madam Justice Russell's discussion in Christian Advocacy Society of Greater Vancouver v. Arthur, 2013 BCSC 1542, at paras. 107-113). [400] The authorities permit a plea of "and others." Not all particulars of the defamation need to be pleaded, but only those known at the time of pleading. [401] Further, I agree with Mr. Burnett's submissions on behalf of Mr. Galloway that A.B.'s complaints about Mr. Galloway's plea of malice (relevant to the defences of both fair comment and qualified privilege) must be rejected, and that Rule 3-7(17) provides a complete answer. That Rule states: (17) It is sufficient to allege malice, fraudulent intention, knowledge or other condition of the mind of a person as a fact, without setting out the circumstances from which it is to be inferred. [402] With respect to Mr. Galloway's plea of slander against Professors Maillard and Lyon in relation to events at the November Meeting, I agree with Mr. Burnett's submission that if the words proved are slightly

different, but with the same or reasonably similar sting to the words pleaded, then the defamation is proven. Based on the record before me, that describes the situation here. In my view, the notes of the November Meeting, together with the evidence of Timothy Taylor in particular, are sufficient to conclude that the requirements for a proper plea of slander have been satisfied. [403] The second issue concerns the result if I conclude with respect to an Applicant against whom multiple claims have been made that some (or most) have substantial merit and no valid defence, but some either do not have substantial merit or there is a valid defence. [404] In submissions, Mr. Burnett argued that even if I found that, in respect of an individual Applicant (Professor Maillard, for example), Mr. Galloway had failed to show some claim(s) against that Applicant had substantial merit, I must nevertheless allow all claims against that Applicant to go forward and cannot "trim" any of Mr. Galloway's claims. Mr. Burnett argued the reason is because the PPPA s. 4(2) refers to making a dismissal order in respect of "a proceeding," and not a part of "a proceeding." [405] Neufeld, at para. 31, might be read as providing some support for Mr. Burnett's position. There Fenlon J.A. wrote [underlining added]: [31] In summary on this point, and with great respect to the judge, he erred by not considering

whether each of the publications included statements that were recognizable as comments founded on identifiable facts. There are grounds to believe that Mr. Hansman's defence of fair comment is not valid for at least some of the expressions in issue in the action. [406] These comments might be seen to suggest that the assessment of a valid defence requires a valid defence to everything claimed. If the existence of a valid defence is questionable on some claims - in other words, if there are "grounds to believe" that a defence of fair comment (for example) is not valid for at least some publications - then the whole case goes forward (subject to "weighing" under s. 4(2)(b)). The same reasoning would (in theory) apply to "substantial merit" under s. 4(2)(a)(i), where there are multiple claims. In the result in Neufeld, the plaintiff's appeal was allowed and the entire action was allowed to proceed. [407] On the other hand, the Applicants say that the argument advanced by Mr. Burnett - to the effect that allegations cannot be trimmed - has been discussed and rejected in two Ontario decisions. [408] The first is Rizvee v. Newman, 2017 ONSC 4024, where the court was dealing with a defence application to dismiss an action under the Ontario equivalent of the PPPA. The plaintiffs' pleadings included a defamation claim and a claim for damages for malicious prosecution. The motions judge

said: [140] The Plaintiffs argued that the language of s. 137.1 referencing the dismissal of a "proceeding" must be interpreted to mean that only the entire action can be dismissed. In other words, that the court must be satisfied that s. 137.1 offers protection to each and every damage claimed before an action can be dismissed. Specifically, the Plaintiffs argue that if I am not satisfied that s. 137.1 applies to the malicious prosecution claim then I must not dismiss the defamation claim separate and apart. They argue that the court may only dismiss the whole of a claim, not any part, given the use of the term "proceeding". I do not accept this argument. [141] If the Plaintiffs are correct then any expression otherwise insulated by s. 137.1 would lose such protection simply by including some other head of relief in the same Statement of Claim. This is far too rigid an interpretation and completely contrary to the stated intentions of s. 137.1. In my view, it is completely open to the court to halt any part of a claim that engages and satisfies the test for dismissal set forth in s. 137.1. [409] In the result, the defamation claim was dismissed, however, the malicious prosecution claim was allowed to proceed. [410] The second case is Schwartz et al. v. Collette, 2021 ONSC 2138, where again the court was dealing with an application to dismiss a proceeding under the Ontario

equivalent of the PPPA. The proceeding involved claims for defamation and tortious interference with contractual/economic relations, and the plaintiffs intended to amend their pleadings to advance a claim for damages for intentional infliction of mental or emotional suffering. [411] The motions judge said: [19] I agree with the Plaintiffs that the dismissal of proceedings under s. 137.1 is not an "all or nothing" situation. I find that I am not bound or required to dismiss the entire action simply because I have found that a substantial part of the action, which I have dismissed, is founded upon public interest expression. As Justice D. Fitzpatrick observed in Rizvee, at para. 141, a rigid "all or nothing" interpretation of s. 137.1 would defeat the purpose of the provisions. [412] The action then continued in a modified form. [413] I have concluded that I must reject Mr. Burnett's position. In my opinion, despite the use of the word "proceeding," s. 4 of the PPPA is not an "all or nothing" situation. In my view, neither the objectives of the PPPA nor those of the Supreme Court Civil Rules (specifically Rule 1-3) are compatible with allowing a claim that I have concluded lacks substantial merit, or one where the plaintiff has failed to meet its burden to show no valid defence, to go forward, essentially on the coattails of other claims which I have concluded have substantial

merit and no valid defence. I am not persuaded, particularly in the context of Mr. Galloway's many claims in this action, that the word "proceeding" in s. 4 requires that result. (b) The claims against A.B. [414] With respect to A.B. No. 1, I am satisfied that Mr. Galloway has shown grounds to believe his claim has substantial merit. On the record, A.B. told Chelsea Rooney, Ronna Syed, Professor Maillard, Professor Lyon, Paul Krause and Cara Woodruff (at least) that Mr. Galloway had raped and sexually assaulted her. A.B. told Professor Maillard, Professor Lyon and Chelsea Rooney (at least) that Mr. Galloway had choked her. In her communications, A.B. referred to Mr. Galloway by name. Mr. Galloway has also shown grounds to believe that his claim respecting republication (by Professor Maillard, Professor Lyon and Ms. Rooney) of A.B. No. 1 also has substantial merit. [415] By her words, A.B. asserted that Mr. Galloway was guilty of criminal conduct, which is clearly defamatory. All of the elements of a defamation claim have been established with respect to A.B. No.

1. A.B. conceded as much in her submissions. [416] I turn then to A.B. No. 2. [417] The Art Exhibit was available for viewing over a number of weeks in the summer of 2018. The statements contained in A.B. No. 2 were available at the Gallery, and on-line. On the record, they were seen by Ms. Smalec, Ms. Gray, Timothy Taylor, Brad Cran, Cara Woodruff and David Mount. The content - asserting that the "professor" and "famous author" had raped and sexually assaulted A.B. - asserted that the person was guilty of criminal conduct, which is clearly defamatory. [418] However, A.B. argues that Mr. Galloway cannot meet his burden to show, in the context of her PPPA Application, that A.B. No. 2 was "of and concerning" him. [419] I do not agree. [420] As with issues concerning meaning generally, A.B.'s subjective intentions are irrelevant. That, so far as she was concerned, she took deliberate steps to avoid naming or identifying Mr. Galloway, is also irrelevant. [421] On the record before me, and applying the legal test described above in respect of the "of and concerning" element of a defamation claim, I find that Mr. Galloway has shown grounds to believe that the statements in A.B. No. 2 - especially taken in context - would lead reasonable people acquainted with Mr. Galloway to the conclusion that the statements referred to him. The Art Exhibit described the perpetrator in A.B.'s Rape

Narrative as a "professor," "chair of the department" and a "famous author." Mr. Galloway was all of those things. Ms. Smalec, as illustrated by her Twitter posts in July (which used #ubcaccountable), was aware the Rape Narrative depicted in the Art Show was about Mr. Galloway. Professor Taylor, Mr. Cran, Mr. Mount and Ms. Woodruff all understood the references in the Art Exhibit and associated publicity to be references to Mr. Galloway. Professor Taylor, Mr. Mount and Ms. Woodruff were involved in events in November 2015, and knew both A.B. and Mr. Galloway personally. The weight ultimately to be given to their evidence is a matter for trial. In the context of A.B.'s PPPA Application, I am satisfied that their evidence is more than sufficient to meet the "grounds to believe" standard. [422] It is not accurate to say that, in the summer of 2018, A.B.'s identity as Mr. Galloway's accuser and the "Main Complainant" was not publicly known. Although in newspaper articles, for example, A.B.'s name was not published, her identity was known. On the evidence before me, A.B.'s identity was an open secret among UBC and the creative writing community at least, certainly among those who knew Mr. Galloway. The Gallery's written publicity on its website referred to A.B. by name and stated that the Art Exhibit "derives from what [using A.B.'s real name] refers to as her Rape Narrative, a

narrative (and term) sanctioned by a university after she disclosed being sexually assaulted, assaulted and abused by a professor." Mr. Galloway's name was also in the media around the same time as the Art Exhibit was opening. This is, in my view, quite sufficient to meet the "of and concerning" requirement in the context of A.B.'s PPPA Application. [423] Accordingly, I conclude that, with respect to A.B. No. 2, Mr. Galloway has shown all of the elements of a defamation claim. Mr. Galloway's claim is legally tenable and supported by evidence that is reasonably capable of belief, such that the claim can be said to have a real prospect of success. As a result, Mr. Galloway has met his burden to show that there are grounds to believe this claim has substantial merit. (c) The claims against Professor Maillard [424] I will begin with Maillard No. 1. [425] In my opinion, the record supports the conclusion that Professor Maillard spoke the words alleged (or words substantially similar) to Professor Lyon in advance of the November Meeting, and also to the persons who attended that Meeting. At the Meeting, Professor Maillard communicated his belief that what he had been told by A.B. concerning Mr. Galloway was true. By his words, Professor Maillard asserted that Mr. Galloway was guilty of criminal conduct. Accordingly, I conclude that all of the elements of a defamation claim have been

established with respect to Maillard No. 1, and there are grounds to believe that the claim has substantial merit. [426] Chronologically, the next statement is Maillard No. 4, Professor's Maillard's post on Twitter on December 12, 2016. [427] The context of Maillard No. 4 is important. It is referring to the Boyd Report, and follows media publications, including Mr. Galloway's "Public Apology," published on the UBC Accountable website on November 23, 2016, in which Mr. Galloway confirmed that he had been accused of sexual assault. In my opinion, taken in context, Maillard No. 4 cannot bear the pleaded meaning, or any defamatory meaning. I conclude, therefore, that Mr. Galloway has not made out the necessary elements of a defamation claim in relation to Maillard No.

4. It follows that Mr. Galloway has failed to show grounds to believe that this claim has substantial merit. [428] I turn then to Maillard No. 2. [429] Read in its full context, Professor Maillard implies that A.B.'s "assault accusations" against Mr. Galloway are true facts that should not have been "fact-checked" out of Zoe Whittall's article published in The Walrus. Moreover, in my view, the obvious implication of "assault accusations" is that these are accusations of sexual assault against Mr. Galloway. In that light, the inferential meaning of Maillard No. 2 is capable of being understood to be that Mr. Galloway sexually assaulted A.B., and by his words, Professor Maillard has asserted that Mr. Galloway is guilty of criminal conduct. All of the elements of a defamation claim have been established with respect to Maillard No. 2, and there are grounds to believe the claim has substantial merit. [430] Finally, with respect to Maillard No. 3, the context, is, again, important. There can be little doubt, in the context in which the statement was published, that it referred to Mr. Galloway. It was published against a background of media publications during the summer of 2018. The statement would be understood as an endorsement of A.B.'s claim of rape and sexual assault. In my opinion, the words, in the context in which they were published, are capable of bearing the meaning that

A.B.'s story of rape and sexual assault by Mr. Galloway is true. Accordingly, by his words, Professor Maillard asserts that Mr. Galloway is guilty of criminal conduct. Professor Maillard's statement is defamatory of Mr. Galloway. [431] In my view, therefore, there are grounds to believe that Mr. Galloway's claim in respect of Maillard No. 3 has substantial merit. (d) The claims against Professor Lyon [432] On the record before me, I conclude that, at the November Meeting, Professor Lyon spoke the words alleged in Lyon No. 1, or words substantially similar. [433] Lyon No. 1 was stated in the context of those in attendance at the November Meeting having heard Maillard No.

1. Professor Lyon's role at the Meeting was to present A.B.'s case - which included playing Mr. Galloway's voice-mail messages, reading the text messages, repeating A.B.'s assertion that she and Mr. Galloway had no relationship, and reading out the CBC Document - and persuade those in attendance that what A.B. was claiming about Mr. Galloway, namely (and as Professor Maillard had stated), that he had sexually assaulted her, was true. Based on the record, Professor Lyon communicated to those at the Meeting that she believed A.B.'s claim was true. I conclude that, by her words, Professor Lyon meant and was understood to mean that Mr. Galloway was guilty of criminal conduct. All of the elements of a defamation claim have been established with respect to Lyon No. 1. [434] I turn then to Lyon No. 2. [435] In my view, the notes of the November Meeting, together with (in particular) Professor Taylor's evidence (which is consistent with the notes), provide grounds to believe that, at the Meeting, Professor Lyon spoke words with the same or reasonably similar sting to the words pleaded. Like Lyon No. 1, Lyon No. 2 was spoken in the context of those at the Meeting having heard Maillard No.

1. The notes record Professor Lyon saying: "Seven women CR [Ms. Rooney] has spoken to have incidents to report." A reasonable person, not avid for scandal, would understand this to mean incidents involving Mr. Galloway and other women similar to the incidents described by A.B. [436] I conclude, therefore, that Mr. Galloway has shown grounds to believe that his claim in respect of Lyon No. 2 has substantial merit. (e) The claims against Chelsea Rooney [437] With respect to Rooney No. 1, there is some dispute on the evidence concerning what Ms. Rooney in fact said to the people she contacted in November 2015. At times, Ms. Rooney has said that she never said that Mr. Galloway had raped A.B. Rather, according to Ms. Rooney, when she spoke to other women, she stated that A.B. was advancing a complaint of sexual assault against Mr. Galloway, and then asked whether the person remembered seeing anything relevant or if the person had reason to advance their own complaint. [438] On the other hand, Ms. Flegg, one of the women who spoke to Ms. Rooney in November 2015, recalled that she and Ms. Rooney spoke on the phone about A.B.'s allegations of sexual assault. She recalled that Ms. Rooney told her that A.B. had disclosed a sexual assault to her, and also that A.B. had told her that Mr. Galloway had choked and raped A.B. on campus. [439] As I noted above in the Background and Outline of

events, Ms. Woodruff recalled that Ms. Rooney told her (among other things) that Mr. Galloway had "violently raped" A.B. [440] During cross-examination, Ms. Rooney acknowledged that A.B. had given her the names of Ms. Woodruff and Ms. Flegg (as well as others) and suggested that Ms. Rooney contact them, which Ms. Rooney did. Indeed, on cross-examination, Ms. Rooney acknowledged that she contacted over a dozen people. Ms. Rooney acknowledged that she had A.B.'s explicit permission to tell those she was contacting about A.B.'s allegation she had been raped by Mr. Galloway, and she acknowledged that she told those she spoke to that A.B. had told her that she had been raped by Mr. Galloway. [441] I do not consider a "deep dive" is necessary in order to reach a conclusion about whether Mr. Galloway's claim in respect of Rooney No. 1 has substantial merit. [442] Ms. Flegg's evidence and that of Ms. Woodruff is consistent and the evidence of one supports the evidence of the other. In my view, their evidence is reasonably capable of belief. Their evidence is also consistent with Ms. Rooney's evidence on cross-examination. A reasonably thoughtful and informed listener would understand the difference between an unproven allegation and an assertion of a fact. However, saying "X alleges that Y raped her" is not the end of the inquiry concerning whether the words are capable of bearing a

defamatory meaning, because, in context, the statement may imply that Y is in fact guilty. Here, I find that there are grounds to believe Ms. Rooney told each of Ms. Flegg and Ms. Woodruff that Mr. Galloway had raped and assaulted A.B. That was the meaning a reasonably thoughtful and informed listener would take from what Ms. Rooney said. Those words are defamatory of Mr. Galloway, in that they assert that he has perpetrated criminal acts and is guilty of criminal conduct. The essential elements of a defamation claim have been demonstrated. [443] I conclude, therefore, that Mr. Galloway has shown there are grounds to believe his claim in respect of Rooney No. 1 has substantial merit. [444] With respect to Rooney Nos. 2-7, Ms. Rooney says that none of these is actionable. Ms. Rooney says the reason is because the words published would not tend to lower Mr. Galloway's reputation in the eyes of a reasonable person or expose him to hatred, contempt, or ridicule, since the fact of the allegations against Mr. Galloway - specifically the allegations of sexual assault - was already well-publicized. [445] However, in my view, this fails to take into account all of the aspects of the test that applies to whether words are capable of bearing a defamatory meaning. For example, Mr. Galloway does not have to prove that persons to whom the statements were made in fact thought less of him: see

Kerr, above. Moreover, the context (such as Mr. Galloway's apology) in which the fact of the sexual assault allegations was disclosed was one in which Mr. Galloway was defending himself, not accusing himself. The logic of Ms. Rooney's (and other Applicants') argument leads to the conclusion that an accusation or allegation of a fact is proof of the fact - in other words, a person is guilty because the person is accused - and therefore Mr. Galloway's reputation could not be harmed. This logic must be rejected. [446] Ms. Rooney is correct to say that, especially by November 16, 2016, when Rooney No. 3 was published, there had been public reports that Mr. Galloway had been fired by UBC and that he had been accused of sexual assault. However, the reasons for Mr. Galloway's termination (except in the most general terms) were not public. [447] In any event, Ms. Rooney's posts go considerably beyond what could do no damage to Mr. Galloway's reputation, to imply that the accusations and allegations of sexual assault were in fact true (and that, in firing him, UBC concluded as much, despite the "flawed Boyd Report"). In my view, Rooney No. 2 and Rooney No. 3 are, indeed, capable of bearing the defamatory meaning pleaded by Mr. Galloway, namely, that he raped, sexually assaulted and physically assaulted A.B. [448] Neither Rooney No. 2 nor Rooney No. 3 refer expressly to Mr. Galloway.

However, Rooney No. 2 refers expressly to the Boyd Report and UBC, both of which were publicly connected with Mr. Galloway, and Rooney No. 3 was published very shortly after the UBC Accountable Letter. In my view, there are grounds to believe that both meet the test of being "of and concerning" Mr. Galloway. [449] The sting of Ms. Rooney's statements is that Mr. Galloway is guilty of criminal conduct. Her statements are, accordingly, defamatory of Mr. Galloway. [450] For essentially the same reasons, I conclude that Ms. Rooney's words in Rooney Nos. 4-7 are capable of bearing the defamatory meaning pleaded by Mr. Galloway. [451] According, I conclude that Mr. Galloway has shown there are grounds to believe that his claims in respect of Rooney Nos. 2-7 have substantial merit. (f) The claims against Mandi Gray [452] I will deal with Gray No. 1, Gray No. 2 and Gray No. 3, all of which were published on November 15, 2016, together. The full text of Ms. Gray's three Twitter posts is set out in the Background and Outline of events, under the heading "November 2016: "UBC Accountable" and "UBC Unaccountable." [453] November 15, 2016 was the day after publication of the UBC Accountable Letter. In context, a reasonable reader of Ms. Gray's posts on November 15 would identify Mr. Galloway as the "Prof," and Mr. Galloway is referenced explicitly in the second post: he is the "dude." In

their natural and ordinary meaning, Ms. Gray's words would be understood to mean that Mr. Galloway was guilty of sexual assault and assault of a student or students. By her words, Ms. Gray asserted that Mr. Galloway was guilty of criminal conduct. All of the elements of a defamation claim have been established with respect to Gray No. 1, Gray No. 2 and Gray No. 3, and, in my view, Mr. Galloway has shown that there are grounds to believe the claims have substantial merit. [454] I draw a different conclusion with respect to Gray No.

4. In my view, and taken in context, this statement is not capable of bearing the defamatory meaning pleaded, or any defamatory meaning. [455] I reach the same conclusion with respect to Gray No.

5. Again, the context is important. Ms. Gray is repeating Mr. Galloway's words from November 2015. In context, a reasonable reader would understand these are Mr. Galloway's views, repeated by Ms. Gray. In that context, I am not persuaded that Gray No. 5 is capable of bearing the pleaded meaning (essentially that Mr. Galloway is a rapist who needs to be held accountable) or any defamatory meaning. [456] However, with respect to Gray No. 6, I conclude that Ms. Gray's words are capable of bearing the defamatory meaning pleaded. Mr. Galloway is referred to explicitly in Gray No. 6 in connection with "those who are sexually assaulted," and the "complainant" against him. A reasonable reader would understand Ms. Gray's words to mean Mr. Galloway had raped and sexually assaulted A.B. [457] Gray No. 7 shows Ms. Gray pictured at the opening of the Art Exhibit, which is identified by name and Ms. Gray identifies A.B. by her real name. In context, a reasonable person, acquainted with Mr. Galloway, would infer that Gray No. 7 was of and concerning Mr. Galloway, and infer that Mr. Galloway had committed sexual violence upon A.B. In my view, there are grounds to believe that the elements of a defamation claim have been sufficiently established in respect of Gray No. 7. [458] The result is that Mr. Galloway has shown grounds to believe that his claims in respect of Gray Nos. 1-3 and Gray Nos.

6-7 have substantial merit. However, in my view, Mr. Galloway has not met his burden with respect to either Gray No. 4 or Gray No. 5. (g) The claims against Alicia Elliott [459] I will begin with Elliott No. 3, which is the first in time, posted on December 12, 2016 as part of 22 posts on Twitter. In the Background and Outline of Events above, I have also set out some of the other posts of which Elliott No. 3 was part. [460] Ms. Elliott says that, when Elliott No. 3 was posted, as a result of wide-spread media reports in November (including Mr. Galloway's own "apology" on the UBC Accountable website and Ms. Birenbaum's open letter on behalf of A.B.), readers would have been aware that Mr. Galloway was reported to have had a sexual relationship with a student (that is, A.B.), that allegations of sexual assault had been made against him, and that he had been terminated by UBC (in circumstances prompting the UBC Accountable Letter). In that context, no defamatory meaning, in the sense required, could be attached to her words. [461] I do not agree. Ms. Elliott's words clearly refer to Mr. Galloway ("the Galloway case") and imply that (based on the definition used in the report of the UBC Sexual Assault Panel) he was guilty of sexual assault, in other words, criminal conduct. In my view, Ms. Elliott's words are capable of bearing a defamatory meaning, namely that Mr. Galloway was

guilty of sexual assault. [462] Elliott No. 2 is next in time, published on December 29, 2016. Ms. Elliott says that it was not defamatory of Mr. Galloway and cannot bear either the pleaded meaning or any defamatory meaning. It did not refer to Mr. Galloway nor did it reference UBC Accountable, for example. Rather, it was directed at author Joseph Boyden. [463] In this case, I agree with Ms. Elliott. I am not persuaded that Elliott No. 2 is capable of bearing the pleaded meaning (that Mr. Galloway had committed rape and sexual assault) or a meaning defamatory of Mr. Galloway. Moreover, although Mr. Galloway had some connection with Mr. Boyden (through the UBC Accountable Letter), I am not persuaded that a reasonable person who knew Mr. Galloway would conclude that Elliott No. 2 was of and concerning Mr. Galloway. [464] Elliott No. 1 follows, on January 13, 2017. Here, the references to Mr. Galloway are explicit and repeated. However, I conclude, for the purpose of Ms. Elliott's PPPA Application, that her words are not capable of bearing the pleaded meaning, that Mr. Galloway had committed rape and sexual assault of A.B., and A.B. was one of the "survivors" who "wouldn't shut up." Rather, in context, a reasonably thoughtful and informed reader of Elliot No. 1 would understand that Ms. Elliott is speaking about allegations that had been made against Mr. Galloway, and not

asserting or implying that the allegations are true. Consequently, Elliott No. 1 is not defamatory of Mr. Galloway. [465] I draw the same conclusion with respect to Elliott No. 4, Ms. Elliott's statement in connection with her crowdfunding initiative. [466] Elliott No. 4 refers to Mr. Galloway by name, so there is no doubt he is included among the "powerful men." However, in my view, Elliott No. 4 is also a case where a reasonable reader would draw a distinction between allegations that have yet to be proved, and a statement implying that Mr. Galloway had in fact committed rape and sexual assault (and therefore was guilty). I am, therefore, not persuaded that Elliott No. 4 bears either the pleaded meaning or a defamatory meaning. [467] The result is that Mr. Galloway has shown grounds to believe that his claim in respect of Elliott No. 3 has substantial merit. However, in my view, he has not met his burden with respect to Elliott No. 1, Elliott No. 2 or Elliott No. 4. (h) The claim against Glynnis Kirchmeier [468] Ms. Kirchmeier accepts that Kirchmeier No. 1 was published and that it refers to Mr. Galloway. However, Ms. Kirchmeier says that, taken in its full context, Kirchmeier No. 1 is not defamatory, and that Mr. Galloway cannot show that her words bear either the pleaded meaning or any defamatory meaning. Ms. Kirchmeier says that, as a result, Mr. Galloway cannot show that

his claim has substantial merit. [469] I repeat here, for convenience, Ms. Kirchmeier's posts on Twitter on February 6, 2018: Steven Galloway is widely assumed to be litigious. It serves his interests well to control the narratives which are allowed to be printed . . . In contrast, @walrusmagazine previously published a piece so not fact-checked TWO anon sources came out publicly to denounce it. That piece said Galloway had an "affair," which we now know is what he calls raping/sexually harassing a student. But it set the narrative for 1 + year [470] Ms. Kirchmeier says that whether her second post bears either the pleaded or any defamatory meaning turns on the meaning of "raping/sexually harassing." Ms. Kirchmeier says that Mr. Galloway must persuade the court that "raping/sexually harassing" means "raping and sexually harassing," not "raping or sexually harassing." Ms. Kirchmeier says that the slash mark is widely understood (including on Twitter) as a short form for "or" or "and/or." That was what she intended. [471] However, I do not think that the use of a slash mark can neutralize what comes before it: the accusation that Mr. Galloway was guilty of raping a student. When I am considering the meaning of the statement and whether it is defamatory, Ms. Kirchmeier's intentions are irrelevant. In my view, Kirchmeier No. 1, in its full context, is capable of leading a

reasonable person to conclude that Mr. Galloway had raped a student, thereby asserting that he had engaged in criminal conduct. That is sufficient to establish that Kirchmeier No. 1 is defamatory of Mr. Galloway. [472] The result is that Mr. Galloway has shown that there are grounds to believe his claim in respect of Kirchmeier No. 1 has substantial merit. (i) The claims against Brit Bachmann [473] Although Bachmann No. 1 and Bachmann No. 2 are pleaded as separate defamations, I will deal with them together. [474] I have set out the context and the full posts in the Background and Outline of Events, under the heading "The 2018 Golden Globes and Margaret Atwood." [475] Ms. Bachmann says that neither Bachmann No. 1 nor Bachmann No. 2 are defamatory of Mr. Galloway. [476] Moreover, Ms. Bachmann says that she has no recollection and no record of ever having published the post that contains Bachmann No.

2. However, Brad Cran confirmed that he read the publication on the Internet, and Ms. Bachmann acknowledged on cross-examination that she did not doubt that she published that post. I conclude that Mr. Galloway has shown grounds to believe Bachmann No. 2 was published on Twitter. [477] Ms. Bachmann says that neither Bachmann No. 1 nor Bachmann No. 2 bear a defamatory meaning, and neither is "of and concerning" Mr. Galloway. I do not agree. The hashtag (used in both posts) #ubcaccountable was closely associated with Mr. Galloway, even if he was not the exclusive or only topic. Indeed, in the second post (containing Bachmann No. 2), Ms. Bachmann urged readers to "Search the #UBCAccountable hashtag" where they would find "an open letter interpreted to be in solidarity with a prof who sexually assaulted a student." The "prof" in the "open letter" is Mr. Galloway. The posts were, in my view, both capable of referring to Mr. Galloway and would lead reasonable people, who knew Mr. Galloway, to the conclusion that they did in fact refer to him. A reasonable reader would understand Ms. Bachmann's words to mean that A.B. was the "survivor" of sexual assault and that Mr. Galloway was the perpetrator. By her words, Ms. Bachmann asserted that Mr. Galloway was guilty of criminal conduct. [478] In her submissions, Ms. Bachmann argues that her posts, on their own, did little or nothing to harm

Mr. Galloway's reputation. However, that is not relevant at this stage. Rather, damage is presumed in a defamation case: Neufeld, at para. 55. [479] The result is that Mr. Galloway has shown grounds to believe that his claims in respect of both Bachmann No. 1 and Bachmann No. 2 have substantial merit. (j) The claim against Theresa Smalec [480] Ms. Smalec accepts one of the elements of a defamation claim - publication - has been established with respect to Smalec No.1. However, Ms. Smalec says that Mr. Galloway cannot meet his burden with respect to the other two elements of a defamation claim, and therefore cannot show grounds to believe that his claim has substantial merit. [481] Ms. Smalec says that Mr. Galloway cannot show that Smalec No. 1 was "of and concerning" him. I do not agree. The same reasoning that applies to A.B. No. 2 on this point applies to Smalec No.

1. Moreover, while it might be said (as Ms. Smalec does) that the Art Exhibit "never even identifies the student," both the Gallery's statement and A.B.'s artist's statement make it quite clear that A.B. is, in fact, the student, and the Rape Narrative is hers. The Smalec Article says expressly that the "[Art Exhibit] derives from what [A.B.] calls her 'Rape Narrative': a document the artist wrote as part of a larger investigation into the professor's alleged misconduct." [482] However, and more importantly, Ms. Smalec says that Smalec No. 1, in the context of the Smalec Article, does not bear either the pleaded or any defamatory meaning. She points out that, for example, she used words such as "claims," "alleged" or "reported" to describe the content of the Art Exhibit, and she says that she expressly noted that the purpose of the Smalec Article was not to comment on the truth of A.B.'s allegations. Therefore, Ms. Smalec says, when her words are taken in the context of the whole of the Smalec Article, they are not defamatory of Mr. Galloway. [483] In my view, and in the context of her PPPA Application, the answers to Ms. Smalec's position concerning whether Smalec No. 1 bears a defamatory meaning are found in the excerpts from Lewis v. Daily Telegraph referred to above in the discussion of meaning, and in the repetition rule. It is true that the Smalec Article uses words like

"claims" and "reported," and Ms. Smalec says that she does not know what happened. In so doing, Ms. Smalec attempts to distance herself from A.B. and the explicit content of the Art Exhibit. However, elsewhere in the Article, Ms. Smalec repeats what is in the Rape Narrative and (either explicitly or implicitly) expresses her belief that A.B.'s rape allegations are true. In my view, this is sufficient to establish, for the purposes of Ms. Smalec's PPPA Application, that the words in Smalec No. 1 are capable of bearing the pleaded defamatory meaning, that Mr. Galloway raped and sexually assaulted A.B. [484] The result is that, in my view, Mr. Galloway has shown grounds to believe that his claim in respect of Smalec No. 1 has substantial merit. (k) The claims against Kiera Anderson [485] Dr. Anderson's full posts, containing Anderson No. 1 and Anderson No. 2, are also set out in the Background and Outline of Events, under the heading "The Golden Globes and Margaret Atwood." [486] Dr. Anderson says that Mr. Galloway's claims in respect of Anderson No. 1 and Anderson No. 2 not only lack substantial merit but have no merit. [487] I do not agree. [488] Based on the record, both Anderson No. 1 and Anderson No. 2 were published, and both identify Mr. Galloway by name. A reasonable person reading each post would understand Dr. Anderson to be asserting that Mr. Galloway had assaulted or

sexually assaulted A.B. (the "survivor"), in other words, that he had engaged in criminal behaviour towards A.B. Such assertions are defamatory of Mr. Galloway. [489] The result is that Mr. Galloway has shown grounds to believe that his claims in respect of Anderson No. 1 and Anderson No. 2 have substantial merit. (l) The claim against Arielle Rombough [490] Arielle Rombough's full post, containing Rombough No. 1, is also set out in the Background and Outline of Events, under the heading "The Golden Globes and Margaret Atwood." [491] Ms. Rombough says that Mr. Galloway cannot show that his claim in respect of Rombough No. 1 has substantial merit because, given all that had happened by the time the post was made, there was no realistic threat that the post, or Rombough No. 1, would tend to lower Mr. Galloway's reputation in the eyes of a reasonable person. It is argued that this was because, by January 2018, Mr. Galloway already had a bad reputation, and nothing in Rombough No. 1 could damage it further. Therefore, Mr. Galloway cannot show that the words in Rombough No. 1 were defamatory. [492] I do not agree. [493] Rombough No. 1 asserts that Mr. Galloway is guilty of sexual assault - criminal conduct - and was fired by UBC for that reason. These assertions are defamatory on their face. Falsity and damage are presumed. Mr. Galloway is not required to prove that, as of January

2018, he had a "good" reputation. Rombough No. 1 would be understood by a reasonable person to mean that Mr. Galloway had committed sexual assault. This is sufficient to satisfy the requirements for a defamation claim. [494] The result is that Mr. Galloway has shown grounds to believe that his claim in respect of Rombough No. 1 has substantial merit. (m) The claims against Marcelle Kosman [495] Dr. Kosman says that the posts containing Kosman No. 1 and Kosman No. 2 are not defamatory, and that, accordingly, Mr. Galloway cannot show there are "grounds to believe" his claims against her have substantial merit. Dr. Kosman says that both Kosman No. 1 and Kosman No. 2 are taken out of context, and Kosman No. 2 does not even mention Mr. Galloway (therefore failing on the "of and concerning" element of a defamation claim). Moreover, Dr. Kosman says that, in context, neither Kosman No. 1 nor Kosman No. 2 is capable of bearing a defamatory meaning, much less the pleaded meaning (that Mr. Galloway committed violent assaults). [496] As part of her argument that Mr. Galloway has failed to show that her statements were "of and concerning him," Dr. Kosman argues that she and many others used "#UBCAccountable" and even "#Galloway" and #stevengalloway as shorthand to refer to and talk about a broad range of issues, including relationships between professors and students. However, as discussed

above, Dr. Kosman's subjective intentions and interpretation are irrelevant with respect to meaning. On the record before me, a reasonable person would understand #ubcaccountable and #galloway, used in the context of a discussion of sexual assault or inappropriate relationships between professors and students, to be a reference to Mr. Galloway, even if the terms were also used in other ways. [497] Dr. Kosman says that, at worst, Kosman No. 1 is only a statement of a general opinion, namely, that the truth, if any, of allegations made against Mr. Galloway cannot be known and consequently cannot be accounted for. Dr. Kosman says that Kosman No. 1 would not be construed by a reasonable person to lower Mr. Galloway's reputation. [498] I do not agree. In my opinion, the meaning that an ordinary person would draw from Kosman No. 1, in context, is that Mr. Galloway was a violent person, who had committed violent assaults. I conclude that Kosman No. 1 is defamatory of Mr. Galloway, in that it implied that Mr. Galloway was a violent person, guilty of criminal conduct. [499] With respect to Kosman No. 2, Dr. Kosman says it would be understood by the reasonable person as a statement about educational responsibilities, nothing more. [500] Again, I do not agree. In context, a reasonable person would understand that the words referred to Mr. Galloway (the author of "The Cellist of

Sarajevo"). The natural and ordinary meaning of the words is that Mr. Galloway is a rapist. Accordingly, Kosman No. 2 is defamatory of Mr. Galloway, as it implies that he is guilty of criminal conduct. [501] The result is that Mr. Galloway has shown grounds to believe his claims in respect of Kosman No. 1 and Kosman No. 2 have substantial merit. (n) Summary [502] In summary, I conclude that Mr. Galloway has shown grounds to believe that the following claims have substantial merit: ● A.B. No. 1 and A.B. No. 2 ● Maillard Nos. 1, 2 and 3 ● Lyon No. 1 and Lyon No. 2 ● Rooney Nos. 1-7 ● Gray Nos. 1-3 and Gray Nos. 6-7 ● Elliott No. 3 ● Kirchmeier No. 1 ● Bachmann No. 1 and Bachmann No. 2 ● Smalec No. 1 ● Anderson No. 1 and Anderson No. 2 ● Rombough No. 1 ● Kosman No. 1 and Kosman No. 2 [503] On the other hand, in my view, Mr. Galloway has failed to show grounds to believe that the following claims have substantial merit: Maillard No. 4, Gray Nos. 4 and 5, Elliott No. 1, Elliott No. 2 and Elliott No. 4. [504] As I have concluded that Mr. Galloway has failed to show grounds to believe that his claims concerning Maillard No. 4, Gray Nos. 4 and 5, Elliott No. 1, Elliott No. 2 and Elliott No. 4 have substantial merit, I do not intend to address those claims in the next section.

9. Has Mr. Galloway shown grounds to believe that an Applicant has no valid defence? - s. 4(2)(a)(ii) (a) Introduction [505] In this section, I will address the Applicants' defences in play only for those claims I have concluded have substantial merit, as summarized above. I repeat that any finding or conclusion is expressly limited to the PPPA Applications. I also repeat that none of my findings or conclusions should be interpreted as prejudging either the merits of any of Mr. Galloway's claims, or, where I conclude a defence is not a valid defence, the ultimate merits of that defence. At this stage, in order for Mr. Galloway to satisfy his burden under PPPA s. 4(2)(a)(ii), I do not need to find conclusively that there is no valid defence. Rather, Mr. Galloway will meet his burden provided I am satisfied there is a basis in the record and the law, taking into account the stage of the proceeding, to support a finding that the defence(s) the Applicant has put in play do not tend to weigh more in the Applicant's favour (see Bent, at para. 103). [506] As can be seen from the Appendices, most Applicants have put multiple defences in play with respect to each publication in issue. In this section, I will focus my analysis on the defences in play that, in my view, have the strongest prospect of being valid defences. I do this because Mr. Galloway's failure to discharge his burden to

show that there is no valid defence to a claim means that the Applicant must succeed on the PPPA Application, even before the "weighing" under s. 4(2)(b). To put it somewhat differently, if, in respect of a publication, there is a valid defence, Mr. Galloway's claim fails and the Applicant must succeed. Once I have identified a valid defence (in the sense described in Pointes and Bent), there is, in my view, no real utility in conducting an analysis (essentially in the alternative) for all of the other defences pleaded. Doing so would merely increase the length of these already very lengthy Reasons, with no real benefit. [507] On the other hand, where an Applicant has put multiple defences in play, to reach a conclusion that there is no valid defence will require analysis of all of the defences in play for the publications for that Applicant. (b) A.B. No. 1, Maillard No. 1, Lyon No. 1 and No. 2 and Rooney No. 1: the Limitation defence; other defences [508] A.B., the Professors and Ms. Rooney say that Mr. Galloway's claims in respect of A.B. No. 1, Maillard No. 1, Lyon Nos. 1 and 2 and Rooney No. 1 are all statute-barred under the Limitation Act. They say that the limitation period for these claims (arising out of events in November 2015) had long-since expired by the time the NCC was filed on October 26, 2018. They argue that, in respect of these claims, Mr. Galloway cannot

meet his burden to show that they have no valid defence, based on the expiry of the limitation period. [509] Mr. Galloway says that, in respect of publications that occurred prior to October 26, 2016 (two years before the NCC was filed), he had not "adequately discovered" any of the defamations, within the meaning of s. 8 of the Limitation Act. Mr. Galloway argues that, in considering whether he has met his burden to show that the limitation defence is not a valid defence, it is important to keep in mind what is required for a defamation action. In this case, Mr. Galloway says that it is not mere knowledge that A.B. was telling people that he had raped and sexually assaulted her, and that others (Professor Maillard, Professor Lyon and Ms. Rooney) were repeating her claims. Rather, Mr. Galloway says that a defamation claim requires knowing with some precision who said what to whom. He argues that s. 8(d) of the Limitation Act requires sufficient knowledge of the "nature" of the damage, and also that a court proceeding would be an "appropriate" means to remedy the damage. [510] Mr. Galloway argues further that, whether suing for defamation is "appropriate" does not depend only on unconfirmed information that a (potentially) defamatory statement was made. Mr. Galloway argues that a potential plaintiff in a defamation action must also consider the setting in which the statement was

made and whether it would provide a defence, and consider whether the statement was made in a manner that was likely to cause harm. Mr. Galloway says that this, in turn, requires an examination of the circumstances. Mr. Galloway says that he had insufficient knowledge of what took place in late 2015 until the picture became clearer through the arbitration process in 2017 and later. Therefore (Mr. Galloway argues), it cannot be said that, in respect of publications before October 26, 2016, he knew or reasonably ought to have known either all the relevant facts or that a court proceeding would be the "appropriate means to seek to remedy" the damage he says he suffered. The result, Mr. Galloway says, is that there are grounds to believe that the limitation defences are not valid defences. [511] Mr. Galloway says that the materials he was given in January 2016 - specifically the notes of the November Meeting - do not reveal nearly as much as suggested, and do not reveal critically important information on which to found a defamation claim or determine if one is appropriate. Mr. Galloway says that, on the contrary, these notes give an incomplete and misleading picture of context and statements made, both of which are vital to considering whether suing for defamation is "appropriate." Mr. Galloway says that, in relation to Rooney No. 1, the information contained in what he received

in early 2016 about what Ms. Rooney said was inconsistent. [512] Mr. Galloway says that, in addition, while the grievance and arbitration process was ongoing, he was under confidentiality restrictions and could not act in a way that could potentially jeopardize that process, which was not completed until 2018. Mr. Galloway says that he was being "cautioned throughout the grievance process" to keep the arbitration information confidential and not reveal any of it publicly. Mr. Galloway says that this is an important point in relation to whether it was "appropriate" for him to bring court proceedings any earlier than he did. [513] With respect to the Boyd Investigation, and the materials he received in connection with the Investigation, Mr. Galloway says that the confidentiality agreement, by its terms, did not prevent him disclosing information to the extent necessary to defend himself against the allegations made against him. However, Mr. Galloway says, while he could defend himself, he considered that using the information disclosed to him to launch a lawsuit seeking damages for defamation was quite different. [514] Mr. Galloway also says that, at the time, he was: . . . in a devastated emotional and medical state and was in no condition to commence proceedings, subject myself or my children to the further publicity and the risks and stresses that would put on my own mental

and medical state. [515] Mr. Galloway says that, in addition, for much of the period from January to late September 2018, he was involved in an intense period in the arbitration proceedings, which had him working day and night. He says that it was highly emotional and upsetting, and he could not emotionally or practically deal with anything else. [516] Not infrequently, resolution of a limitation defence can require a "deep dive" into evidence. However, in my view, here, the facts relevant to the limitation defences are largely uncontested. There are grounds to believe that the claims in respect of A.B. No. 1, Maillard No. 1, Lyon Nos. 1 and 2 and Rooney No. 1 had been discovered by not later than July 2016. At that point, the limitation period for those claims began to run. [517] As I noted in the Background and Outline of Events, by the end of February 2016, Mr. Galloway had received the following materials in connection with the Boyd Investigation: Professor Lee's notes of the November Meeting; A.B.'s 18-page Rape Narrative; the witness statement from Ms. Flegg; and a supplementary witness statement from Ms. Rooney. Mr. Galloway acknowledged this in his evidence. These documents disclose that: A.B. had stated A.B. No. 1 to Professor Maillard, Professor Lyon and Ms. Rooney (at least); A.B. No. 1 was repeated at the November Meeting; Maillard No. 1 and Lyon Nos. 1 and 2 had

been communicated (or "published") to persons at the November Meeting, in circumstances where no one contacted Mr. Galloway to hear his side of events (therefore making a defence of qualified privilege at least questionable, if not quite doubtful); and Ms. Rooney had communicated Rooney No. 1 to Ms. Flegg at the very least, and almost certainly others. By June 2016, Mr. Galloway had received a complete copy of the Boyd Report. The complaints set out in the Second Grievance Letter include complaints about the November Meeting and about Ms. Rooney contacting other students in November 2015. These are things that Mr. Galloway knew or ought to have known about. [518] I reject Mr. Galloway's assertion that, by October 26, 2016 (two years before the NCC was filed), he did not know, or could not reasonably ought to have known, in relation to all of A.B. No. 1, Maillard No. 1, Lyon Nos. 1 and 2 and Rooney No. 1, that: he had sustained loss or damage; loss or damage was caused or contributed to by each of these statements being made; and the acts were those of A.B., Professor Maillard, Professor Lyon and Ms. Rooney. His evidence is very much to the contrary. [519] Mr. Galloway certainly knew by January 2016 that A.B. was accusing him of rape, sexual assault and assault. Although he did not know the full scope of A.B.'s reports, well before October 26, 2016 Mr. Galloway knew that she had

reported her claims to Professor Maillard, Professor Lyon and Ms. Rooney. He knew (or, based on the notes of the November Meeting, ought to have known) that her claims were repeated by Professor Maillard and Professor Lyon at the November Meeting. I do not agree with Mr. Galloway that the notes of the November Meeting did not sufficiently disclose Lyon No. 1 and Lyon No. 2 for the limitation period to begin to run before October 2016. Rather, in the discussion above of the November Meeting and Professor Lee's notes, I have identified where Lyon No. 1 and Lyon No. 2 can be located. Mr. Galloway reported in his July 13, 2018 National Post article that the documents he received in January 2016 as part of the Boyd Investigation - the signed complainant statements - disclosed that individuals had been told that he had choked and raped A.B. Mr. Galloway himself drew the direct link between A.B.'s claims, the communication of those claims to others, and what he asserts was the almost immediate and devasting harm to his reputation. [520] On the record before me, I conclude that all of the elements of a defamation claim were known to Mr. Galloway, in respect of A.B. No. 1, Maillard No. 1, Lyon Nos. 1 and 2 and Rooney No. 1, well before October 26, 2016. [521] By his submissions, Mr. Galloway suggests that his claims in respect of A.B. No.1, Maillard No. 1, Lyon Nos. 1 and 2 and Rooney

No. 1 were, at the relevant time, still too uncertain to satisfy the discoverability criteria in s. 8 of the Limitation Act. However, I do not agree. Lack of legal certainty is irrelevant to the discoverability of a claim. Rather, what is required is that a plaintiff knew or reasonably ought to have known the facts to ground a defamation claim. The principle is explained by Graeme Mew, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016) at §3.50: The knowledge required to start the limitation running is more than suspicion and less than perfect knowledge. Or, to put it another way, the plaintiff need not be certain that the defendant's act or omission caused or contributed to the loss in order for the limitation period to begin to run. The limitation begins to run from when the plaintiff had, or ought to have had, sufficient facts to have prima facie grounds to infer that the defendant's acts or omissions caused or contributed to the loss. [522] What then of Mr. Galloway's assertion that, even if he was aware of facts amounting to a prima facie defamation claim in respect of A.B. No. 1, Maillard No. 1, Lyon Nos. 1 and 2 and Rooney No. 1 before October 26, 2016, he was nevertheless not in a position to have known, or where he reasonably ought to have known, that a court proceeding would be the appropriate means to seek to remedy the damage because of his personal

circumstances at the time. Therefore (Mr. Galloway argues), the criterion for discoverability in s. 8(d) of the Limitation Act has not been satisfied, and the limitation defences are not valid defences. [523] In respect of this part of his argument, Mr. Galloway relies on Novak v. Bond. That case considered the provisions of the former Limitation Act, R.S.B.C. 1996, c. 266, and specifically s. 6(4), which (in contrast to s. 8 of the current Act) provided [underlining added]: (4) Time does not begin to run against a plaintiff or claimant with respect to an action referred to in subsection (3) until the identity of the defendant or respondent is known to the plaintiff or claimant and those facts within the plaintiff's or claimant's means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that (a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and (b) the person whose means of knowledge is in question ought, in the person's own interests and taking the person's circumstances into account, to be able to bring an action. [524] In argument, Mr. Burnett cited para. 67 of Novak, where McLachlin J. (as she then was) wrote, again referring to the former

Limitation Act [underlining added]: 67 The result of this legislative and interpretive evolution is that most limitations statutes may now be said to possess four characteristics. They are intended to: (1) define a time at which potential defendants may be free of ancient obligations, (2) prevent the bringing of claims where the evidence may have been lost to the passage of time, (3) provide an incentive for plaintiffs to bring suits in a timely fashion, and (4) account for the plaintiff's own circumstances, as assessed through a subjective/objective lens, when assessing whether a claim should be barred by the passage of time. To the extent they are reflected in the particular words and structure of the statute in question, the best interpretation of a limitations statute seeks to give effect to each of these characteristics. [525] McLachlin J. commented further, at paras. 84-86 [underlining in original]: 84 Interpreting "ought . . . to be able to bring an action" in the second sense permits full weight to be given to all the words of s. 6(4)(b). The running of the limitation period is therefore postponed when the plaintiff shows that practical considerations arising from his or her "circumstances" and "own interests" render him or her unable, as a reasonable person, to bring an action at the earlier prescribed date. "[O]ught . . . to be able to bring an action", interpreted

thus, is very different from the normative "should bring an action". "Should" connotes subjective choice; "could" connotes practical ability. On the interpretation I have proposed, the court's central task is to identify the point at which the reasonable person who animates s. 6(4) would consider that the plaintiff, in light of his or her own interests and circumstances, could reasonably have brought an action. Section 6(4)(b) therefore refers to a time at which, in light of the plaintiff's particular situation, the bringing of a suit is reasonably possible, not when it would be ideal from the plaintiff's perspective to do so. 85 What "interests and circumstances" should be considered at this stage? In Frosch Construction, supra, at p. 79, Lambert J.A. held that only "important and substantial interests of the plaintiff in his or her own circumstances" should be considered. Practically speaking, the reasonable person would only consider that the plaintiff could not have brought an action at the time the right to do so first arose if the plaintiff's own interests and circumstances were serious, significant, and compelling. . . . 86 Whether a particular circumstance or interest has the practical effect of preventing the plaintiff from being able to commence the action must be assessed in each individual case. Section 6(4)(b) requires that the circumstances and interests of the

individual plaintiff be taken into account. What is a serious, substantial, and compelling interest in one case may not be so in another case. Purely tactical concerns play no role in this analysis because they do not relate to the practical ability of the plaintiff to bring an action, as assessed by a reasonable person who takes into account all his or her circumstances and interests [citation omitted]. [526] Again, and without doing a deep dive, I must reject Mr. Galloway's assertion. [527] The language in the former Limitation Act, which explicitly permitted the court to take into account a plaintiff's own interests and circumstances into account, and explicitly permitted an evaluation of whether it was in the plaintiff's interests to commence a proceeding, is altogether absent from s. 8 of the current Limitation Act. I agree with Ms. Zimmer's submissions (on behalf of Professor Maillard and Professor Lyon) that cases (including Novak v. Bond) discussing the application of the postponement provisions in s. 6(4) of the former Limitation Act are no longer relevant when interpreting s. 8 of the current Limitation Act. Based on the words used in s. 8(d), whether "a court proceeding would be an appropriate means" to seek to remedy damage, is assessed "having regard to the nature of the injury, loss or damage," not a plaintiff's personal circumstances The word "appropriate" should

be understood to mean legally appropriate, not personally appropriate or appropriate depending on personal circumstances. [528] In addition, in my opinion, Mr. Galloway's assertion that he was not in a position to have known, or where he reasonably ought to have known, that a court proceeding would be the appropriate means to remedy the damage from these statements is fundamentally inconsistent with his position concerning the Weber defence. Mr. Galloway says essentially that his claims in respect of these statements were always ones over which the court had jurisdiction, at least in part because only court proceedings offered the remedy of an injunction, and therefore the Weber defence did not apply. In those circumstances, a court proceeding was the only appropriate means to seek to remedy the damage Mr. Galloway claims to have suffered by the statements published in 2015. Thus, this is not a case where Mr. Galloway can credibly argue that he was justified in delaying filing court proceedings because an alternative dispute resolution process (arbitration) offered an adequate remedy. Indeed, he argues the opposite. [529] Finally, in my view, properly construed, the provisions of the confidentiality agreement signed by Mr. Galloway in connection with the Boyd Investigation did not prevent him from taking timely legal action to defend his reputation against defamatory

statements. [530] For these reasons, I conclude that Mr. Galloway has failed to meet his burden to show grounds to believe that the limitation defences raised in respect of A.B. No. 1, Maillard No. 1, Lyon Nos.1 and 2 and Rooney No. 1 are not valid defences and have no real prospect of success. [531] As a consequence of this conclusion, I will not be analyzing whether the other defences in play in respect of these statements are valid defences. Nevertheless, I will comment briefly on the defences of justification and qualified privilege. A plea of justification is treated as republication of the defamation. Malice can defeat the defence of qualified privilege, and is also relevant to the "weighing" for purposes of PPPA s. 4(2)(b). [532] Ms. Rooney raises justification as a defence in play respecting Rooney No.

1. As Mr. Burnett pointed out in his submissions on behalf of Mr. Galloway, Ms. Rooney has not pleaded justification as a defence, although she raised it in submissions on the hearing of the PPPA Applications. In any event, in my opinion, there are grounds to believe that this defence is not a valid defence. To succeed, Ms. Rooney would have to prove that her statement - that Mr. Galloway raped A.B. - was true. Under oath, Mr. Galloway has denied the events asserted by A.B. happened, and a "deep dive" would be required to resolve the significant and serious credibility issues. A.B. herself conceded as much in her submissions, and did not put justification "in play" as a defence. Although the findings in the Boyd Report concerning A.B.'s allegations of sexual assault are not binding on the court, and are not admissible to prove the truth of the facts found, in the context of the PPPA Applications, they also provide some evidence to support the conclusion that truth is not a valid defence. There is, therefore, a basis in the evidence, reasonably capable of belief, to support a finding that justification is not a valid defence in respect of Rooney No. 1. [533] Qualified privilege is raised as a defence in respect of all of A.B. No. 1, Maillard No. 1, Lyon Nos. 1 and 2 and Rooney No. 1. [534] However, in my view, and in the context of the PPPA Applications, it is doubtful that

either the November Meeting (and the events immediately proceeding it) or Ms. Rooney's communication of Rooney No. 1 would qualify as a privileged occasion, and, to the extent the occasion might be privileged, it was exceeded in both the scope and content of the communications. Moreover, in respect of all of these statements, there is strong evidence of malice, sufficient to say that there is a basis in the record and the law to support a finding that a defence of qualified privilege will be defeated on that basis. [535] By sending her November 13, 2015 letter to Dr. Piper, A.B. had triggered swift action from UBC, specifically from Mr. Hyson. Although Mr. Hyson's response was completely unsatisfactory to A.B., in my view, it cannot be accurately described as no meaningful response. The existence of this response, and the timing, undercuts the assertion that the November Meeting was an occasion of qualified privilege. I agree with Mr. Burnett's submissions that the timeline reveals that the November Meeting was planned before the appropriate UBC body was given any real chance to respond. The explanation that is offered - essentially that A.B. had to abandon the official process because she received no meaningful response, and the November Meeting had to go ahead - is self-serving and not persuasive. [536] Professor Maillard and Professor Lyon knew about Mr. Hyson's initial

response to A.B., because A.B. provided them with a copy of his e-mail (along with her criticisms). Professor Maillard's and Professor Lyon's cavalier dismissal was consistent with their general position of accepting at face value (without any critical examination) what A.B. told them or provided to them, and acting (as A.B. was pressing them to do) as A.B.'s advocates in pursuing a different process to deal with A.B.'s claims against Mr. Galloway. Indeed, Professor Lee's notes of the November Meeting indicate that the attendees were told A.B. had not received any response to her formal complaint. That was not true. There are also grounds to believe that Professor Maillard and Professor Lyon were motivated (at least in part) to do what A.B. wanted because of the pressure that would have been created by A.B.'s threats (in both her November 15 6:24 a.m. e-mail to Professor Maillard and the CBC Document) to go to the national media and to bring proceedings against members of the Creative Writing Department based on a failure to act. [537] Professor Maillard and Professor Lyon attempt to justify the events (based on the record before me) at the November Meeting on the grounds that the Creative Writing Department faculty members operated on the basis of "consensus." Thus (the argument goes), to arrive at a consensus, the November Meeting and the communications made at the Meeting

were all necessary as part of the duty to publish and receive information, so as to meet the test for qualified privilege. I do not find this at all persuasive. The "consensus" theory implies that a consensus was required to do anything, and that there were alternatives open, any one of which could have been the "consensus" at the end of the Meeting. It implies that, if the consensus of the November Meeting was to do nothing, nothing would have been done. I do not accept this, and I give the consensus theory, to the extent it is being presented with a view to creating a privileged occasion, no weight. Based on the contents of Policy 3, the reporting lines were clear. Once Professor Maillard and Professor Lyon learned what A.B. was claiming, the appropriate person to whom A.B.'s claims respecting Mr. Galloway ought to have been reported was the Dean of Arts. No "consensus" was required to achieve that result, nor was the widespread repetition of A.B.'s claims against Mr. Galloway at the November Meeting. On the record, however, the step of reporting to the Dean was taken only at the conclusion of the November Meeting, and after the broad and damaging communication of A.B.'s claims, far beyond what could be justified on a "privileged" occasion. [538] For the purpose only of the PPPA Applications, I find that A.B. is responsible for the republication of her claims against Mr.

Galloway at the November Meeting. In that context, and even assuming the occasion was privileged, I find that there is a basis in the evidence, reasonably capable of belief, to support a finding of malice against A.B. [539] The CBC Document was a tissue of lies, which A.B. knew was going to be presented at the November Meeting. Indeed, its purpose was to provide "evidence" to "build the case" against Mr. Galloway. The CBC Document was a deliberate fabrication, designed to persuade those attending the November Meeting that Mr. Galloway was guilty of rape, that lawyers at the CBC who had heard A.B.'s story had accepted it as reliable and true, and that the story would be taken to a national audience unless the faculty acted. Thus, in the CBC Document, A.B. manufactured a story for the occasion. This, in my view, provides a basis in the record to conclude that, in relation to A.B. No. 1, a defence of qualified privilege (assuming a privileged occasion) would be defeated by malice. Therefore, and in the context of A.B.'s PPPA Application, there are grounds to believe that qualified privilege is not a valid defence in respect of A.B. No. 1. [540] In addition, A.B.'s e-mail communications with Ms. Rooney, and her active encouragement of Ms. Rooney to contact others, to report A.B.'s claim of sexual assault with the object of finding more individuals with similar claims against Mr.

Galloway (including providing Ms. Rooney with names), provide a basis in the evidence, reasonably capable of relief, to conclude that a qualified privilege defence would be defeated by malice. [541] Moreover, there are grounds to believe that all of Professor Maillard, Professor Lyon and Ms. Rooney were reckless in relation to A.B.'s report to them that Mr. Galloway had raped, sexually assaulted and physically assaulted her. [542] On the record, Professor Maillard and Professor Lyon asked A.B. no questions. They simply accepted her version of events as accurate, and relied on what she told and provided to them as supporting and proving what she claimed to have happened. This would not have been a problem had Professor Maillard and Professor Lyon gone directly to the Dean with A.B.'s claims. But they did not. [543] In relation to Mr. Galloway's longer voice-mail message (Voicemail No. 2), it appears never to have occurred to either Professor Maillard or Professor Lyon to pause and think whether it made any sense at all for Mr. Galloway to leave a voice-mail message, one in which he indicated a desire to come clean to his mentor (Professor Maillard) before A.B. spoke to Professor Maillard, to confess (to A.B., his accuser) to a very serious crime (rape). Rather, both Professor Maillard and Professor Lyon accepted without question A.B.'s version of events, and (as they were being

strongly encouraged by A.B. to do) they treated Voicemail No. 2 as further proof of Mr. Galloway's guilt. That was the version of the facts presented to the attendees at the November Meeting. [544] Professor Maillard and Professor Lyon embraced their roles as A.B.'s allies and advocates in presenting what A.B. described as "our case" against Mr. Galloway. In A.B.'s e-mail communications with Professor Maillard and Professor Lyon before the November Meeting, A.B. never mentioned that she and Mr. Galloway had been in a relationship beginning in 2011 and ending in 2013. Rather, her communications imply the opposite (that she and Mr. Galloway had "no 'relationship' whatsoever"), and that Mr. Galloway was continuing to prey on and was a serious threat to her. What A.B. told Professor Maillard and Professor Lyon about her contact with the CBC was a fiction. However, both Professor Maillard and Professor Lyon again asked no questions, and the CBC Document was presented at the November Meeting as if it was a true statement of the facts. Neither Professor Maillard nor Professor Lyon contacted Mr. Galloway to warn him about what was going on, or to get his side of events. Indeed, based on Professor Lee's notes of the November Meeting, Professor Maillard went out of his way in a phone call with Mr. Galloway to deceive him. Both Professor Maillard and Professor Lyon refused to answer Mr.

Galloway's phone calls. [545] In my view, and in the context of the PPPA Applications, all of this provides grounds to believe that Professor Maillard and Professor Lyon were reckless so as to meet the legal test for malice, and their malice would defeat a defence of qualified privilege respecting Maillard No. 1 and Lyon Nos. 1 and 2. [546] As for Ms. Rooney, on the record, there are grounds to believe that she was motivated by spite and ill-will toward Mr. Galloway. She was clearly pre-disposed to believe the worst of Mr. Galloway, and motivated (with encouragement from A.B., Professor Maillard and Professor Lyon) to recruit others to her point of view. Moreover, and like Professor Maillard and Professor Lyon, Ms. Rooney accepted A.B.'s reports at face value as true, and never asked any questions before communicating Rooney No. 1 to more than a dozen people. Her conduct was, therefore, also reckless. [547] To carry out what Ms. Rooney says was the task given to her by Professor Maillard (that is, locate others with possible complaints against Mr. Galloway), there was no need at all to describe A.B.'s rape and sexual assault claims. There was either no "occasion" at all, or Ms. Rooney, in her communications, greatly exceeded it. In either case, there are grounds to believe that a defence of qualified privilege is not a valid defence. That any occasion was greatly exceeded by

what Ms. Rooney did is illustrated by the letter Ms. Rooney was given on November 24 by UBC's Equity Office for distribution, which was completely devoid of any details of A.B.'s claims. If Ms. Rooney had some duty, her description of A.B.'s claims against Mr. Galloway were not necessary to the discharge of that duty. I place no weight on the apparent "thanks" that Ms. Rooney received from UBC. Whether anyone at the Equity Office had any idea of what Ms. Rooney had actually been doing is unknown, and I am not prepared to treat the "thanks" as any kind of endorsement for her conduct. [548] Thus, on the record at this stage, there are grounds to believe Ms. Rooney's conduct went beyond the reasonable scope of any qualified privilege, and that it was also reckless and actuated by malice against Mr. Galloway. This is sufficient to conclude that, in respect of Rooney No. 1, there are grounds to believe qualified privilege is not a valid defence. (c) A.B. No. 2 - fair comment [549] In my view, and for the purposes only of the PPPA Applications, Mr. Galloway has satisfied his burden to show that A.B.'s defence of fair comment in respect of A.B. No. 2 is not a valid defence. [550] Although presented in an artistic form, the statements in A.B. No. 2 would be understood by a reasonable person, in the context in which they were presented, as statements of fact. The "sting" of the Art

Exhibit is that the Professor - that is, Mr. Galloway - committed rape and sexual assault of A.B. That is what a reasonable person would understand from A.B. No. 2 in context. These are not matters that are incapable of proof. A.B. No. 2 is a statement of facts, not comment on facts. [551] In my opinion, the only defence available for A.B. No. 2 is justification. Although A.B. pleads this as a defence, it is not a defence in play on her PPPA Application. (d) Maillard Nos. 2 and 3 - fair comment and qualified privilege (response to attack) [552] In my view, and for the purposes only of the PPPA Applications, there is a basis in the record and the law to say that the defence of fair comment does not tend to weigh more in Professor Maillard's favour in respect of either Maillard No. 2 or Maillard No.

3. Therefore, Mr. Galloway has met his burden to show grounds to believe that fair comment is not a valid defence. [553] I will address Maillard No. 2 first. The sting of Maillard No. 2 is that Mr. Galloway raped, sexually assaulted and physically assaulted A.B. This is not a comment on facts; rather it purports to be a statement of facts. As such, the only defence available is justification, not fair comment. In any event, there are grounds to believe that Professor Maillard was actuated by malice against Mr. Galloway, which would defeat a defence of fair comment. [554] I draw the same conclusion with respect to Maillard No.

3. The "story" which Professor Maillard believes (and which by September 2018 was notorious) was that Mr. Galloway had raped and sexually assaulted A.B. This is the sting of Maillard No.

3. It is not a comment on facts, but a statement of facts. The only defence is justification. [555] I turn then to Professor Maillard's defence of qualified privilege in response to attack, which he raises for both Maillard Nos. 2 and 3. The "attack" in this case is not on Professor Maillard. Rather, Professor Maillard says that he is responding to an attack on A.B., made when Mr. Galloway asserted that her claims that he raped and sexually assaulted her were false. [556] The facts here are far removed from those in Ward v. Clark. No Canadian case was cited to me that supported the proposition that qualified privilege extends to actions taken to defend others (a friend, for example), and that a person in Professor Maillard's position has a valid qualified privilege defence on that basis. In the early part of 2018, Mr. Galloway had said nothing publicly that could qualify as an occasion requiring some public response to an attack on A.B. Even if Mr. Galloway's National Post article could be described as an attack on A.B. (and in my view this is very doubtful), there is nothing in Maillard No. 3 to indicate this is what prompted Professor Maillard's response. [557] In submissions on this point, Ms. Zimmer, counsel for Professor Maillard, relied on a passage in Gatley on Libel and Slander, 12th ed., to support Professor Maillard's position that qualified privilege in response to

attack was a valid defence. The learned authors of Gatley say: Response to attacks on others. The privilege here discussed is not confined to attacks on the defendant, but extends to action taken by him to defend his family, friends, or even employees. [558] The case cited in Gatley is Vassiliev v. Frank Cass & Co. Ltd., [2003] EWHC 1428 (Q.B.), where the trial judge (Mr. Justice Eady) explained: 11. So far as the other theme is concerned, that is to say, reply to attack, the principles are well known. In paragraphs 14.49 and 14.50 of Gatley on Libel and Slander (9th Ed) the matter is summarised in this way: "A person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided they are published bona fide and are fairly relevant to the accusations made. 'The law justifies a man in repelling a libellous charge by a denial or an explanation. He has a qualified privilege to answer the charge; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged, though it be false. Mere retaliation, which cannot be described as an answer or explanation, is not protected, but the defendant is not required to be diffident in protecting himself and is allowed a

considerable degree of latitude in this respect. Qualified privilege is not available if the defendant is responding to an attack which he knows to be justified." 12. The learned editors go in paragraph 14.50 to deal with the general subject of responses to attacks on other persons: "The privilege here discussed is not confined to attacks on the defendant, but extends to action taken by him to defend his family. In Bowen-Rowlands v Argus Press, The Times, February 10th and March 26th 1926, the defendants, in a newspaper review of a book written by the plaintiff, quoted from the book a story told by the plaintiff about A, a well known public man then deceased, which story, if not actually defamatory of A, was clearly calculated to injure his daughter's feelings. A's daughter wrote a letter to the defendants in which she said that the story was 'pure invention from beginning to end; it is absolutely false, both as to matter and manner'. The defendants published this letter, without comment, in their newspaper. The plaintiff brought an action for libel alleging that the publication of this letter imputed that he had invented the story and told a deliberate lie, and was a slur upon his character as an author. It was held by the Court of Appeal that the letter, even if defamatory of the plaintiff, was published on a privileged occasion, for A's daughter was entitled to contradict

the story, and the defendants were entitled to publish such contradiction in their columns." In paragraph 14.53 the learned editors go on to discuss the matter of an agent protecting a principal's interest in a similar way. [559] What is described is very far from the facts here. I am not persuaded that Professor Maillard's defence (if it can be called that) of A.B. meets the test for a defence of qualified privilege in response to attack. [560] Moreover, in my view, Professor Maillard's motivation behind Maillard Nos. 2 and 3 was his malice toward Mr. Galloway. All of the evidence relating to malice that I discussed above in connection with the defence of qualified privilege concerning Maillard No. 1 also applies here. On the record before me, Professor Maillard continued into 2018 to demonstrate a reckless disregard for the truth and animosity towards Mr. Galloway - in other words, malice - in repeating the serious allegations against Mr. Galloway. [561] I find, therefore, and for the purposes of the PPPA Applications only, that Mr. Galloway has met his burden to show a basis in the record and the law to conclude qualified privilege is not a valid defence in respect of either Maillard No. 2 or Maillard No. 3. (e) Rooney Nos. 2-7 - justification and fair comment; Nos. 3-7 - consent [562] I will first address the defence of justification. [563] Ms. Rooney argues that each

statement of fact in Rooney Nos. 2-7 is true. For example, Ms. Rooney says, with respect to Rooney No. 3, that the statement consists of truthful statements that, when someone reports a sexual assault, others can be asked to believe the complainant and can choose to do so. Ms. Rooney says, with respect to Rooney No. 4, that the Twitter post referred to Ms. Birenbaum's statement published on November 24, 2016 on behalf of A.B., breaking her silence, and that it was also true that supporters of Mr. Galloway were continuing to use UBC Accountable to advance their opinions rather than acknowledge A.B.'s statement. [564] However, as Côté J. explained in Bent, at para. 107, to succeed on a defence of justification, a defendant must prove the substantial truth of the "sting" of the defamation, and the defence will fail if the publication is shown to have contained only accurate facts but the sting of the libel is not shown to be true. That, in my opinion, is the fundamental flaw respecting Ms. Rooney's justification defence for Rooney Nos. 2-7. On the law, the defence does not apply in the manner in which Ms. Rooney argues. Not surprisingly, given A.B.'s acknowledgment that her defence of justification is not a defence in play, Ms. Rooney does not attempt to justify the truth of the "sting," namely, that Mr. Galloway raped, sexually assaulted and physically assaulted A.B. [565] This

is sufficient, on the PPPA Application, for Mr. Galloway to meet his burden to show grounds to believe that, in respect of Rooney Nos. 2-7, a defence of justification is not a valid defence. [566] I turn next to the defence of consent, which is raised in respect of Rooney Nos. 3-7. Ms. Rooney says that Mr. Galloway implicitly consented to each of these statements, and, therefore, consent is a valid defence. [567] Ms. Rooney says that, when Rooney No. 2 was published, Mr. Olthuis (Mr. Galloway's lawyer at the time) contacted her to demand an apology and retraction, which Ms. Rooney provided. Ms. Rooney says that, going forward, she then modified her approach to her Twitter posts. Ms. Rooney argues that, by having Mr. Olthuis send a demand letter, she understood that Mr. Galloway had established that he or his lawyer would contact Ms. Rooney if they viewed any of her future statements as defamatory. However, no one contacted her about Rooney Nos. 3-7, until this action was filed. Ms. Rooney says that a reasonable person would have understood Mr. Galloway's silence following the apology and retraction of Rooney No. 2 as implicit consent to Rooney Nos. 3-7. [568] However, the authorities require considerably more than the kind of implicit consent described by Ms. Rooney. Rather, there must be evidence of deliberate consent to publish the words complained of: see Hanly v. Pisces,

referred to above. The "consent" cannot be passive. The record before me does not support "consent" as a valid defence. [569] I turn then to the defence of fair comment, raised in respect of Rooney Nos. 2-7. [570] In my view, and for the purposes of Ms. Rooney's PPPA Application, the essential problem with the defence of fair comment is that the sting of Rooney Nos. 2-7 would be understood as fact, not comment. As such, and as I discussed above, a defence of fair comment is not available. In addition, even if, in respect of some of these statements, a fair comment defence had been sufficiently pleaded and it was possible to distinguish what is fact and what is comment, there are grounds to believe that a fair comment defence would be defeated by Ms. Rooney's hostility and malice toward Mr. Galloway. [571] Accordingly, I conclude, for the purposes of Ms. Rooney's PPPA Application, that Mr. Galloway has met his burden to show grounds to believe that none of the defences in play is a valid defence. (f) Gray Nos. 1-3 and 6-7 - fair comment and responsible communication [572] I will first address the defence of fair comment. [573] In submissions, Mr. Burnett argued that (like other Applicants relying on fair comment as a defence in play), Ms. Gray had failed to plead any factual foundation for what Ms. Gray asserts is comment. Counsel for Ms. Gray disagrees. I have concluded that I

do not need to address the pleadings issue at this time. I will simply observe that a failure by a defendant to properly plead a fair comment defence could be a problem for that defendant later in the litigation. [574] As I discussed above, in addressing a defence of fair comment, it must first be determined whether the statement is comment on facts, or a statement of facts. In my opinion, all of Gray Nos. 1, 2 and 3 would be understood by a reasonable person as statements of fact, not comments on facts. In those circumstances, a fair comment defence is not available, and would not be a valid defence. However, responsible communication may be a defence. [575] I turn next to Gray No.

6. In my view, Gray No. 6 would be understood by a reasonable reader as including comment. However, the sting of Gray No. 6 would be understood as a statement of fact, not a comment on facts. As such, fair comment is not available as a defence, although responsible communication may be. [576] I draw the same conclusion with respect to Gray No. 7. [577] I turn then to Ms. Gray's defence of responsible communication. As I noted above, Grant is the leading decision on this defence. [578] Ms. Gray satisfies the first element of the responsible communication defence: the publications are on matters of public interest. [579] The second element requires Ms. Gray to show that the publication was responsible in that she was diligent in trying to verify the allegation(s), having regard to all of the relevant circumstances. [580] Ms. Gray says that she took all steps reasonably available to her to verify, in a responsible way, the truth of A.B.'s claims against Mr. Galloway. Ms. Gray says that she cannot be faulted for not getting Mr. Galloway's side of the story. She says doing so, or attempting to do so, was unnecessary because Mr. Galloway had already denied the claims. Thus, Ms. Gray says she already had information from both sides, and she simply found one side (A.B.) to be more credible. Ms. Gray says further that requiring her to seek or include Mr. Galloway's side of events in

order to establish a defence of responsible communication is, in the context of sexual assault allegations, harmful to the person claiming to have been assaulted. [581] In addition, Ms. Gray says that the "sting" of A.B.'s sexual assault claims was not serious because the fact that A.B. was making such claims was already public and becoming the subject of intense debate (illustrated by the UBC Accountable Letter and the response, including the Counter Letter and Ms. Birenbaum's open letter). However, in my view, this trivializes the harm to the person alleged to be the perpetrator, who is treated essentially as guilty of a serious crime because the allegation has been made. [582] Ms. Gray says further that it is absurd to suggest that she was required to do more investigation before publishing Gray No. 3 or Gray No.

7. She says that requiring her to do more or go further than she did advocates for a standard in sexual assault cases that would greatly damage victims, and, therefore, is harmful. Ms. Gray says that A.B. told her about her claims in confidence, and, in Ms. Gray's mind, A.B. was traumatized and terrified that Mr. Galloway would harm her. Ms. Gray says that it is dangerous and unrealistic to say that accounts of sexual misconduct provided by a victim in private to a trusted friend cannot be publicly supported (as Ms. Gray asserts she has done through her statements) until that friend (i.e., Ms. Gray) has sought out comments from the alleged perpetrator. Ms. Gray says that applying such a standard in the context of a responsible communication defence would create further chill for victims, who already frequently suffer in silence. [583] However, in my view, Mr. Galloway has shown a basis in the record and in the law, and taking into account the stage of the litigation, to conclude that there are grounds to believe Ms. Gray's defence of responsible communication is not a valid defence. [584] I am not persuaded that what the court in Grant had in mind in terms of "diligence" were circumstances in which a friend (as Ms. Gray was to A.B.) accepted without question or inquiry a claim of sexual assault (a very serious allegation), and discounted entirely even the need to consider (much

less investigate or report on) the position of the alleged perpetrator. I agree with Mr. Burnett that this is publicly advocating a position in support of a friend, and it is not responsible communication of balanced information. Uncritical acceptance of one version of events is the very opposite of the diligence required to support a defence of responsible communication. I do not accept Ms. Gray's argument that she should nevertheless benefit from a defence of responsible communication because asking questions of a person claiming to have been sexually assaulted is too traumatic. Taken to its logical conclusion, Ms. Gray's argument would allow anyone to publish (on the Internet, for example) claims of sexual assault without doing anything more than speaking to the person making the claim and asserting unqualified belief in what the person says, and then rely on the defence of responsible communication. This is not the purpose of the defence. [585] Given how the defence is described in Grant, and, in the context of Ms. Gray's PPPA Application, I conclude that there are grounds to believe a defence of responsible communication has no realistic hope of success, and is not a valid defence. (g) Elliott No 3 - justification and fair comment [586] I will first address Ms. Elliott's justification defence. [587] To succeed on this defence, Ms. Elliott would be required to prove the

truth of the sting and the meaning found by the court. It would not be enough to prove in relation to Elliott No. 3 that the document Ms. Elliott was referring to contained the words she quoted. On the record before me, Ms. Elliott is not in a position to prove the truth of the sting and meaning found by the court. [588] I conclude, therefore, that Mr. Galloway has met his burden to show, in respect of Elliott No. 3, that there are grounds to believe justification is not a valid defence. [589] I turn then to the defence of fair comment [590] Ms. Elliott says that her postings on Twitter (including Elliott No. 3) were her contribution to the broader public conversation surrounding #ubcaccountable and the UBC Accountable Letter. Following the events in November 2015 (and as I have described above), in the first part of 2016, Dr. Piper convened the UBC Sexual Assault Panel to assist in the drafting of a new policy concerning sexual assaults. (I note there is a temporal relationship, not necessarily any causal relationship.) Ms. Elliott says that, in Elliott No. 3, she quoted from the Panel's report, and then expressed her views in relation to "the Galloway case." She provided a link to the Panel's report. Ms. Elliott says that, as of December 12, 2016 (when she posted Elliott No. 3), it was well known that Mr. Galloway had been terminated by UBC and that he been accused by a

student of sexual assault. In his public apology, Mr. Galloway stated (with reference to the Boyd Report) that Ms. Boyd "found on a balance of probabilities that Mr. Galloway had not committed sexual assault," but that he had been found to have "engaged in inappropriate behaviour with a student." Ms. Elliott says, essentially, that these facts were well-known (certainly to her followers on Twitter), and provide a sufficient foundation for her "comment" in Elliott No.

3. Ms. Elliott says that her honestly held opinion - that including the impact of a power imbalance or breach of trust on consent in the proposed definition of "sexual assault," in connection with Mr. Galloway's case - was an opinion that any reasonably informed person who read her postings (including Elliott No. 3) could have formed. Accordingly, Ms. Elliott says, on the record and the law, Mr. Galloway cannot show that her defence of fair comment is not a valid defence. [591] Above, I have concluded that Mr. Galloway has met his burden to show grounds to believe his claim in respect of Elliott No. 3 has substantial merit, because Ms. Elliott's words are capable of bearing the pleaded meaning. However, I have concluded that a reasonable reader would understand Elliott No. 3, in the context in which it was published, to be comment on facts, and not a statement of facts. I agree with Ms. Elliott that a reasonable reader would understand her to be expressing her opinion on how Mr. Galloway's conduct (already described publicly) would be characterized, based on the definition of "sexual assault" in the UBC Sexual Assault Panel's report (which is described in Elliott No. 3). Her statement, in context, is recognizable as comment, and there is a properly disclosed (or notorious) factual foundation for her comment. Ms. Elliott's opinion is one that anyone could honestly express based

on those facts. Moreover, unlike some of the other Applicants, there is little in the record to provide grounds to believe that, in Ms. Elliott's case, a defence of fair comment would be defeated by malice. [592] I conclude, therefore, that, in respect of Elliott No. 3, Mr. Galloway has not met his burden to show grounds to believe that fair comment is not a valid defence. (h) Kirchmeier No. 1 - fair comment [593] The only defence raised by Ms. Kirchmeier is fair comment. [594] In my opinion, Kirchmeier No. 1, in context, would be understood by a reasonable reader as a statement of fact, namely, that Mr. Galloway (although he described his conduct as an affair) raped a student. As such, the only defence available is justification. [595] Mr. Galloway has, therefore, met his burden to show grounds to believe that, in respect of Kirchmeier No. 1, fair comment is not a valid defence. (i) Bachmann Nos. 1 and 2 - fair comment [596] The only defence raised by Ms. Bachmann is fair comment. [597] In my opinion, both Bachmann No. 1 and Bachmann No. 2, in context, would be understood by the reasonable reader as statements of fact (that A.B. was a "survivor of sexual assault" by Mr. Galloway, and that Mr. Galloway sexually assaulted a student, namely A.B.). They are not comment on facts. As such, the only defence is justification. [598] Mr. Galloway has, therefore, met his burden to show

that, in respect of both Bachmann No. 1 and Bachmann No. 2, there are grounds to believe that fair comment is not a valid defence. (j) Smalec No. 1 - fair comment [599] The only defence raised by Ms. Smalec is fair comment. [600] Ms. Smalec says that she has met all the criteria for a valid defence of fair comment, and Mr. Galloway cannot meet his burden to show a basis in the record that, on the record and the law, fair comment is not a valid defence. [601] Ms. Smalec says that the Smalec Article expressly indicated that: A.B. alleged Mr. Galloway had sexually assaulted her; A.B. had reported the alleged assault to her academic institution; there was a public dispute about the allegations; and A.B. published an art exhibit (that is, the Art Exhibit) relating to issues arising out of this alleged assault. Ms. Smalec says that, in addition, when the Smalec Article was published, A.B.'s allegations against Mr. Galloway were notorious as a result of widespread media reports (including Mr. Galloway's own National Post article) pre-dating the Article. Thus, Ms. Smalec says, the factual foundation underpinning the Smalec Article was both expressly set out in the Article (although without referring to Mr. Galloway by name) and was broadly known as a result of several years of public reporting, commentary, and social media debate. [602] Ms. Smalec says that any comment concerning the

truth of the allegations against Mr. Galloway contained within the Smalec Article is expressly identified as comment. While stating in the Smalec Article that she believes A.B., Ms. Smalec also "readily admits" that she does not know what happened. Ms. Smalec says that the Smalec Article is, on its face, editorial in nature and concerning a matter of public discourse, and it is clear, in context, that Ms. Smalec's belief in A.B. is her opinion. Ms. Smalec says that the belief is one that a person could honestly hold. [603] Ms. Smalec says further that there is nothing in the record that would support an inference of malice so as to defeat a defence of fair comment. She had never met Mr. Galloway and had no relationship with him. The Smalec Article is one of a number of publications Ms. Smalec authored concerning the sociopolitical implications of art, including publications which expressly addressed issues raised by #MeToo. Ms. Smalec says that she repeatedly made use of the words "reported" and "claims" when discussing the allegations against Mr. Galloway, and she did not mention Mr. Galloway by name at all. She says that her conduct is inconsistent with a deliberate attempt to damage Mr. Galloway's reputation or recklessness. [604] On the other hand, Mr. Galloway says that Ms. Smalec's defence of fair comment has been insufficiently pleaded, and that her response to civil

claim pleads no facts at all relevant to supporting the stings sued over. Mr. Galloway says that, where it has been determined that the publication is comment and not fact, the correct approach in considering whether a defence of fair comment is valid is to look first at whether the sting is made out, and, if so, that is the focus of the analysis. Then, the underlying facts (supporting the comment) must be pleaded and proven to be true. Where the facts are not stated in the publication in issue, they must be pleaded and proven to be notorious. Mr. Galloway says that none of that has been done in relation to Ms. Smalec's fair comment defence. [605] Moreover, Mr. Galloway says that the fair comment defence is inapplicable in any event, because statements (in Smalec No. 1) that he committed rape and sexual assault are statements of fact, not comment. [606] It would be fair to say that readers of a review of an art exhibit would expect to find the reviewer's opinions about the exhibit (and, perhaps, social or other issues that might be associated or connected with the exhibit) in the review. That is the context in which the review is likely to be read. A review of an art exhibit is not where one would expect to go for a plain recounting of facts. However, it does not follow that a review of an art exhibit cannot contain facts, or that everything contained in the review must

(because it is in an opinion-piece) be classified as opinion (or comment) and nothing can be characterized as fact. [607] The key question for purposes of Ms. Smalec's PPPA Application is whether the words in Smalec No. 1 are fact or comment. The Smalec Article clearly contains opinions. However, Mr. Galloway is not suing over the opinions stated by Ms. Smalec or many other things contained in the Article. Rather, he is suing over the words in Smalec No. 1, words that (in the context of the PPPA Application) are capable of meaning that Mr. Galloway raped and sexually assaulted A.B. and are defamatory. In that light, there are grounds to believe the words in Smalec No. 1 should be characterized as fact, and not comment, and fair comment is not available as a defence. [608] Accordingly, I conclude that Mr. Galloway has shown grounds to believe that Ms. Smalec's defence of fair comment is not a valid defence. (k) Anderson Nos. 1 and 2 - fair comment and responsible communication [609] I will first address Dr. Anderson's fair comment defence. [610] In my view, and like the Kirchmeier and Bachmann statements, Anderson No. 1 and Anderson No. 2 would be understood as statements of fact, not comment or expressions of opinions on facts. The defence of fair comment is, therefore, not a valid defence. [611] I turn then to the defence of responsible communication. [612] In my opinion, Mr.

Galloway has satisfied his burden to show grounds to believe that responsible communication is not a valid defence in respect of either Anderson No. 1 or Anderson No. 2. [613] The fundamental problem for Dr. Anderson is that, on the record before me, nothing at all was done to investigate the facts before the statements were published. Dr. Anderson had simply read A.B.'s account in the newspaper, and had no contact with A.B. There was no attempt to contact Mr. Galloway, or get his side of the story. I conclude, based on Dr. Anderson's evidence, that, as far as Dr. Anderson was concerned, investigation would have been a pointless exercise because Dr. Anderson essentially accepted A.B.'s account as the truth, and there was, therefore, no need for further inquiry. As I said above in relation to Ms. Gray's statements, uncritical acceptance of one version of events is the very opposite of the diligence required to support a defence of responsible communication. That defence has no realistic hope of success. (l) Rombough No. 1 - justification [614] In my opinion, Mr. Galloway has satisfied his burden to show grounds to believe Arielle Rombough's defence of justification is not a valid defence. [615] To succeed on this defence, Ms. Rombough would be required to prove the truth of the sting: that Mr. Galloway committed sexual assault. Ms. Rombough's belief that what was stated in the

post containing Rombough No. 1 was a statement of fact is irrelevant. An intention to mean "sexual harassment" by stating "sexual assault" is also irrelevant, since the test for meaning is an objective one. [616] On the record before me, justification is not a valid defence. (m) Kosman No. 1 - justification and fair comment; Kosman No. 2 - fair comment [617] Dr. Kosman says that Kosman No. 1 is a true statement. In support of her position, she relies on the finding in the Boyd Report that Mr. Galloway sexually harassed A.B. Dr. Kosman says that the word "violence" encompasses the sexual harassment that Mr. Galloway was found, as a result of the Boyd Investigation, to have committed. Dr. Kosman argues that violence is commonly understood to include sexual harassment. Dr. Kosman says that the finding of sexual harassment in the Boyd Report is powerful evidence that the defence of justification is a valid defence in respect of Kosman No. 1. [618] Mr. Galloway says that Dr. Kosman has not pleaded justification as a defence, and that, in any event, it is not a valid defence. In response to Dr. Kosman's reliance on the finding of sexual harassment in the Boyd Report, Mr. Galloway says that Dr. Kosman's reliance on this finding is misplaced. The Boyd Report provides some indication of the conclusions of one respected investigator based on the evidence before her. However, it is not

binding, and, before the court, it is hearsay. More importantly, Mr. Galloway repeats that he is not suing over statements that he sexually harassed A.B. (or anyone else). [619] As I have concluded above, Kosman No. 1 is capable of bearing the pleaded meaning. The "sting" over which Mr. Galloway sues is that he raped, sexually assaulted and physically assaulted A.B. - those were the violent acts he has been accused of perpetrating - and it is that sting that must be justified. The special meaning of "violence," on which Dr. Kosman relies to support her justification defence, is not supported by my conclusions regarding the meaning of the sting. In that light, I conclude that Mr. Galloway has shown grounds to believe that the defence of justification is not a valid defence in respect of Kosman No. 1. [620] I turn then to the defence of fair comment, in relation first to Kosman No. 1. [621] In my view, in context, the sting of Kosman No. 1 is that Mr. Galloway is a violent man. A reasonable reader would understand that as a statement of fact, not an expression of opinion on facts. A defence of fair comment is not available for statement of facts. [622] I draw the same conclusion with respect to Kosman No.

2. A reasonable reader would understand it as a statement of fact - that Mr. Galloway is a rapist - not a comment on facts. [623] The result is that Mr. Galloway has met his burden to show that, in respect of both Kosman No. 1 and Kosman No. 2, there are grounds to believe fair comment is not a valid defence. (n) Summary [624] In summary, of those claims where I concluded that Mr. Galloway met his burden to show grounds to believe the claims have substantial merit, I conclude that Mr. Galloway has failed to meet his burden to show grounds to believe there is no valid defence in respect of: ● A.B. No. 1 ● Maillard No. 1 ● Lyon Nos. 1 and 2 ● Rooney No. 1 ● Elliott No. 3 [625] However, I find that Mr. Galloway has met his burden, in the context of the PPPA Applications only, to show grounds to believe there is no valid defence in respect of: ● A.B. No. 2 ● Maillard No. 2 and No. 3 ● Rooney Nos. 2-7 ● Gray Nos. 1-3 and 6-7 ● Kirchmeier No. 1 ● Bachmann Nos. 1 and 2 ● Smalec No. 1 ● Anderson Nos. 1 and 2 ● Rombough No. 1 ● Kosman Nos. 1 and 2 [626] I will refer to these, collectively, as the "Remaining Expressions." 10. Has Mr. Galloway shown that the harm likely to have been suffered by him as a result of an Applicant's expression outweighs the public interest in protecting that expression? (a) Introduction [627] I turn finally to the weighing exercise under PPPA s. 4(2)(b), the

"crux of the analysis," as Côté J. observed. As I noted above, it requires weighing the public interest in allowing meritorious lawsuits to proceed against the public interest in protecting expression on matters of public interest. [628] For any of Mr. Galloway's claims to proceed, s. 4(2)(b) expressly requires that the public interest in allowing a claim to go forward outweighs the public interest in protecting the expression. [629] As Goepel J.A. observed in Hobbs, at para. 18, the inevitable result of the weighing process is that, on occasion, plaintiffs will be prevented from vindicating their rights through otherwise valid and legitimate lawsuits. Conversely, despite the deleterious effects on freedom of expression and public participation, defendants will occasionally have to defend against lawsuits claiming damages for expressions that relate to matters of public interest. [630] Goepel J.A. conveniently summarizes the steps in the process, in the context of a defamation claim, at paras. 19-23 of Hobbs: [19] As a prerequisite to the weighing exercise contemplated by s. 4(2)(b), the plaintiff must establish both the existence of harm and that the expression caused the harm: Pointes at para. 68; Bent at para. 142. [20] General damages are presumed in defamation actions, and this alone is sufficient to constitute harm: Pointes at para.

71. However, the magnitude of harm is important in assessing whether the harm is sufficiently serious such that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression: Pointes at para.

70. General damages in the nominal sense will ordinarily not be sufficient for this purpose: Bent at para. 144. [21] In Bent, the Court also noted that general damages are presumed in defamation actions. In addition, reputational harm is eminently relevant to the harm enquiry. Reputation is one of the most valuable assets a person can possess and is an attribute that must be protected by society's laws: Bent at para. 146. [22] Once harm has been established, the next question depends on whether that harm was suffered as a result of the defendant's expression. The plaintiff must show that they have a legitimate justification for bringing a lawsuit--namely, seeking to remedy legitimate harm--to alleviate the apprehension that they are using the litigation as the tool to quell expression and silence the defendant: Bent at para. 150. [23] Once the harm has been shown to be causally related to the expression, s. 4(2)(b) requires that the harm and corresponding public interest in permitting the proceeding to continue be weighed against the public interest in protecting the expression. At this stage of the process, public interest becomes critical to the analysis: Pointes at para. 73. [631] I will carry out the weighing exercise under PPPA s. 4(2)(b) only in respect of the Remaining Expressions, that is those expressions where I have concluded Mr. Galloway has shown grounds to believe

his claims have substantial merit and there is no valid defence. I decline to carry out the weighing exercise for those expressions where I have concluded Mr. Galloway has not met his burden under PPPA s. 4(2)(a). (b) Harm and the public interest in permitting Mr. Galloway to continue [632] Damages are presumed where a plaintiff has made out the essential elements of a defamation claim. The Remaining Expressions all concern allegations of criminal misconduct (rape, sexual assault and physical assault). Based on the legal principles that apply, A.B. (for example) cannot argue that, because others had asserted that Mr. Galloway was a rapist and guilty of sexual assault of her, the presumption of damages does not apply in respect of A.B. No.

2. It cannot be said that, by 2018, statements that Mr. Galloway was a rapist carried no sting and resulted in no harm. The opposite is true. [633] The Applicants cannot persuasively argue that, because all of them believe A.B.'s story, Mr. Galloway's reputation cannot be seriously harmed when a statement is published the natural and ordinary meaning of which would be that he is a rapist. This argument ignores the legal test that applies. As Goepel J.A. points out in Hobbs, at para. 84, where statements concern allegations of criminal conduct, the harm arises from the nature of the allegation, and there is no obligation on a plaintiff to prove actual loss. Each statement capable of meaning that Mr. Galloway is a rapist and guilty of sexual assault constitutes a fresh sting, for which damages are presumed. [634] In Bent, Côté J. noted that, in the context of a defamation action, "harm" is not limited to monetary harm. Reputational harm is "eminently relevant" to the harm inquiry under s. 4(2)(b), as "reputation is one of the most valuable assets a person . . . can possess": Bent, at para.

146. Côté J. continued: . . . This Court's jurisprudence has repeatedly emphasized the weighty importance that reputation ought to be given. Certainly, "[a] good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws": Hill, at para. 107; see also Botiuk, at paras. 91-92. [635] Further, and beyond harm to reputation, intangible and subjective elements (for example, humiliation, shame, disgrace and embarrassment, negative effects on mental-health and family relationships) also factor into the assessment of harm suffered by a plaintiff bringing a defamation claim. Both monetary and non-monetary harm can be relevant to demonstrating the existence of harm. See Bent, at paras. 148-149. [636] In his Affidavit No. 2 sworn June 18, 2019, Mr. Galloway says: 22. The impact of the false statements upon me was immediate. Although I was not provided with the specifics, and before there was any process to respond and investigate the complaints, I was suspended from my position and the matter made national news headlines.

23. Up to that point I had been the author of four published novels, which included awardwinning and best-selling novels. I had also written a fifth novel, which was the first of three I was contracted to write for publication by Random House Canada. Since the time A.B. made her allegations, and the matter became national news and the subject of an avalanche of social media postings that contract was cancelled. The publicity and social media postings, including those in this Claim, continue to this day. I have had no other novels published or any offers or contracts to write any novels.

24. In addition, since the allegations, national news and social media postings regarding sexual assault allegations occurred, I have not had a single offer for a speaking engagement or made a single dollar from a speaking engagement. Prior to that, I received invitations to speak, with speaker's fees ranging from $250 to $10,000, on almost a weekly basis over the previous decade.

25. My average income for writing and speaking over the previous five years was approximately $189,000 per year. The year after the defamations began it was a mere $15,000, and $12,000 the year after that. I shut down the company I used for such income after that.

26. After the Boyd investigation concluded the allegations of rape, sexual assault and assault were unsubstantiated, I hoped the allegations would stop and there might be some chance of rebuilding my reputation, career and life.

27. Instead, the defendants published numerous statements on the internet seeking to discredit Justice Boyd's investigation and/or repeating statements that I was a rapist and sexual assaulter. These included AB's "art show" described above, as well as the internet postings by Smalec and Kirchmeier referred to above as well as those by other defendants.

28. The result was that the damage to me continued and in some ways escalated in an apparent effort to keep the narrative that I raped AB alive. Following the internet publications by the defendants including those by AB, Smalec and Kirchmeier, I have received death threats and hate mail. I still receive zero speaking engagements and zero interest from any publishers. My agent has advised me there is no point in even pitching any novels given stain on my name.

29. I cannot even apply for jobs without fear that the prospective employer will Google my name and see the defamatory internet publications. [637] According to Mr. Galloway, he continues to suffer from the effects of the statements that are in issue in this action, and the continuing impact remains profound. In his Affidavit No. 5 sworn November 25, 2020, Mr. Galloway says: 16. I referred to the impact of the defamations on me in my Affidavit #2 filed June 27, 2019. The impact continues to this day, despite the passage of time. I have not had a single speaking offer. I am depressed and continue to be prescribed and take anti-depression medication. I am an author yet I can no longer write novels or even short stories, as I am crippled in my writing attempts by the fear of how a reading audience is likely to react amid the continued publicity of the terrible allegations against me. My income in 2019 consisted of some manual labour income, amounting to under $30,000 and I expect my 2020 income will not be significantly greater. [638] In my opinion, the evidence of harm - in the sense of the existence of harm and damage - offered by Mr. Galloway is sufficient for the PPPA Applications in relation to the Remaining Expressions. [639] What then of causation of the harm? The PPPA s. 4(2)(b) speaks of "the harm likely to have been or to be suffered . . . as a result of the applicant's

expression" (underlining added). [640] Mr. Galloway says that this case involves a libel of criminal conduct, widely published, and the nightmare that the defamatory statements have caused has been extreme. Mr. Galloway says that his reputation, career and future have been devastated. He explained that, from his perspective, the sum total of the damages he has suffered is inseparable from the parts. Mr. Galloway used the metaphor of "getting the salt out of the soup," to describe the causation of damage he has suffered, with the individual statements being the salt and all of the damage he has suffered being the soup. From his perspective, it is impossible to separate the salt from the soup, in the sense of that it is impossible to identify particular damage as being caused by a discrete expression. All of the expressions at issue are salt in the soup. [641] On cross-examination by Ms. Birenbaum, it was put to Mr. Galloway that A.B.'s statements were not the cause of his loss of a book contract or the loss of his job at UBC or speaking engagements. Mr. Galloway did not agree. He said: A A.B. is absolutely responsible for those harms. None of what you've just described would have happened if A.B. hadn't made a false report of sexual assault and encouraged dissemination of that report beyond a confidential reporting process. None of that would have happened. 355 Q Right. A I did

not accuse myself of rape falsely. 356 Q But the reporting process at least you've acknowledged is confidential? A I am not suing A.B. over her statement to Mary Ellen Boyd. I'm suing her over the falsity of her statements in general and her spreading of them beyond reporting to Boyd. If all A.B. had done was tell Keith Maillard and Keith Maillard had phoned the dean and the Boyd process had happened and Chelsea Rooney hadn't at A.B.'s direction gone through the Canadian literary world spreading the allegations, none of us would be sitting here today. . . . 359 Q Okay. Is it fair to say, Mr. Galloway, that being fired from UBC for an irreparable breach of trust and record of misconduct might be a reason why you're not invited to speaking engagements anymore? A No. 360 Q Okay. So you think that that's irrelevant to your speaking engagements? A Yeah. I don't think my status as a writer or a speaker was ever dependent on my employment at UBC. I also don't [sic] think if A.B. had not been publicizing the allegations the way they were, that that information ever would have been publically stated. As a matter of policy, UBC does not make statements like that. It was found to have violated my privacy. And the sole impulse for them doing that was to control reputational harm which was instigated by A.B. So she fired the bullet. Whoever else was involved in holding me still while the

bullet hit me, she fired the bullet. . . . 371 Q Just so I understand your A.B. shot the bullet analysis or just to confirm it. So what your evidence is is that because A.B. made her report and that was the firing of the bullet that triggered everything else, part of the harms in this lawsuit is your loss of being a professor? A Incorrect. 372 Q Okay. A I'm not disputing A.B.'s report to Mary Ellen Boyd. I'm saying because A.B. made a false report to Keith Maillard, lied to him and the rest of faculty in attempting to get them to believe this report and take actions to disseminate it and remove from me any confidentiality, any right to not have the allegations widely known and disseminated in advance of any finding of fact, that that is what destroyed my career. I am not contesting her right to report to Keith Maillard, for Keith Maillard to report to the dean, for the dean to contract Mary Ellen Boyd, for Boyd to issue a report -- conduct an investigation and issue a report. That would have all been fine. But that is not what happened. And what did not happen happened -- god, that's a terrible sentence. What ended up happening was all at the instigation of A.B., the instigation and direct will and desire of A.B. She wanted, as she said in the e-mail to Keith Maillard I have read, she wanted me ostracized, and I was. [642] Also on cross-examination, Mr. Galloway was asked about

whether he had his literary agent (whom Mr. Galloway had worked with for 20 years and who, according to Mr. Galloway, is one of the best agents in the world) approach publishers to see whether any would be interested in working with him. Mr. Galloway said: Are we operating in a different universe, where publishers are clamoring to publish people who have been accused of rape? [643] On behalf of Mr. Galloway, Mr. Burnett argues that reputations are not static, and they do have a chance at restoration. However, when events occurred (such as the UBC Accountable Letter, or reports concerning the arbitration awards, or when Mr. Galloway went public to tell his own story) that might have facilitated rehabilitation of Mr. Galloway's reputation, they were met with more postings on Twitter repeating that he was a rapist and guilty of sexual assault, and ensuring that damage to his reputation would continue. [644] Mr. Burnett, in response to arguments advanced by some of the Applicants that they did not publish as many times or to as large an audience as others or had a tiny following on Twitter, submits that a single publication painting someone as a rapist, posted for the entire world, is a grave matter. I agree. On the record, even Arielle Rombough, who has a small following on Twitter, has about 300 followers. For other Applicants, the numbers are much larger. [645] In Mr. Burnett's

submission, the attitude that a person should be able, with impunity, to fling an accusation that someone is a rapist and perpetrated sexual assaults needs to be set straight. In Mr. Burnett's submission, it treats Mr. Galloway as acceptable roadkill, and his reputation as expendable. Further, in Mr. Burnett's submission, it ignores the dynamic of a mob and the collective effect of many punches. In his submission, the law of defamation rejects such an attitude. [646] Mr. Galloway does not attempt to differentiate between the harm he says was caused to him as a result of (for example) Ms. Rooney's postings on Twitter in late 2016 and into 2017 (Rooney Nos. 2-7) and the harm he says was caused to him as a result of A.B.'s Art Exhibit and A.B. No.

2. He does not attempt to distinguish between the harm caused to him as a result of Rooney No. 2 versus the harm caused to him by Rooney No. 7, or Anderson No.

1. Mr. Galloway does not attempt to quantify the magnitude of the harm caused to him by (for example) Kosman No. 1 as compared with A.B. No. 2 or Kirchmeier No.

1. Rather, from Mr. Galloway's perspective, such an exercise would be analogous to attempting to separate the salt from the soup, and essentially an impossibility. [647] In my view, and in the context of the PPPA Applications, Mr. Galloway does not need to do more to satisfy his burden under PPPA s. 4(2)(b). On the record, the harm - monetary, professional and non-monetary - suffered by Mr. Galloway is serious and extensive. 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 reputational harm is inflicted with - that is, caused by - each statement and post. At this stage, Mr. Galloway is not required to prove harm or causation, but simply must provide evidence for the court to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link: Pointes, at para. 71; and Bent, at paras. 154 and 160. In my opinion, Mr. Galloway has done this. [648] The Applicants argue that, particularly in relation to later publications, Mr. Galloway is unable to show that any harm he says he has suffered is as a result of any of their expressions. The Applicants say Mr. Galloway is unable to do this because of the

widespread publicity in November 2015 when he was suspended from UBC, in June 2016 when UBC terminated his employment, and then again in the fall of 2016 when it became public that he had been accused of sexual assault. Indeed, the Applicants point to Mr. Galloway's affidavit evidence that his career as a novelist and professor abruptly ended when the defamatory statements began in November and December 2015, leading to national news stories, to support their position that Mr. Galloway cannot show he suffered any serious harm as a result of anything published later. The Applicants also point to the statement published by UBC when Mr. Galloway's employment was terminated, citing "a record of misconduct that resulted in irreparable breach of trust." The Applicants say that it was Mr. Galloway himself who, in November 2016, publicly disclosed that there had been complaints against him "of a sexual nature." The implication is that, if Mr. Galloway's reputation has suffered (and continues to suffer), none of the Applicants' expressions caused that harm, and Mr. Galloway has already been compensated for any reputational harm through the damage awards in the arbitration. [649] However, in my view, a fine analysis of Mr. Galloway's reputation and how it was affected by various events, would clearly require a "deep dive" into the evidence. The PPPA Applications are not the place for

that: Pointes, at para. 52. [650] Moreover, I agree with Mr. Burnett's submission that it takes no imagination to conclude that an allegation of sexual assault destroys a person's reputation, and does so with deep and long-lasting effect. The reputational harm to Mr. Galloway caused by other publicly-known information, such as the fact of his termination, or by publicly apologizing for (what he described as) an inappropriate relationship, is of considerably lower magnitude, as compared with the sting of claims of criminal misconduct, including sexual assault. When Mr. Galloway mentioned the sexual assault allegations, it was in the context of denying the claims. The later expressions, and especially the Art Exhibit and A.B. No. 2, maintained the currency of the propositions that Mr. Galloway was a rapist and guilty of sexual assault, and they continued to cause damage to him. Every time the claims were repeated, Mr. Galloway's reputation sustained another blow. [651] Hobbs is a case where there were several potential causes of harm. The application judge had concluded that the appellants' argument faltered on the issue of causation. Goepel J.A. noted, at paras. 86-87: [86] . . . In that regard, she emphasized that all of the alleged losses were said to arise as a result of the CF Action (and its resulting publicity), all of which occurred in the spring of 2019. In reaching that

conclusion, the judge overlooked that the evidence established that the appellants' defamation claim was perfected prior to the commencement of the CF Action. . . . [87] The defamation claim was perfected on publication of the Lennox Email. While the CF Action may have magnified the appellants' potential damages, their cause of action in defamation, for which damages are presumed, exists independently of the CF Action. [652] Goepel J.A. explained how the issue ought to have been approached, at para. 88: [88] Where there are multiple potential causes of the harm suffered, the court should take into account how the defendant contributed to that harm. In Bent, the majority considered that even if most of the harm flowed from republication of the initial statements, the causal link was not broken because republication had been reasonably foreseeable. Similarly, it may be that, in this case, the preponderance of the appellants' harm will be found at trial to have stemmed from the CF Action and the subsequent media reports. However, given that Mr. Warner encouraged the investigation and that republication was reasonably foreseeable, Mr. Warner's actions may be found to have contributed to the harm. In my respectful opinion, the judge erred in principle in finding, in the circumstances of this case, that no causal connection existed between the harm suffered by the appellants and Mr.

Warner's expressions. Whether a connection in fact exists is a matter for trial. [653] In my opinion, each Remaining Expression is presumed to cause harm, and Mr. Galloway is not required, at this stage, to quantify separate harm from each. Other negative, public information about Mr. Galloway does not erase the harm caused to him by each of these expressions. I am satisfied that, for the purposes of the PPPA Applications, Mr. Galloway has shown that the Remaining Expressions contributed to the harm suffered by him. [654] 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. I say "possible" because the ultimate outcome of litigation of Mr. Galloway's claims is unknown. An impartial court will decide. In my opinion, Mr. Galloway has a legitimate justification for bringing these claims, namely, to seek to remedy legitimate and serious harm, and that harm is not limited to monetary harm. [655] Accordingly, I conclude that there is a strong public interest in permitting Mr. Galloway's claims in respect of the Remaining Expressions to continue. In my view, the harm likely to have been suffered by Mr. Galloway from the Remaining Expressions lies close to the high end of

the spectrum, and so too does the public interest in allowing his claims in respect of those Expressions to proceed. (c) The public interest in protecting an Applicant's expression (i) Summary of the Applicants' arguments [656] I am going to begin by summarizing (and to some degree paraphrasing) arguments advanced by the Applicants to the effect that the public interest in encouraging reporting of sexual assault and protecting expressions that encourage such reporting must outweigh by far any public interest in allowing a person in Mr. Galloway's position - who asserts they have been falsely accused and falsely labelled as a criminal - to sue for defamation. Any other conclusion (it is argued) would strike an extremely serious and perhaps fatal blow to the reporting of sexual assault claims by victims, a consequence that is directly contrary to what the Supreme Court of Canada has said should be done. [657] For example, in her submissions on behalf of A.B., Ms. Birenbaum says that for A.B., and for survivors of sexual violence generally, the interest in freedom of expression is engaged to secure safety, support, dignity and equality. Ms. Birenbaum argues that Mr. Galloway's interest in reputational rehabilitation must give way to the greater societal interest in "ensuring justice for A.B. and survivors of gender based violence, and dismantling rather than entrenching immunity

for perpetrators." Ms. Birenbaum argues that the Supreme Court of Canada has repeatedly recognized that the crime of sexual assault remains under-reported, and that the justice system needs to do better and more to encourage the reporting of sexual assaults, citing (for example, and among other cases) R. v. Goldfinch, 2019 SCC 38, at paras. 36-37. In Ms. Birenbaum's submission, the message is that the courts (certainly in the context of these PPPA Applications) need to recognize the importance of A.B.'s expressions (and of those similar to her expressions) and do things differently. In Ms. Birenbaum's submission, survivors of sexual assault should not have to think or worry about whether they have the resources to withstand a civil suit for defamation before they report their claims to (for example) their employers, police, educational institutions, professional regulatory bodies and so on. [658] Ms. Birenbaum argues that, if Mr. Galloway is permitted to proceed with his claims, it will have far-reaching, reverberating effects that will extend well beyond B.C., particularly considering the notoriety of the claims. In her submission, giving greater weight to Mr. Galloway's interest in rehabilitating his reputation, as compared with protecting socially important expression in reporting sexual violence, "will set back any limited success of recent policy and legislative changes

devoted to encouraging reporting in a range of forums." In Ms. Birenbaum's submission, the importance of A.B.'s expressions should also be considered especially in the context of academia, "where sexual harassment and other forms of sexual violence are rife (like elsewhere in society), and where the very power dynamics to which AB was and is subjected to in this lawsuit deter reporting." [659] Ms. Birenbaum argues that here, Mr. Galloway "harnessed his power in the Canadian literary community," which, in turn, led to the UBC Accountable Letter. Ms. Birenbaum says that A.B., on the other hand, has been vilified and threatened. In Ms. Birenbaum's submission, the PPPA offers a small measure of protection, by "reassuring survivors that the additional risk of a retaliatory lawsuit by their abuser is low and is discouraged by the same and very system that encouraged them to report in the first place." Ms. Birenbaum argues that, on the other hand, if women are not protected from retaliatory lawsuits in cases of institutional reporting, there is no incentive to engage in that process, and survivors might as well simply "go public" with their claims and post them on the Internet, since the result (being sued) would be the same. [660] Ms. Birenbaum argues that allowing Mr. Galloway's lawsuit to proceed will inevitably have broader and collateral effects on other expressions on matters of

public interest, as shown by the many defendants Mr. Galloway has chosen to sue and the variety of expressions he has chosen to sue over. In Ms. Birenbaum's submission, Mr. Galloway's lawsuit, in effect, seeks permanently to shutter A.B., making it difficult or impossible for her to identify as a "survivor" in any capacity, and to engage in advocacy and activism on issues of sexual violence. [661] Ms. Birenbaum argues that Mr. Galloway's claims also perpetuate the "deeply held suspicion and myth" that women lie about sexual assault. She points out that, as a result of the release of the NCC, A.B. has already been threatened and vilified, making her fear for her public safety. In Ms. Birenbaum's submission, the lawsuit also provokes hostility toward persons who report sexual violence, the vast majority of whom are women. [662] In her Affidavit evidence, A.B. speaks about not only the effect of the litigation on her but also her experience concerning these events more broadly. For example, in her Affidavit No. 4 sworn January 4, 2021, A.B. says: 69. Were it not for the support and validation I received from Paul Krause, Ronna Syed, Mandi Gray, and Glynnis Kirchmeier, I don't know if I would be alive. In November 2015, Ms. Rooney was also an important source of support for me, but because of the investigation and now this litigation, we have had less contact. These legal proceedings have also severed my relationships with Professors Maillard and Lyon, who were also important sources of support in November 2015 and colleagues with whom I would otherwise have had more ongoing communications in the intervening 5 years.

70. I am being sued for reporting sexual violence to my educational institution and for speaking privately to persons I trusted, with the ongoing threat of more litigation. I did not make my allegations against the Plaintiff public. UBC first made my report public, and the Plaintiff has now kept it in the news, including publicly disclosing the details of my report in early June 2018.

71. I spoke to a limited number of people about the Plaintiff and UBC, because I had experienced trauma. War vets, cancer patients, and a myriad of other trauma survivors are encouraged to overcome shame, depression, isolation and stigma and speak about their experiences. Yet I am being sued for speaking in an effort to overcome my sense of shame and worthlessness, and to try to use my difficult experiences to contribute positively toward systemic change.

72. Each day is a struggle for me. I continue to have suicidal thoughts almost daily. Having to prepare this affidavit, and to be cross examined again, has been deeply stressful. In response, I purchased a rope to hang myself with on December 26, 2020. It is a fact. I had decided to hang myself, but caring texts/calls and reaching out from my long time legal counsel pulled me back from that brink. I am unable to heal and move on. I have been sued for creating art out of my experience in order to heal, to support other victims, and to contribute to the current discussions of sexual violence. I am isolated and silenced.

73. I have also been harmed by the Plaintiff deliberately naming me publicly in this action. I have received hate mail and threats as previously addressed by this court. . . .

74. As I said at the outset of this Affidavit, I had nothing to gain and everything to lose by reporting the Plaintiff's sexual violence to UBC. The Plaintiff and his supporters have portrayed me in the most vicious terms as a liar in the press; the most famous and powerful members of the CanLit community have come to the Plaintiff's defence in the "UBC Accountable" letter; and now those who supported the perspective of survivors in the public discussion that ensued have been sued by the Plaintiff. I have been isolated and silenced and remain in a constant state of fear, depression, hopelessness, lack of trust in ever being protected from my abuser, despair that the legal system creates an environment where abusers can continue their abuse, and almost complete depletion of internal resources to cope and survive. National journalists such as Christie Blatchford, repeatedly threatened to identify me publicly, before they in fact did so when the Plaintiff named me in this lawsuit and provided a copy of the claim to the press before even serving me. I do not go to writer's events or conferences. In fact, I have been unable to write at all since November 2015. My fear that my writing career would be over if I reported, has proved to be true. These are not the consequences that women should face for reporting sexual harassment and assault to their educational institutions.

75. My losses from the abuse and the legal processes which followed are too many to list. I lost my ability to read fiction (my escape, love and safety since I was a child). I have totally lost hope in forming another long-term stable loving relationship with a significant other. Massive amounts of energy and time get poured into reliving trauma in an adversarial, combative legal context that exacerbates trauma rather than pouring that energy into ways that I and other people can heal and move forward. I have nightmares. I am isolated. I am lonely. I can't make art without running it by legal counsel for fear of being sued again. I feel like I want to vomit when I am forced to read through, now hundreds of pages, of legal documents. Every time I engage with this legal material, I hit a point where I begin thinking of, then doing research and then forming concrete plans for the most effective way to end my life, which is why I settled on hanging as I wrote above. The Plaintiff targeted and started harassing me when I was 39. There is no end in sight.

76. Given what I have experienced to date, and the current ordeal of reliving the trauma and losses in this litigation for the past two years after I had made progress on moving on with my life in the summer of 2018, I don't know in good conscience that I would tell women who have been sexually assaulted to come forward. I feel that I would be doing other sexual assault victims actual violence if I encouraged them to come forward. [663] In Ms. Birenbaum's submission, at stake in A.B.'s PPPA Application (at the very least) is "the genuine commitment of the justice system to valuing the reporting of sexual violence and the ability of survivors to heal and process their trauma by speaking to those close to them and through other socially valuable expressive means, such as art." Also at stake, in Ms. Birenbaum's submission, is whether survivors will be deterred from reporting. In Ms. Birenbaum's submission, A.B.'s PPPA Application is an opportunity for the court to "try to set things right." In Ms. Birenbaum's submission, if A.B.'s expressions are subservient to Mr. Galloway's asserted reputational harms, "it will be difficult to provide a positive answer to any complainant who asks: Why report?" In Ms. Birenbaum's submission, the potential harm to Mr. Galloway "does not outweigh the public interest in protecting the right to report and heal from sexualized violence." [664] In her

submissions, Ms. Whitmore, counsel for Ms. Rooney says that there is a very strong public interest in protecting Ms. Rooney's expressions, which had as their purposes: encouraging the reporting of allegations of sexual harassment and sexual assault; supporting complainants' access to fair and effective sexual harassment and sexual assault investigations; facilitating the gathering of evidence and reporting of complaints during the Boyd Investigation; ensuring that the Boyd Investigation would consider relevant information and take A.B.'s complaints (and those of others) seriously; fostering support for witnesses and complainants during a sexual assault investigation; and supporting sexual assault complainants generally and A.B. specifically, especially when there were significant media reports calling into question the credibility of A.B.'s complaint. [665] Like Ms. Birenbaum, Ms. Whitmore says that, on numerous occasions, the Supreme Court of Canada has acknowledged the strong public interest in the reporting of sexual assault. In Ms. Whitmore's submission, permitting defamation claims in respect of expression that has as its core purpose the reporting, disclosure and facilitation of investigations of sexual assault claims chills important public interest expression. Ms. Whitmore argues that it is increasingly accepted that expressions such as Ms. Rooney's, calling for others

to support and believe sexual assault complainants, promotes sexual assault reporting and increased fairness in sexual assault investigations, as demonstrated by the #MeToo movement. Ms. Whitmore cites Statistics Canada information as confirmation that there were more police-reported sexual assaults in 2017 than any year since 1998, and the number peaked in October 2017, coinciding with the beginning of the #MeToo movement. [666] Ms. Whitmore argues that Ms. Rooney's conversations with potential complainants in November 2015 also furthered the public interest by facilitating the Boyd Investigation, at a time when UBC had no formal sexual assault policies. Ms. Whitmore submits that facilitating fair and safe investigations into claims of sexual assault, which consider all relevant information, serves the public interest. In Ms. Whitmore's submission (citing L'Heureux-Dubé J. in R. v. Seaboyer, [1991] 2 S.C.R. 577 and R. v. Osolin, [1993] 4 S.C.R. 595, and also Fitch J.A. in R. v. A.L., 2020 BCCA 18, at paras. 221-223), it also promotes increased reporting of sexual assault, as one of the most powerful disincentives to reporting sexual assault is complainants' fear of further victimization during the course of legal proceedings. [667] Ms. Whitmore argues further that Ms. Rooney's expressions, by facilitating the Boyd Investigation and responding on Twitter to Mr. Galloway and his

supporters, also facilitated the search for the truth. [668] Ms. Zimmer, counsel for Professor Maillard, likewise argues that there is a very strong public interest in facilitating the reporting of sexual harassment and sexual assault, and in ensuring that there is a safe process and environment for complainants to have their allegations heard and investigated. In Ms. Zimmer's submission, the need is even more compelling in the light of what Ms. Zimmer submitted were the "severe challenges" A.B. was facing in bringing her complaints against Mr. Galloway forward. In Ms. Zimmer's submission, there is also a very strong public interest in speaking up for complainants who have been met with "unrelenting attack." Ms. Zimmer argues that the deleterious effect on expression and public participation would be significant if Mr. Galloway's action were allowed to proceed. In Ms. Zimmer's submission, each of the expressions at issue with respect to Professor Maillard form part of a broader network that enhances the dignity, safety, privacy and equality of those coming forward with allegations, when presented with multiple overlapping barriers to formal reporting and with public criticism. In Ms. Zimmer's submission, the informal support networks have the ability to foster advocacy regarding responses to harassment and assault, and it is critical that individuals be able to access informal

support networks without fear of retaliation. In Ms. Zimmer's submission, the public interest in sustaining safe networks for survivors of sexual assault must outweigh the public interest in allowing Mr. Galloway to proceed with his claims. [669] On behalf of Ms. Gray, Mr. Dickson argues that the public interest in removing barriers to reporting sexual assault and protecting women and minorities from sexual violence outweighs by far any of the harms Mr. Galloway claims to have suffered from Ms. Gray's expressions. In Mr. Dickson's submission, if Mr. Galloway's claims were allowed to proceed, it would result in a dramatic curtailment of freedom of expression rights of sexual violence survivors and their supporters. Based on Ms. Gray's evidence, since the litigation was filed, her ability to participate actively in public discussions about sexual assault has been drastically curtailed. There is a public interest in being able to clear one's name. However, in Mr. Dickson's submission, that interest is clearly outweighed by the public interest in protecting expressions that speak to the deeply entrenched issues surrounding sexual assault and reporting. In Mr. Dickson's submission, on the facts here, the balance weighs heavily in favour of dismissal of Mr. Galloway's claims against Ms. Gray. In Mr. Dickson's submission, allowing Mr. Galloway's claims to go forward would constitute

an extraordinary restriction on Ms. Gray's fundamental freedom to express herself, would dramatically chill public dialogue on the important topic of sexual violence and would also contribute to the maintenance of deeply-rooted barriers to reporting sexual assault. In Mr. Dickson's submission, it would instead send a message that society expects victims of sexual assault, and those who believe them, to be silent. This, in Mr. Dickson's submission, is contrary to the Supreme Court of Canada recent urging on sexual violence in R. v. Barton, 2019 SCC 33, at para. 1. [670] Counsel for the other Applicants adopt those submissions or make similar submissions, or both. [671] More generally, counsel for the Applicants say that recognition of the importance of reporting and protecting against sexualized violence is long overdue. They say that a substantial step forward can be made by dismissing Mr. Galloway's claims against the Applicants, in favour of protecting the public interest in the expressions at issue, which are expressions reporting sexualized violence. (ii) Other factors: silencing critics, chill on future expression; Dr. Keller's expert report [672] In weighing the public interest in allowing a proceeding to continue, certain other factors may be relevant, including a history of attempts to silence critics, financial power imbalance, punitive purpose, and minimal damages

suffered. The potential chilling effect on future expression, the broader collateral effects on other matters of public interest, and the defendant's history of advocacy in the public interest may also be relevant: see Pointes, at paras. 79 and 80. [673] All of the Applicants have described how they have been affected by this litigation, and how they expect they will be affected if Mr. Galloway's claims against them are allowed to proceed. A number argue that they feel they have been silenced, and this litigation has had, and will have, a chilling effect on their expressions, particularly their use of Twitter. The implication of the Applicants' arguments is that they are unable to do anything meaningful - engage in advocacy, provide support for victims of sexual assault, further their academic careers, and so on - without being free to make statements that a reasonable person would understand to mean that Mr. Galloway is a rapist and guilty of sexual assault. I do not accept this, and, in my view, the record does not support it. [674] At this point, I will address the admissibility of the expert report of Dr. Keller. [675] Counsel for Ms. Gray and Dr. Kosman (supported by counsel for the other Applicants) seek to have Dr. Keller qualified as an expert on the ways in which women and girls use Twitter to engage in feminist public dialogues and activism, and on the ways in which

Twitter contributes to public discourse on issues involving violence against women. Dr. Keller's report is said to be relevant to the public interest weighing exercise and the potential chilling effect on future expression. It is also said to be relevant to the broader collateral effects on other matters of public interest, including issues surrounding allegations made by women and girls of sexual misconduct, and institutional responses to such allegations, particularly in the academic context. [676] Counsel for Ms. Gray and Dr. Kosman say further that Dr. Keller's report is also necessary in order to educate the court on the unique ways in which women and girls have used digital media technologies - and Twitter in particular - to engage in feminist dialogue and activism, and the public policy benefits of such engagement. [677] Mr. Burnett, on behalf of Mr. Galloway, says that, assuming that Dr. Keller were to be qualified as requested, her report goes far beyond those limits. Mr. Burnett says further that an examination of Dr. Keller's report in the light of those limits leads to the conclusion that the opinions offered by Dr. Keller are neither necessary nor helpful on the issues before me, and are not matters requiring an expert. In Mr. Burnett's submission, Dr. Keller's report should therefore not be admitted as expert opinion evidence. [678] Dr. Keller is an associate

professor in the Department of Communications, Media and Film at the University of Calgary. Dr. Keller holds a PhD in Media Studies from the University of Texas at Austin. According to Dr. Keller, for the past decade, she has researched the ways in which girls and women have used digital media technologies and platforms to engage in feminist dialogue and activism. Dr. Keller is co-author of Digital Feminist Activism: Girls and Women Fight Back against Rape Culture, published in 2019 by Oxford University Press. She is also the author of Girls' Feminist Blogging in a Postfeminist Age (Routledge, 2015), as well as numerous scholarly articles. [679] Dr. Keller was asked by counsel to address five general questions (with sub-questions) in her report, as follows: 1) Describe how conversations take place on Twitter between various users. In particular, please describe: a. How conversations are started; b. How Twitter users control who is able to see their posts; c. Different Twitter tools for participating in conversations, such as retweets and likes; d. The role of hashtags in Twitter conversations; e. The role of the "@" symbol in Twitter conversations; f. The role of live-tweeting; and g. What, if any, are the differences between Twitter and email conversations.

2) Describe how social media tools like Twitter have been used, if at all, in activism, public dialogue or debate regarding sexual violence against women and harassment, including through live-tweeting.

3) In your view, what, if any, is the public policy benefit of the dialogues identified in Question 2?

4) With respect to the term "rape culture", please: a. Define this term; and, b. Explain how, if at all, the term "rape culture" is discussed or addressed in the dialogues identified in Question 2.

5) Discuss the use and significance of the following hashtags from 2015 to 2018: ○ #UBCAccountable ○ #UBCunAccountable ○ #Galloway ○ #StevenGalloway [680] Dr. Keller describes the "purpose" of her opinion in a way that is somewhat different from how counsel seeks to qualify her. Dr. Keller says (Report, p. 3): The purpose of this report is to provide my expert opinion on how Twitter functions as a social media platform and how it contributes, if at all, to public discourse on issues involving violence against women. [681] Dr. Keller says that, in connection with her opinion, she was not provided with any materials to consider. That, from my perspective, illustrates one of the problems with Dr. Keller's report. Without meaning any disrespect to Dr. Keller, I would describe the report as written more in the form of an academic article on issues that (given Dr. Keller's background) are of interest to her, and that she was asked by counsel to address. The report lacks anchoring to the issues in this case on which expert evidence might have been relevant and necessary. [682] Although the body of the report (under the general heading "Opinion") contains headings and subheadings, they do not necessarily match up with the questions (or the order of the questions) Dr. Keller was asked to address. There are five main sections, starting with section A ("Twitter: Platform, Affordances, and Practices"). However, section B responds to question no. 4; section C responds to question no. 2; section D responds to question no. 5; and section E responds to question no.

3. If nothing else, this organizational feature makes the report less reader-friendly. [683] As a reader, I am left on my own to try to identify facts and assumptions forming the basis for the opinions Dr. Keller expresses. Everything is contained in the general section titled "Opinion," which begins on p. 3 of the report. It is not always clear when Dr. Keller is simply paraphrasing or summarizing views and opinions stated in other sources, and when she is setting out her own opinions. [684] In my view, there was no real attempt to have Dr. Keller's report comply with the requirements of Rule 11-6(1)(f) of the Supreme Court Civil Rules, which requires that an expert report must set out : (f) the expert's reasons for his or her opinion, including (i) a description of the factual assumptions on which the opinion is based, (ii) a description of any research conducted by the expert that led him or her to form the opinion, and (iii) a list of every document, if any, relied on by the expert in forming the opinion. [685] I do note that Dr. Keller's report includes a list of references, and, in that respect, the report might be said to comply with Rule 11-6(1)(f)(iii). However, the references include such sources as Time Magazine, Chatelaine, Flare and a post on CNN's website. [686] Counsel for Ms. Gray and Dr. Kosman argue that the lack of compliance with Rule 11-6(1) is immaterial.

They cite Cowichan Tribes v. Canada (Attorney General), 2019 BCSC 1986, in support of the general proposition that facts may be interwoven with opinion in an expert report, as Dr. Keller has done. However, in my opinion, this particular ruling by Young J. in Cowichan Tribes must be read in the unique circumstances of that particular case. Taking the argument advanced by counsel for Ms. Gray and Dr. Kosman to its logical conclusion, a party tendering an expert report could safely avoid the requirements of Rule 11-6(1)(f) simply by not providing any facts or assumptions to the proposed expert. That is not consistent with the requirements of the Rule or with other authorities interpreting it: see, for example, Griffioen v. Arnold, 2019 BCCA 83, at paras. 51-52. [687] The legal principles that apply to the admissibility of expert opinion evidence are well known. [688] The modern legal framework for the admissibility of expert opinion evidence was set out in R. v. Mohan, [1994] 2 S.C.R. 9, and clarified in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. This framework guards against the dangers of expert evidence. The trial judge acts as gatekeeper to ensure that expert evidence enhances, rather than distorts, the fact-finding process. [689] The expert evidence analysis is divided into two stages. First, the evidence must meet the four Mohan factors: (1)

relevance; (2) necessity; (3) absence of an exclusionary rule; and (4) special expertise. Second, the trial judge must weigh potential risks against the benefits of admitting the evidence: White Burgess, at para. 24. [690] If, at the first stage, the evidence does not meet the threshold Mohan requirements, it should not be admitted. The evidence must be logically relevant to a fact in issue: R. v. Abbey, 2009 ONCA 624, at para. 82; R. v. J.-L.J., 2000 SCC 51, at para.

47. It must be necessary "to enable the trier of fact to appreciate the matters in issue" by providing information outside of the experience and knowledge of the trier of fact: Mohan, at p. 23; R. v. D.D., 2000 SCC 43, at para.

57. To satisfy the necessity criterion, the evidence must be more than merely helpful. Opinion evidence that otherwise meets the Mohan requirements will be inadmissible if another exclusionary rule applies: Mohan, at p.

25. The opinion evidence must be given by a witness with special knowledge or expertise: Mohan, at p. 25. [691] At the second stage, the trial judge retains the discretion to exclude evidence that meets the threshold requirements for admissibility if the risks in admitting the evidence outweighs its benefits. Where the probative value of the expert opinion evidence is outweighed by its prejudicial effect, it should be excluded: Mohan, at p. 21; White Burgess, at paras. 19 and 24. [692] However, the expert opinion admissibility analysis cannot be "conducted in a vacuum": Abbey, at para.

62. Before applying the two-stage framework, the trial judge must determine the nature and scope of the proposed expert opinion. The boundaries of the proposed expert opinion must be carefully delineated to ensure that any harm to the trial or hearing process is minimized. [693] Dr. Keller is not being tendered as an expert in the operation of Twitter, nor was she sought to be so qualified. However, there is a lengthy description (beginning on p. 3 and continuing through to p. 11 of the report) in response to the first question Dr. Keller was asked to address. I agree with Mr. Burnett that Dr. Keller's response shows that she has no more "expertise" or understanding of Twitter than anyone else (including the Applicants) who uses it regularly and who may have read articles (including non-scholarly magazine articles) about it. Dr. Keller's response to the question about differences between e-mail and Twitter appears to be based on Twitter's marketing about its purpose. I do not believe that, without an expert, I am at risk (given the contents of the record) of drawing a wrong inference on this point. [694] I would not qualify Dr. Keller as an expert in the operation of Twitter (nor did counsel ask her to be so qualified). However, there would be nothing to prevent her (like any other witness) from giving relevant, non-expert, factual evidence. [695] In the context of the PPPA

Applications, I do not consider that Dr. Keller's report satisfies the necessity requirement in respect of the second question she was asked to address. I already have evidence in the record concerning these matters. Dr. Kosman, for example, has described for me what she was doing when she was "live-tweeting." I can see from the record the ways in which many of the Applicants (and indeed others) have used social media (including Twitter) to engage in public dialogue and debate. [696] Moreover, in my view, some of Dr. Keller's commentary spills over into advocacy. I note in particular the discussion on p. 14 of Dr. Keller's report (under the heading "Why Twitter"). I reject the proposition that courts, as a "traditional social institution," remain hostile to women's accounts of violence, compelling women to turn to Twitter. A lack of faith in the legal system does not inspire confidence in someone tendered to the court as an impartial expert, whose role is to assist the court. Moreover, the lawlessness of Twitter is not necessarily a friendly place. A.B. (and Mr. Galloway too) can attest to that. [697] With respect to the third question Dr. Keller was asked to address, counsel did not seek to have her qualified as an expert in public policy, nor have I been persuaded that she should be so qualified. Without meaning any disrespect to Dr. Keller, her discussion of matters in this

section of her report (especially conclusions about causal relationships) appears to me to be largely speculative. Dr. Keller repeats views expressed by others. The discussion does not appear to be the product of special expertise, in the absence of which the court is likely to come to a wrong conclusion or draw a wrong inference. In that sense, Dr. Keller's views are unnecessary. [698] With respect to the fourth question, concerning the term "rape culture," to the extent I might require a definition, the term is defined in the report prepared by the UBC Sexual Assault Panel, which is before me. Dr. Keller's discussion on this topic strikes me as more akin to advocacy and argument, than an opinion from an impartial expert. [699] Finally, with respect to the fifth question - the use and significance of the various hashtags - this also is a matter on which I am not persuaded I will reach the wrong conclusion without opinion evidence from Dr. Keller. Dr. Keller acknowledges (at p. 17 of her report) that her comments on the topic were not based on any research she conducted, but on "a cursory overview." I already have evidence in the record concerning how the various hashtags were in fact being used. Based on that evidence, I can draw my own conclusions. Dr. Keller's opinions, in my view, are unnecessary and prejudicial. [700] In summary, in my view and in the context of the PPPA

Applications, Dr. Keller's report fails to meet the necessity requirement on points where she would be qualified to give opinion evidence. Otherwise, the report contains opinions that are outside the scope of Dr. Keller's qualifications or are advocacy, or are opinions on matters where she has no special expertise. [701] Accordingly, I refuse to admit Dr. Keller's report into evidence as expert opinion evidence. (iii) Distinguishing between the subject matter of public interest and the actual expression [702] In Neufeld, Fenlon J.A. makes the point that, at this stage of the analysis, failing to distinguish between the subject matter of public interest, and the actual expression complained of, is a legal error. She wrote (at paras. 61-62; underlining in the original): [61] In my view, the judge failed to distinguish between the subject matter of public interest and the actual expression complained of. It must be remembered that the statutory provision requires weighing the public interest in protecting "that expression." This distinction is an important one. . . . [A]t the final stage of the analysis, where the protection of free expression is being weighed against permitting the action to continue, both the quality of the expression and the motivation behind it are relevant: Pointes SCC at para. 74. (The latter point underscores the judge's error in concluding that proof of

malice would not be relevant to the ultimate weighing exercise, but only to the defence of fair comment.) . . . [62] Mr. Neufeld did not complain about Mr. Hansman's statements concerning the need for inclusive and safe schools. Rather, Mr. Neufeld identified particular statements referring to him as bigoted, transphobic, anti-immigrant, racist, misogynistic, and hateful. The weighing exercise required the judge to consider the statements identified as containing the defamatory sting and to weigh whether those statements deserved protection. By focusing on the subject matter and the many non-defamatory components of the publications, the judge fell into error. [703] It is beyond argument that there is a very significant public interest in encouraging reporting of sexual assault. The public interest is recognized expressly in s. 276(3)(b) of the Criminal Code, for example, and in decisions of the Supreme Court of Canada, as counsel for the Applicants have pointed out. Unreported criminal acts cannot be prosecuted nor can perpetrators be punished. Denunciation of unlawful conduct (which sexual assault surely is) and deterrence of such conduct are important goals in the context of the criminal law, and important societal goals. Predatory misconduct (whether in the workplace, an educational institution or anywhere else) cannot be addressed, and victims of such conduct cannot be

protected, if victims feel they cannot come forward, or will be ignored, shamed or face retribution and reprisal if they do. These are compelling reasons to provide appropriate, compassionate and necessary support and encouragement for victims to report. The public interest in doing so is overwhelming. [704] The concerns raised by Ms. Birenbaum (and other counsel) in submissions, if valid, would weigh very heavily in favour of the public interest in protecting expressions reporting sexual assault. However, I do not accept what I view as essentially in terrorem arguments about how the Applicants' expressions in this case - and specifically the Remaining Expressions - must be weighed in the context of the PPPA Applications. The Remaining Expressions are not reports of sexual assault at all. Rather, they are statements that would be understood to mean that Mr. Galloway is a rapist and guilty of criminal acts. [705] The implication of the Applicants' submissions is essentially that any public statement, the natural and ordinary meaning of which would be understood to be that a sexual assault was perpetrated by one person against another (in this case, that Mr. Galloway raped A.B.), and regardless of the circumstances in which the statement was published, must be protected. There would be no legal consequences of any kind attached to publicly calling someone a rapist, completely

outside of any formal reporting, and no obligation ever to prove the statement was true. This, in effect, would place all statements concerning that type of claim into the category of absolute privilege. No distinction would be made between making a confidential report to an institution (almost certainly a privileged occasion), and publishing on Twitter to the world. There would be no recourse - certainly not in civil proceedings - for the person publicly so accused. It is difficult to see how something so extreme and potentially reckless would be in the public interest. [706] Nothing can be done if a victim will not make a formal report because the victim does not want to be asked questions (which may be very uncomfortable) about what happened, but requires unquestioned belief as a pre-condition to reporting. A.B. received that from Professor Maillard and Professor Lyon. Had Professor Lyon and Professor Maillard then gone with A.B. directly to the Dean, there would have been a very strong (verging on irrefutable) argument that the occasion was covered by qualified privilege. Indeed, Mr. Galloway implicitly accepts that to be so, because no complaint is made about the actual report to the Dean. However, in the context of what occurred at the November Meeting, Professor Maillard's and Professor Lyon's unquestioned belief in A.B. did not help her. [707] In November 2015, on the

record before me, there was a process in place at UBC for A.B. to make a formal report that she had been sexually assaulted, raped and physically assaulted by Mr. Galloway. A.B. instigated that process when she wrote to Dr. Piper on November 13, 2015. The process was far from perfect, and A.B. was very unhappy and frustrated with what it required of her. However, the extremely dismissive characterization in argument of Mr. Hyson's response to A.B. is, in my view, not justified. The attempt to use it as a valid excuse for the alternative route taken was self-serving. Rather than A.B. being faced with "severe challenges," Mr. Hyson responded quickly and sympathetically to her. Professor Maillard's and Professor Lyon's blind acceptance of A.B.'s views that Mr. Hyson was worse than useless in dealing with her claims is another aspect of their malice toward Mr. Galloway. Moreover, Policy 3 directed faculty (such as Professor Maillard and Professor Lyon) how to deal with such reports, namely, take them to the Dean of Arts for appropriate action in a confidential setting. A confidential setting (although not necessarily perfect) protected both the person making the report, and the person being reported. [708] Eventually A.B.'s complaint was reported to the Dean, who then instituted the Boyd Investigation. Mr. Galloway does not complain about A.B.'s letter to Dr. Piper or the actual

report to the Dean. However, it can hardly be said that the path Professor Maillard, Professor Lyon and A.B. took to arrive at the Boyd Investigation was preferable. Instead, it could be described as a disaster for everyone. Among other things, it placed A.B. in the position where she felt compelled to manufacture evidence to be presented at the November Meeting. This cannot be described as supporting a victim. [709] Ms. Birenbaum has argued that greater weight must be given to the greater societal interest in ensuring justice for A.B. and other survivors of gender-based violence, over reputational harm suffered by Mr. Galloway. However, Ms. Birenbaum had no suggestions concerning how "ensuring justice" for victims of sexual assault might happen if claims of sexual assault are never investigated. Rather, "ensuring justice" appears to mean unquestioned (and never questioned) belief in a claim. That is a far cry from how, in the context of the legal and adjudicative system, "justice" is commonly understood, and, in that light, the dilemma posed is a false one. [710] On the other hand, "ensuring justice" can happen if Mr. Galloway's claims go forward. Since there has been no indication that A.B. will initiate her own legal proceedings against Mr. Galloway, that appears to be the only route to "justice." The claims - including A.B.'s claims that she was raped and sexually assaulted

by Mr. Galloway, and Mr. Galloway's denials - will be adjudicated by an impartial court. Mr. Galloway's "power in the Canadian literary community," assuming it even exists, will be irrelevant. The risk, which is faced by both Mr. Galloway and A.B., is that the outcome is unknown. 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. [711] The submission that survivors of sexual assault should not have to think or worry about whether they have the resources to withstand a retaliatory civil suit by their abuser for defamation before reporting claims to an employer, educational institution, professional regulatory bodies or other entities, again poses a false dilemma: report and face ruinous and soul-destroying litigation, or suffer terribly alone in silence. It assumes that the inevitable outcome of a report of sexual assault to a professional regulatory body or an institution such as UBC (for example) would be that the person accused would launch a civil suit for defamation against the victim. [712] However, the record before me does not support that conclusion. There is a very high probability that such a report

(unlike what happened at the November Meeting) would be protected by qualified privilege. The risk of a retaliatory lawsuit when a report is made is discouraged by the system that encourages reporting. I reject the proposition that the possibility of a defamation claim over wide publication of a claim of sexual assault threatens in any meaningful way a report being made to proper authorities. Mr. Galloway is not suing over the report eventually made to Dean Averill that triggered the Boyd Investigation. Policy 3 expressly prohibited any retaliation, either directly or indirectly, against anyone who made a complaint in good faith. Dean Averill expressly reminded Mr. Galloway that he was to do nothing that could be construed as retaliation against possible student complainants. In an institutional setting such as UBC, victims who report are protected from retaliatory lawsuits, contrary to what has been asserted in argument. The fear of a retaliatory lawsuit was not why A.B. decided in the summer of 2013 not to proceed with her complaint, based on the record before me. For her, being sued was not a consideration all, and her concerns about possible retaliatory consequences lay elsewhere. [713] The predicted "far reaching reverberating effects," as well as the predicted setting back of any limited success of recent policy and legislative changes (for example, changes contemplated

by the Sexual Violence and Misconduct Policy Act), of allowing Mr. Galloway's claims to go forward are more examples of in terrorem arguments that, in my view, are not supported by the record. I draw the same conclusion with respect to the predicted "dramatic curtailment" of freedom of expression rights of sexual assault survivors and their supporters, and the assertion that allowing Mr. Galloway's claims to go forward sends a message that society (and, implicitly, the courts) expects victims of sexual assault and their supporters to be silent. These arguments focus on - and derive their power from - the subject matter of public interest. However, the focus must be on the actual expression complained of. Mr. Galloway's claims in that respect are narrow. [714] In response to the argument that Mr. Galloway's claims unacceptably perpetuate myths and stereotypes concerning claims of sexual assault, I do not accept that the mere act of defending against and denying a claim of sexual assault amounts to perpetuating those myths and stereotypes among reasonably thoughtful and informed people. A.B. is not alone in being threatened and vilified on social media. Mr. Galloway has also been a target. Regrettably, Twitter is a source of misery to many. [715] The proposition that facilitating fair and safe investigations into sexual assault claims, which consider all relevant information,

serves the public interest cannot reasonably be disputed. However, on the record before me, that is not what happened in the lead up to the Boyd Investigation. Rather, the alternative process (the November Meeting, Ms. Rooney's contacting others) was overwhelmed by rumours, gossip, fabrication of evidence, innuendo and malicious speech. This was hardly compatible with facilitating a fair and safe investigation. The persons A.B. was looking to in order to advance her claims against Mr. Galloway - Professor Maillard and Professor Lyon - did not help her. There is no logical connection between posting on Twitter "A is a rapist," and the facilitation of fair and safe investigations into claims by victims of A. Irresponsible posting on Twitter is not in the public interest, and more likely to impede - rather than facilitate - fair and safe investigations into claims, as well as perpetuating unacceptable myths and stereotypes. [716] In general, the submissions on behalf of the Applicants focussed on the subject matter of the expressions (the importance of which cannot seriously be doubted), but provided little analysis in respect of the actual expressions about which Mr. Galloway complains. As I noted above, many of the Remaining Expressions are not reports of sexual assault or sexual violence at all. Rather, and as I have discussed above in my consideration of whether Mr. Galloway's

claims have substantial merit, they would be understood by a reasonable person as factual statements asserting that Mr. Galloway is a rapist and guilty of criminal acts. These are the stings of the statements over which Mr. Galloway has chosen to sue. They are not broad, but narrow. [717] The importance of the general subject matter - that victims of sexual assault should be and must be encouraged to report, and be supported when they do - is beyond argument. However, it does not follow from the importance of the general subject matter that the public interest in protecting any particular expression of any of the Applicants outweighs the public interest in permitting Mr. Galloway to continue his claim or claims against that Applicant. [718] I turn then to consider the public interest in relation to the Remaining Expressions, and the weighing of the public interest. (iv) A.B. No. 2 [719] A.B. argues that the public interest in protecting the Art Exhibit, and specifically A.B. No. 2, weighs at the high end of the spectrum. Essentially, A.B. says that there is a strong public interest in encouraging a survivor of sexual assault to address the trauma of that experience through artistic expression. As part of the artistic expression and therapeutic process, A.B. transformed her Rape Narrative by using it to create the Art Exhibit, which contained A.B. No.

2. Thus, simply as a consequence (or as a by-product) of the artistic expression in the Art Exhibit, A.B. defamed Mr. Galloway. [720] I accept that, broadly speaking, there is a significant public interest in protecting expression the motivation of which is to allow the author of the expression to address traumatic personal experience, of which sexual assault is clearly an example. In that sense, A.B. No. 2 falls at or close to the high end of the protection-deserving spectrum. [721] However, there are other counter-balancing factors. [722] Implicit in A.B.'s position is that she would be unable to create, and unable to gain any therapeutic benefit from creating, without defaming Mr. Galloway through A.B. No.

2. I do not find this persuasive. All art involves making choices. A.B. chose the subject matter of the Art Exhibit, and she chose what to communicate in it and the artist's statement that accompanied it. In addition, the Art Exhibit was designed for public display: that was the point of it. Not only was the Art Exhibit (with A.B. No. 2) available for public viewing at the Gallery, but it was also available for viewing on both the Gallery's and A.B.'s website (where is remains so, with a website address that identified A.B. by name). The broad publication of the Art Exhibit's graphic content (only some of which Mr. Galloway is suing over) had great power to damage Mr. Galloway's reputation. It was a public demonstration of A.B.'s malice toward Mr. Galloway. On the record before me, A.B. understood that she was running a real risk of being sued. [723] A.B. No. 2 is not a report of sexual assault. That report had occurred in November 2015. The Rape Narrative itself was provided to Ms. Boyd in connection with the Boyd Investigation. Mr. Galloway does not - and cannot - complain about its contents in that context. However, the Art Exhibit is quite different. [724] I am not persuaded that allowing Mr. Galloway's claim in respect of A.B. No. 2 to go forward will deter reporting of sexual assaults. Moreover, and as I noted above, allowing Mr. Galloway's claim to go forward provides at

least the opportunity - and likely the only opportunity - for complete and public vindication for A.B. [725] I conclude, therefore, that, on balance, the public interest in protecting A.B. No. 2 falls somewhere between the middle and higher end of the protection-deserving spectrum. [726] A.B. also argues that, looking at Mr. Galloway's case as a whole, it has classic features of a SLAPP, namely (A.B. says) that the case was cast broadly, against 21 individuals, many of whom did nothing more than participate in a public discussion on-line. A.B. argues that the clear intention, and certainly effect, of this lawsuit is to silence. Other Applicants make similar arguments. [727] However, in my view, this takes the wrong approach in the context of defamation claims, where each publication creates a separate cause of action. In any event, I am not persuaded the record supports the conclusion that the case has the classic features of a SLAPP. Even if, for example, I were to conclude that, by suing, Mr. Galloway intended to silence the defendant Suziebedbug (who is not an Applicant), it would not follow necessarily or at all that this was his intention in relation to A.B. or any of the other Applicants. The Applicants in fact argue (citing Armstrong v. Corus Entertainment Inc., 2018 ONCA 689, at para. 78) that in addressing the public interest under s. 4(2)(b), the court must focus on the claims as advanced against each defendant separately. [728] In relation to A.B., and A.B. No. 2, I am satisfied (as I have set out above) that Mr. Galloway's claim has substantial merit and (on her PPPA Application) A.B. has no valid defence in play. I have also concluded that Mr. Galloway has met his burden to show there are grounds to believe he has suffered damage caused by A.B. No.

2. In those circumstances, I am unable to conclude that Mr. Galloway's intention in suing A.B. is to silence her. Rather, he is attempting to secure a remedy from the court for seemingly legitimate harm caused by defamatory expression. In my view, this is what is "really going on" in respect of Mr. Galloway's claim against A.B. (see Pointes, at para. 81). [729] As I have concluded above, 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. 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. Mr. Galloway's claim in respect of A.B. No. 2 should be allowed to proceed. [730] The result is that A.B.'s PPPA Application in respect of A.B. No. 2 is dismissed. (v) Maillard No. 2 and No. 3 [731] In my opinion, with respect to both Maillard No. 2 and Maillard No. 3, Professor Maillard continued to be motivated and actuated by malice toward Mr. Galloway. In November 2015, Professor Maillard uncritically accepted A.B.'s version of events, and he

condemned Mr. Galloway as guilty of crimes without ever speaking to or contacting him again. As Goepel J.A. observed in Hobbs, at para. 90, there is no public interest in protecting malicious speech. [732] I conclude that both Maillard No. 2 and Maillard No. 3 weigh at the lower end of the protection-deserving spectrum. Again, as I have concluded above, the harm likely to be or to have been suffered by Mr. Galloway as a result of Professor Maillard's expressions lies closer to the high end of the protection-deserving spectrum. [733] Accordingly, I conclude that the public interest in Mr. Galloway continuing the proceeding in respect of Maillard No. 2 and Maillard No. 3, outweighs the public interest in protecting those expressions. Mr. Galloway's claims in respect of those expressions should be allowed to proceed. [734] The result is that Professor Maillard's PPPA Application in respect of Maillard No. 2 and Maillard No. 3 is dismissed. (vi) Rooney Nos. 2-7 [735] In my view, and like Professor Maillard, Ms. Rooney continued in her expressions to be motivated and actuated by malice toward Mr. Galloway. Her malice respecting Mr. Galloway extended to her rejection of the conclusions reached in the Boyd Report. Her expressions were not about truth-seeking, or promoting truth-seeking. Rather, Ms. Rooney's motivations were about confirming and vindicating her own very bad opinions

about Mr. Galloway, and her deep dissatisfaction with the Boyd Investigation and with the conclusions in the Boyd Report. [736] I conclude, therefore, that the weight to be given to each of Rooney Nos. 2-7 is at the lower end of the protection-deserving spectrum. [737] Again, as I have concluded above, the harm likely to be or to have been suffered by Mr. Galloway as a result of Ms. Rooney's expressions lies closer to the high end of the protection-deserving spectrum. [738] Accordingly, I conclude that the public interest in Mr. Galloway continuing the proceeding in respect of Rooney Nos. 2-7, outweighs the public interest in protecting those expressions. Mr. Galloway's claims in respect of those expressions should be allowed to proceed. [739] The result is that Ms. Rooney's PPPA Application in respect of Rooney Nos. 2-7 is dismissed. (vii) Gray Nos. 1-3 and Nos. 6-7 [740] I will address Gray Nos. 1-3 together. [741] In my opinion, Ms. Gray made a deliberate attack on Mr. Galloway, labelling him as someone guilty of criminal acts. Her conduct was reckless and malicious. Her object in posting her statements on Twitter was for a broad audience to see them. There is, in my view, little public interest in protecting reckless and malicious accusations of criminal conduct, especially where published on a social media platform such as Twitter. Rather than promoting responsible

reporting of sexual assault and supporting victims, such reckless expressions risk perpetuating myths and stereotypes, a result that is strongly contrary to the public interest. These expressions weigh at the lower end of the protection-deserving scale. [742] I would not describe Gray Nos. 6 and 7 as published with the same recklessness as were Gray Nos. 1-3. The content was more measured and less inflammatory. In my view, these expressions fall more in the medium end of the protection-deserving scale. [743] In addition, Ms. Gray has a significant history of advocacy, and a strong academic and personal interest in campus sexual violence. Her PhD dissertation is connected with many of the issues in this case and in the PPPA Applications. [744] However, despite Ms. Gray's activism, Mr. Galloway's claims against her are few and narrow. I am not persuaded that Ms. Gray is unable to carry on her academic and other work unless she is able, without consequence, to make statements such as Gray No. 1 about Mr. Galloway. This, in my view, is another false dilemma. [745] I repeat that I have concluded the harm likely to be or to have been suffered by Mr. Galloway as a result of Ms. Gray's expressions lies at the higher end of the protection-deserving spectrum. I conclude, therefore, that the public interest in Mr. Galloway continuing the proceeding in respect of Gray Nos. 1-3 and Gray

Nos. 6-7 outweighs the public interest in protecting those expressions. [746] The result is that Ms. Gray's PPPA Application in respect of Gray Nos. 1-3 and Gray Nos. 6-7 is dismissed. (viii) Kirchmeier No. 1 [747] In my opinion, in Kirchmeier No. 1, Ms. Kirchmeier made a careless personal attack on Mr. Galloway, labelling him a rapist. Her very strong inclination to believe persons who assert they have been sexually assaulted, and her equally strong inclination to disbelieve those who are accused of sexually assault are not the problem. Rather, the problem is Ms. Kirchmeier's publication on Twitter of what a reasonable person would understand as a statement of fact: Mr. Galloway did not have an affair, but committed rape. Her conduct was, in my view, reckless. I am unable to conclude that such conduct enhances in any meaningful way the public interest in encouraging victims of sexual assault to report those assaults, or that the expression supports victims of sexual assault, and therefore is deserving of protection in the public interest. [748] I am also not persuaded that allowing Mr. Galloway's defamation claim to proceed in respect of Kirchmeier No. 1 will deter others from speaking out in favour of reporting sexual assault or to support victims of criminal conduct. There is very little public interest in protecting reckless accusations of criminal conduct, and it is

difficult to see how doing so could either encourage reporting or support victims of such conduct. On the other hand, in my opinion, allowing Mr. Galloway's claim to proceed in respect of Kirchmeier No. 1 will deter others from making reckless claims against an individual, and will provide an incentive to tailor their expressions to avoid needlessly defaming an individual. [749] In my view, Ms. Kirchmeier's unnecessary and reckless labelling of Mr. Galloway as a rapist, in a Twitter post, is at the lower end of the protection-deserving spectrum. [750] However, as I noted above, the weighing process can call for consideration of the "chilling" effect on future expressions and other collateral effects. As I have also described above, Ms. Kirchmeier has a significant personal history speaking out and advocating on behalf of sexual assault victims and concerning reporting processes, particularly in the university setting. Ms. Kirchmeier says that Mr. Galloway's claims against her have had a serious chilling effect. Ms. Kirchmeier says that her ability to participate in public debates on issues around sexual assault has been "profoundly stymied," and (among other things) her use of Twitter has substantially declined. Ms. Kirchmeier says that, out of fear that anything she said would be added to this lawsuit, she "locked" her Twitter account, which means only "followers" can see her

posts. Ms. Kirchmeier explained that, as a result, her posts on Twitter are only visible to the roughly 1,000 people who choose to follow her. Ms. Kirchmeier says that this lack of posting on Twitter lowers her profile and prevents others who may be interested in speaking to her from finding her. [751] Ms. Kirchmeier says that, in the past year she has been contacted by only one journalist and no victims of sexual violence, and this is a major decline as compared to the period preceding the litigation. Ms. Kirchmeier says that, while she is aware in general of some current events at UBC around sexual misconduct reform, she has been unable to cultivate sources, build relationships (including with current elected student leaders), or influence the process of revising the sexual misconduct policy as she did before Mr. Galloway filed this action. Ms. Kirchmeier says that this also represents a major diminishment in her activity as compared to the period preceding the litigation. [752] I accept that Ms. Kirchmeier feels that some of her own speech and advocacy work has been stifled as a result of being named as a defendant in this case. However, in my view, it is important to keep in mind that Ms. Kirchmeier has been sued by Mr. Galloway for a single statement, labelling him a rapist, and there is nothing in the record that persuades me that Mr. Galloway's object in suing Ms.

Kirchmeier was to silence her generally. Mr. Galloway does not complain about either anything else Ms. Kirchmeier has published of and concerning him or on topics in her capacity as an advocate for sexual assault victims and reform of reporting processes. In view of Ms. Kirchmeier's history of activism, I am unable to conclude that she cannot to find a way to support victims and participate meaningfully in sexual misconduct reform without calling Mr. Galloway a rapist. [753] Based on my conclusions above concerning where the harm to Mr. Galloway lies on the protection-deserving spectrum, I conclude that the public interest in allowing Mr. Galloway's claim in respect of Kirchmeier No. 1 to go forward outweighs the public interest in protecting that expression. [754] The result is that Ms. Kirchmeier's PPPA Application is dismissed. (ix) Bachmann Nos. 1 and 2 [755] In my opinion, and like Ms. Kirchmeier, in both Bachmann No. 1 and Bachmann No. 2, Ms. Bachman made careless personal attacks on Mr. Galloway, condemning him as guilty of sexual assault. Her expressions are therefore at the lower end of the protection-deserving spectrum. [756] However, Ms. Bachmann says that, in weighing the public interest, I should take into account other factors, such as her writing on sexual violence in the Vancouver arts community and her advocacy in relation to holding abusers accountable. Ms.

Bachmann says that I should also take into account her personal experience as a victim of an unreported sexual assault involving an imbalanced power dynamic. Ms. Bachmann says that she was motivated by a desire to engage with the public discourse regarding #ubcaccountable and societal responses to accusations of sexual violence more broadly, and Ms. Bachmann argues that her right to publish Bachmann Nos. 1 and 2 should be supported and protected. Ms. Bachmann says that, as a result of this action, she no longer writes or engages in the topics she previously wrote about, specifically sexual violence in the arts community and holding abusers accountable, out of fear of attracting internet harassment or additional litigation. Ms. Bachmann says that she is now cautious about engaging online, and no longer uses social media to comment on matters of public interest or to promote her own writing and artwork. Ms. Bachmann says that her name is recognized in relation to this litigation, and, as a result, she is now wary of meeting new people and attending events such as readings, book launches and art openings. Ms. Bachmann says that, since being named in these proceedings, Ms. Bachmann is hesitant to attach her name to projects. [757] Ms. Bachmann says further that Mr. Galloway's claims against her have all the indicia of a SLAPP suit. [758] I will address the last point first. I do

not agree. In my view, Mr. Galloway's intention is not to silence Ms. Bachmann, but to obtain a remedy for the legitimate harm that (in the context of her PPPA Application) I have found has been caused to Mr. Galloway by Ms. Bachmann's expressions. [759] I turn then to what Ms. Bachmann says about her own speech and activities (including advocacy) being stifled as a result of Mr. Galloway's claims against her. I draw the same conclusions in that respect as I did in relation to Ms. Kirchmeier. I am not persuaded that, if Ms. Bachmann has felt the need to be more cautious before making reckless statements on Twitter (or elsewhere), that is contrary to the public interest. Nor am I persuaded it provides a reason why greater weight should be given to protecting Bachmann Nos. 1 and 2, as compared with the public interest in allowing Mr. Galloway's claims to go forward. [760] I conclude, therefore, that the public interest in allowing Mr. Galloway's claims in respect of Bachmann Nos. 1 and 2 to go forward outweighs the public interest in protecting those expressions. [761] The result is that Ms. Bachmann's PPPA Application is dismissed. (x) Smalec No. 1 [762] The weighing exercise here is not about Ms. Smalec's ability to publish a review of the Art Exhibit, or about the broad content of the Smalec Article. Rather, the focus must be on the expressions in the Smalec Article that Mr. Galloway sues over, that is, Smalec No.

1. In that light, to the extent Ms. Smalec's submissions concerning the public interest concentrate on the Smalec Article (rather than Smalec No. 1), they are beside the point. Mr. Galloway does not complain that he was defamed by the Smalec Article, and there is much, much more in the Smalec Article besides Smalec No. 1. [763] I am not persuaded that Ms. Smalec could not have written the Smalec Article without defaming Mr. Galloway. On the record before me (especially Ms. Smalec's Twitter exchange in late July 2018, and her e-mail communications with A.B.), I conclude that the inclusion of Smalec No. 1 was deliberate. Ideologically, she was aligned with A.B. and A.B.'s supporters, and hostile to Mr. Galloway. As a result, I conclude that the public interest in protecting Smalec No. 1 is at the lower end of the protection-deserving spectrum. [764] However, and like other Applicants, Ms. Smalec says that other factors should be taken into account in the weighing exercise. For example, Ms. Smalec says that this lawsuit has had a "profound chilling effect" on her. Ms. Smalec says that prior to the lawsuit, she would post frequently on social media about the #MeToo movement. However, Ms. Smalec says that, since the lawsuit, she has curtailed her writing on the topic out of fear that her writing in that context may be tied to this case. She says that, previously, she wrote about

sociopolitical issues and art. However, Ms. Smalec says that she no longer mentions issues of sexual assault or sexual harassment on social media generally, and has declined an opportunity to review a book relating to the impact of the #MeToo movement on Canadian literature. Ms. Smalec says these topics were ones where she frequently contributed to public and academic discussion prior to the lawsuit. [765] Ms. Smalec says further that Mr. Galloway has used this litigation as a "cudgel" to silence her (and others like her) who might express viewpoints and opinions contrary to his own. Ms. Smalec questions why Mr. Galloway should be able to participate in what Ms. Smalec describes as a "a broad debate about issues of cancel culture, rape culture, power imbalance, consent, social media, Canadian literature and academic investigation" in the form of articles such as his lengthy article in the National Post, while she is inhibited from doing so. [766] However, on the record before me, I am not persuaded that Ms. Smalec's actions display the "chill" she describes. For example, after this action was filed, Ms. Smalec posted on Twitter a link to the Smalec Article and said "I stand by every word of it." Her post included the hashtag #ubcaccountable. In her evidence, Ms. Smalec said that she was not going to be intimidated by Mr. Galloway "or his friends" from speaking about these

issues, and that she had every right to use #ubcaccountable to do so. Moreover, I am not persuaded that Ms. Smalec cannot participate in the debate unless she is free to defame Mr. Galloway. If Ms. Smalec feels the need to be more measured and thoughtful in her expression, particularly on a medium such as Twitter, I consider that to be in the public interest. [767] Again, in my view, and in relation to Smalec No. 1, Mr. Galloway's intention is not to silence Ms. Smalec, but to obtain a remedy for legitimate harm that (in the context of her PPPA Application) I have found has been caused to Mr. Galloway by the expression. [768] Accordingly, I conclude that the public interest in allowing Mr. Galloway's claim in respect of Smalec No. 1 to go forward outweighs the public interest in protecting that expression. [769] The result is that Ms. Smalec's PPPA Application is dismissed. (xi) Anderson Nos. 1 and 2 [770] In my opinion, and like Ms. Bachmann and Ms. Kirchmeier, in both Anderson No. 1 and Anderson No. 2, Dr. Anderson made a careless personal attack on Mr. Galloway. Dr. Anderson's expressions are at the lower end of the protection-deserving spectrum. [771] Like other Applicants, Dr. Anderson speaks about the "chilling" effect on other expression (including writing and advocacy). Dr. Anderson also mentions experiencing a high level of stress associated with the litigation. [772]

However, I am not persuaded that, if Dr. Anderson has felt the need to be more cautious before making reckless statements on Twitter (or elsewhere), this is contrary to the public interest. I note that the panel Dr. Anderson organized in October 2018 has not resulted in any claims by Mr. Galloway. I am also not persuaded that feeling the need to be more cautious provides a reason why greater weight should be given to protecting Dr. Anderson's expressions, as compared with the public interest in allowing Mr. Galloway's claims in respect of them to go forward. [773] Accordingly, I conclude that the public interest in allowing Mr. Galloway's claims in respect of Anderson Nos. 1 and 2 to go forward outweighs the public interest in protecting those expressions. [774] The result is that Dr. Anderson's PPPA Application is dismissed. (xii) Rombough No. 1 [775] Ms. Rombough argues that the public interest in protecting Rombough No. 1 is extremely high. Ms. Rombough says that Rombough No. 1 was intended to provide an under-represented perspective - that of a survivor - on the nature and impact of the public dialogue surrounding high-profile allegations of sexual assault. Ms. Rombough says that the intention was to ask Margaret Atwood, someone with a large and influential platform, to amplify the voices of survivors. Ms. Rombough says the request was rooted in a concern that comments such

as those of Ms. Atwood would unnecessarily hurt and dissuade other survivors from participating in public discussion about sexual assault and also prevent survivors from coming forward to report on their own experience and seek help. Ms. Rombough says that the intention was to ensure that the voices and viewpoints of survivors "are included in a broader dialogue that, in turn shapes political decision-making." In addition, Ms. Rombough says that Rombough No. 1 was "also animated by, and connected to, the values of truth-telling and human flourishing amongst a historically marginalized population." [776] Ms. Rombough says further that Rombough No. 1 "was a thoughtful continuation of the important advocacy work that Rombough has been engaged in for several years." [777] However, in my view, none of this required Ms. Rombough to defame Mr. Galloway, as was done in Rombough No.

1. In the weighing of the public interest in protecting Rombough No. 1, I need to consider that Ms. Rombough made a very serious personal attack on Mr. Galloway (accusing him of criminal conduct), when Ms. Rombough knew nothing about the facts except what might have been gathered from media reports (which may or may not have been reliable). Ms. Rombough had no basis to say that Mr. Galloway was "fired for sexual assault," based on the media reports of the conclusions in the Boyd Report concerning A.B.'s claims of sexual assault. Ms. Rombough's conduct in posting Rombough No. 1 was not thoughtful but reckless, in my view. [778] So, although Ms. Rombough's motivation (as described) in posting Rombough No. 1 may have been laudable, the content clearly was not. In my view, while Ms. Rombough's intention to provide the perspective of a survivor of sexual assault is deserving of protection, the public interest in protecting the actual expression found in Rombough No. 1 is at the lower end of the protection-deserving spectrum. [779] I conclude, therefore, that the public interest in allowing Mr. Galloway's claim in respect of Rombough No. 1 to go forward outweighs the public interest in protecting that expression. [780] The result is that Ms. Rombough's PPPA Application is dismissed. (xiii) Kosman Nos. 1 and 2 [781] In my opinion, in both Kosman No. 1 and Kosman No. 2, Dr. Kosman made

careless personal attacks on Mr. Galloway. Dr. Kosman's expressions are at the lower end of the protection-deserving spectrum. [782] However, and like other Applicants, Dr. Kosman says that, in weighing the public interest in relation to Mr. Galloway's claims against her, other factors are also relevant. Dr. Kosman points to her genuine interest and history of activism on issues around sexual misconduct, her use of Twitter as an important forum for public dialogues of this type, the chilling effect she has experienced due to the litigation and the importance of her expressions in the context of academic freedom. Dr. Kosman says that her motivation behind Kosman Nos. 1 and 2 arose from Dr. Kosman's "ongoing interest in troubling matters of public importance, and her desire to contribute to ongoing conversations on such issues, particularly from her unique perspective as a student speaking to abuses of power in academic contexts." Dr. Kosman says further that the quality of her expressions falls at the heart of the core values underlying freedom of expression, and that her comments were intended to contribute to public awareness and public discourse on important issues. [783] Dr. Kosman says that Twitter has historically been an important tool for her, both for her own self-expression and for the purposes of her professional development. Dr. Kosman says that, since she has been

sued, she has almost entirely stopped using Twitter, and says that she has effectively been intimidated and silenced. According to Dr. Kosman, as compared with the period prior to Mr. Galloway's action being filed, her Twitter use after being sued has dwindled from over 17,000 posts to almost nothing (less than 300). Dr. Kosman says that she has almost entirely stopped using Twitter to engage in discussions around cultural issues, ideas and problems which she considers to be of public importance. Dr. Kosman also describes feeling unable to discuss such issues on Twitter - particularly to speak out on issues such as societal responses to sexual violence - for fear of being sued. Moreover, Dr. Kosman says that being unable to use Twitter to engage on matters of public commentary and scholarship are likely to have detrimental consequences for her professionally, and poses a risk to her academic freedom. [784] However, when I consider "what is really going on" in respect of Mr. Galloway's claims against Dr. Kosman, I am not persuaded that Mr. Galloway's goal is to vindictively or strategically silence Dr. Kosman, so as to prevent her from speaking or writing about important subjects in which she has a long-held interest, or to damage her ability to progress in her academic career. Rather, the goal is to encourage Dr. Kosman (and others, including other Applicants) who speak on such subjects - perhaps especially on platforms such as Twitter - to tailor their expressions so as to avoid needlessly defaming an individual in Mr. Galloway's position. Defamatory statements cannot lead to healthy participation in public affairs: Hill, at para.

106. I do not accept that, unless Dr. Kosman is permitted to publicly label Mr. Galloway as violent, a rapist and criminal, she is unable to carry on her work. This, again, is a false dilemma. There is no public interest in promoting the careless or reckless use of Twitter. Rather, in my view, the public interest lies in promoting the opposite. [785] Accordingly, I conclude that the public interest in allowing Mr. Galloway's claims in respect of Kosman No. 1 and Kosman No. 2 to go forward outweighs the public interest in protecting those expressions. [786] The result is that Dr. Kosman's PPPA Application is dismissed. (d) Summary on weighing of the public interest [787] In summary, with respect to each of the Remaining Expressions, I am satisfied that Mr. Galloway has shown that the harm likely to be or have been suffered by him as a result of the Remaining Expressions is sufficiently serious that the public interest in permitting his defamation claims to continue outweighs the public interest in protecting those Expressions.

11. Summary and disposition [788] In summary, I make the following orders in relation to the PPPA Applications: (a) A.B.'s application is granted with respect to A.B. No. 1, and dismissed with respect to A.B. No. 2; (b) Professor Maillard's application is granted with respect to Maillard No. 1 and Maillard No. 4, and dismissed with respect to Maillard No. 2 and Maillard No. 3; (c) Professor Lyon's application is granted, and the proceeding is dismissed as against her; (d) Chelsea Rooney's application is granted with respect to Rooney No. 1, and dismissed with respect to Rooney Nos. 2-7; (e) Mandi Gray's application is granted with respect to Gray No. 4 and Gray No. 5, and dismissed with respect to Gray Nos. 1-3 and Gray Nos. 6-7; (f) Alicia Elliott's application is granted, and the proceeding is dismissed as against her; (g) Glynnis Kirchmeier's application is dismissed; (h) Brit Bachmann's application is dismissed; (i) Theresa Smalec's application is dismissed; (j) Dr. Anderson's application is dismissed; (k) Arielle Rombough's application is dismissed; and (l) Dr. Kosman's application is dismissed. [789] If counsel wish to make submissions concerning costs, they should take steps, within 45 days of the date of the Reasons, to schedule a hearing date convenient to counsel and to the court. [790] I repeat that, where I have determined that Mr. Galloway's claims should be

allowed to go forward to a trial on the merits, the outcome of the PPPA Applications is not a final adjudication of the merits of the claims or defences. Rather, 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: Bent, at paras. 4 and 176. [791] 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 that context, and among other things, judicial powers of inquiry (including pre-trial oral and documentary discovery) are much broader, witnesses will give oral evidence before the trial judge, and ultimate assessments of credibility can be made. Mr. Galloway may succeed in persuading a trial judge that, in respect of a particular claim, he is entitled to a remedy (which could be significant or miniscule), or his claim may be dismissed on the merits. Mr. Galloway may be successful against one defendant, but fail as against another or all of the others. The ultimate outcome will be up to the trial judge. [792]

Finally, I wish to acknowledge the very hard work of counsel, and their co-operation with one another, in preparing and organizing the massive record and collection of authorities (in both paper and digital form) for the hearing. I found that having the record and authorities in searchable, bookmarked, digital format was extremely helpful. For the many affidavits filed, having indexes to the exhibits was essential. I am also much indebted to counsel for their very thorough, thoughtful and helpful written submissions, as well as for their oral submissions at the hearing. "Adair J." Appendix "A" - Defamatory statements alleged to have been made by A.B. A.B. Pleaded Sting alleged Defence(s) in play A.B. No. 1 On or about November 12, 2015 A.B. verbally published defamatory statements to the defendants Keith Maillard, Annabel Lyon, Chelsea Rooney and others known to A.B. saying that the plaintiff had "raped", "sexually assaulted" and "physically assaulted" her. A.B. No. 1 meant and was understood to mean, in both its literal and natural meanings, that the plaintiff raped, sexually assaulted and physically assaulted A.B. Limitation Act Weber Qualified privilege A.B. No. 2 In 2018 A.B. published in an art show and in multiple websites and in publications offered for sale on the internet the following false and defamatory statements regarding the plaintiff, beginning in or about May

of 2018 and continuing: a) "It's not just what he did, but that he was able to do it for so long. The Rape spans six years, and the losses keep piling up. It makes you sick and sad and filled with rage that it went on for so long. But that's not on you. That's on him" b) "It's terrifying to try to exist in the world again, because not only is the man who raped you determined to punish you, so are many powerful people who support that man" c) "Exhibition by A.B. derives from what A.B. refers to as her Rape a narrative after she disclosed being sexually assaulted, assaulted and abused by a professor" d) "March On my back, on the floor of his office. He straddled over me, pushing up my dress 'please no please no' begging him no May came to naked on the floor" e) "no" he forced me onto my knees put his in my mouth took a cell phone photo He said 'I better trash this before I go home' A.B. No. 2 meant and was understood to mean, in both its literal and natural meanings that the plaintiff raped, sexually assaulted and physically assaulted A.B. Statements are not defamatory Fair comment Appendix "B" - Defamatory statements alleged to have been made by Professor Maillard Maillard Pleaded Sting alleged Defence(s) in play Maillard No. 1 On or about November 13, 2015 Maillard spoke the following false and defamatory words, or substantially similar words to several colleagues of the

plaintiff in the UBC Creative Writing Department: a) "Steven Galloway raped A.B." b) "Steven Galloway sexually assaulted A.B." c) "Steven Galloway physically assaulted A.B." On or about November 15, 2015 Maillard repeated Maillard Defamation 1 to all tenured and tenure-tracked faculty in the UBC Creative Writing Department. Between November 12 and 18, 2015 the defendant Maillard further defamed the plaintiff by verbally repeating Maillard Defamation 1 to Chelsea Rooney and others known to him. Maillard No. 1 meant and was understood to mean, in its literal and inferential meaning, that the plaintiff raped, sexually assaulted and physically assaulted A.B. No defamatory statements were made Limitation Act Weber and University Act Qualified privilege Maillard No. 2 Maillard also published on Twitter the following false and defamatory words regarding the plaintiff on or about February 11, 2018. The context was that an article in the Walrus, after further editorial review, removed a portion of the article that repeated an unsubstantiated allegation of sexual assault. Maillard republished the same unsubstantiated defamation allegation: "A very serious omission She has stated her assault allegations were not about an affair at all. The fact that should not have been removed. Shame on you Walrus" Same as Maillard No. 1 Words were not defamatory. Fair Comment Qualified privilege

(response to attack) Maillard No. 3 Maillard also published in an essay titled "Burn" in or about September of 2018 the following false and defamatory words regarding the plaintiff, in the context of wide public knowledge by that point that A.B. had accused the plaintiff of rape and sexual assault: "I have received express permission from the Main Complainant to disclose that she has told me her story. I believe her" Same as Maillard No. 1 Same as Maillard No. 2 Maillard No. 4 Maillard also posted on Twitter on or about December 12, 2016 included that "The allegations that were investigated included that Mr. Galloway sexually assaulted A.B." Same as Maillard No. 1 Words were not defamatory Justification Limitation Act Qualified privilege (response to attack) Appendix "C" - Defamatory statements alleged to have been made by Professor Lyon Lyon Pleaded Sting alleged Defence(s) in play Lyon No. 1 On or about November 16, 2015 Lyon spoke the following false and defamatory words, or words substantially similar, about the plaintiff to all tenured and tenure track faculty of the UBC Creative Writing Department, all stated in the context of the same group of people having heard Maillard Defamation 1: "The complainant's allegation of sexual assault is true. Voice messages to her from Steven Galloway prove it. Galloway has never had any relationship with A.B. and was being dishonest when

he suggests otherwise" Lyon No. 1 meant, in both its literal and natural meanings, that the plaintiff had committed rape, sexual assault and physical assault upon A.B. No defamatory statements were made Limitation Act Weber and the University Act Qualified Privilege Lyon No. 2 On or about November 16, 2015 Lyon spoke the following false and defamatory words, or words substantially similar, about the plaintiff to all tenured and tenure track faculty of the UBC Creative Writing Department, all stated in the context of the same group of people having heard Maillard Defamation 1: "A person I assigned to find other complainants has confirmed there are many women ready to come forward with similar allegations" Lyon No. 2 meant, in its literal and natural meanings, that the plaintiff had committed rape, sexual assault and physical assault upon A.B, and that the plaintiff had committed rape, sexual assault and physical assault against many other women. Same as Lyon No. 1 Appendix "D" - Defamatory statements alleged to have been made by Chelsea Rooney Rooney Pleaded Sting alleged Defence(s) in play Rooney No. 1 Rooney, on or about November 18, 2015 spoke the following false and defamatory words to Erin Flegg, Sierra Skye Gemma and others known to her: "Steven Galloway raped A.B." Rooney No. 1 meant and was understood to mean, in both its literal and natural meanings, that the plaintiff

raped, sexually assaulted and physically assaulted A.B. Statement was not defamatory Justification Qualified privilege Weber Limitation Act Rooney No. 2 Rooney published a false and defamatory statement regarding the plaintiff on Twitter on October 26, 2016, stating: "A woman said she was sexually assaulted. UBC assessed ALL the evidence - including the flawed Boyd Report - and found the truth" Same as Rooney No. 1 Statement was not defamatory Justification Fair comment Rooney No. 3 Rooney published a false and defamatory statement regarding the plaintiff on Twitter on November 16, 2016 as follows: "We can be asked to believe a person who reports sexual assault. And we can believe her. And we do" Same as Rooney No. 1 Same as Rooney No. 2 Plus: implied consent Rooney No. 4 Rooney published a false and defamatory statement regarding the plaintiff on Twitter on November 24, 2016, stating: "A woman broke her silence about sexual assault today, and the signatories of UBCAccountable are still uploading their stories, as if they matter" Same as Rooney No. 1 Same as Rooney No. 3 Rooney No. 5 Rooney published a false and defamatory statement regarding the plaintiff on Twitter on December 5, 2016, stating: "I acted on allegations of violence. Because I believed the allegations." Same as Rooney No. 1 Same as Rooney No. 3 Rooney No. 6 Rooney published a false and defamatory statement

regarding the plaintiff on Twitter on or about Dec 5 2016 "#UBCAccountable and their surrogates have effectively effaced the person who reported sexual harassment and assault" Same as Rooney No. 1 Same as Rooney No. 3 Rooney No. 7 Rooney published a false and defamatory statement regarding the plaintiff on Twitter on or about March 4, 2017 "#UBCAccountable start and end with the woman who reported rape" Same as Rooney No. 1 Same as Rooney No. 3 Appendix "E" - Defamatory statements alleged to have been made by Mandi Gray Gray Pleaded Sting alleged Defence(s) in play Gray No. 1, No. 2 and No. 3 Mandi Gray, on or about November 15, 2016 published the following false and defamatory words about the plaintiff in a series a publications on Twitter: "Prof sexually assaults a student" "a dude who has sexually assaulted someone" "A bunch of Canadian authors jumping to the aid of someone who has assaulted and harassed numerous students" Gray Nos. 1-3 meant and were understood to mean, in their literal and natural inferential meanings, that the plaintiff raped, sexually assaulted and committed sexual violence upon A.B. Statements were not defamatory Fair comment Responsible communication Gray No. 4 Mandi Gray, on or about November 16, 2016 published the following false and defamatory words about the plaintiff on Twitter: "UBC inaction re sex assault" Same as Gray Nos. 1-3 Same as Gray Nos.

1-3 Gray No. 5 Mandi Gray, on or about December 5, 2016 published the following false and defamatory words about the plaintiff on Twitter: "#galloway . . . rapists should be held accountable" Same as Gray Nos. 1-3 Same as Gray Nos. 1-3 Gray No. 6 Mandi Gray, on or about March 14, 2018 published the following false and defamatory words about the plaintiff on Twitter: "Contradiction between supporting those who are sexually assaulted when they are faceless and nameless and the absolute erasure of those who have come forward: see complainants in Galloway and Ghomeshi" Same as Gray Nos. 1-3 Same as Gray Nos. 1-3 Gray No. 7 Mandi Gray, on or about July 6, 2018 published the following false and defamatory words about the plaintiff on Twitter, along with a photo of the art installation referenced in A.B. Defamation [No. 2]: "very important installation about campus sexual violence" Same as Gray Nos. 1-3 Same as Gray Nos. 1-3 Appendix "F" - Defamatory statements alleged to have been made by Alicia Elliott Elliott Pleaded Sting alleged Defence(s) in play Elliott No. 1 Alicia Elliott, on or about January 17, 2017 published the following false and defamatory words about the plaintiff on Twitter: "re Galloway those pesky sexual assault survivors wouldn't shut up" Elliott No. 1 meant and was understood, in its natural meaning, to mean that the plaintiff had committed rape and sexual

assault Statement was not defamatory Justification Fair comment Elliott No. 2 Alicia Elliott, on or about December 29, 2016 published the following false and defamatory words about the plaintiff on Twitter, by saying of a person who had co-authored the UBCAccountable defence of the plaintiff: "This year you've managed to demonize rape survivors" Same as Elliott No. 1 Same as Elliott No. 1 Elliott No. 3 Alicia Elliott, on or about December 12, 2016 published the following false and defamatory words about the plaintiff on Twitter: "They outline the ways that UBC's process of dealing with sexual assault can be improved very well, esp considering they only had 4 months to prepare the report. Especially worth noting in the Galloway case is their definition of "sexual assault." It says, "Consent that is obtained through misuse of a position of trust or authority is not valid consent". Same as Elliott No. 1 Same as Elliott No. 1 Elliott No. 4 Alicia Elliott, on or about February 22, 2018 published the following false and defamatory words about the plaintiff on an internet website for crowdfunding: "powerful men using their access to lawyers to silence the women accusing them of sexual assault . . . Steven Galloway" Same as Elliott No. 1 Same as Elliott No. 1 Appendix "G" - Defamatory statements alleged to have been made by Glynnis Kirchmeier Kirchmeier Pleaded Sting alleged Defence(s)

in play Kirchmeier No. 1 Glynnis Kirchmeier, on or about February 6, 2018 published the following false and defamatory words about the plaintiff: "That piece said Galloway had an 'affair', which we now know is what he calls raping" Kirchmeier No. 1, in both its literal and natural meanings, meant that the plaintiff had committed rape. Statement was not defamatory Fair comment Appendix "H" - Defamatory statements alleged to have been made by Brit Bachmann Bachmann Pleaded Sting alleged Defence(s) in play Bachmann No. 1 On or about January 7, 2018, Brit Bachmann published on Twitter the false and defamatory words regarding the plaintiff, in the context of a reference to A.B.'s accusations against the plaintiff, she referred to A.B. as: "A survivor of sexual assault" Bachmann No. 1, in both its literal and natural meanings, meant that the plaintiff had sexually assaulted a student. Statement was not defamatory Fair comment Bachmann No. 2 On or about January 7, 2018, Brit Bachmann published on Twitter the false and defamatory words regarding the plaintiff, in the context of a reference to A.B.'s accusations against the plaintiff, she referred to the plaintiff as: "a prof who sexually assaulted a student" Same as Bachmann No. 1 Same as Bachmann No. 1 Appendix "I" - Defamatory statements alleged to have been made by Teresa Smalec Smalec Pleaded Sting alleged Defence(s) in play Smalec

No. 1 Teresa Smalec, on or about August 3, 2018, published the following words about the plaintiff on the website Political Letters Live: [A.B.'s] installation, [hyperlink], opened on July 6, 2018 at the [hyperlink] Gallery in [redacted] and remains on view until August 26. Some might be tempted to interpret [A.B.'s] project as a personal narrative emerging out of the #MeToo movement, since its subject matter is a student's reported sexual harassment and sexual assaults at the hands of an unnamed professor. [named art show] derives from what [A.B.] calls her "Rape . . ." I prefer not to describe the panel's disorienting bottom half, except to say that the student claims her sexual assault became what she perceived as a "horrible secret" that left her "in hell with him". Smalec No. 1 meant, both in its literal and natural meanings, that the plaintiff raped and sexually assaulted A.B. Statements were not defamatory Fair comment Appendix "J" - Defamatory statements alleged to have been made by Kiera Anderson Anderson Pleaded Sting alleged Defence(s) in play Anderson No. 1 Kiera Anderson on January 15, 2018 published the following false and defamatory words about the plaintiff on Twitter: "the survivor Galloway assaulted" Anderson No. 1 meant and was understood, in both its literal and natural meanings, to mean that the plaintiff committed a sexual or physical assault on

A.B. Statement was not defamatory Fair comment Responsible communication Anderson No. 2 Kiera Anderson on January 16, 2018 published the following false and defamatory words about the plaintiff on Twitter: "the woman #galloway assaulted" Same as Anderson No. 1 Same as Anderson No. 1 Appendix "K" - Defamatory statement alleged to have been made by Arielle Rombough Rombough Pleaded Sting alleged Defence(s) in play Rombough No. 1 Arielle Rombough, on January 8, 2018, published the following false and defamatory words about the plaintiff on Twitter: "#stevengalloway after he was fired for sexual assault" Rombough No. 1 meant and was understood, in both its literal and natural meanings, to mean that the plaintiff committed sexual assault. Statement was not defamatory Justification Appendix "L" - Defamatory statements alleged to have been made by Marcelle Kosman Kosman Pleaded Sting alleged Defence(s) in play Kosman No. 1 Marcelle Kosman, on May 29, 2017, republished the following false and defamatory words about the plaintiff on Twitter: "We will never know the scope of Galloway's violence and can never fully account for it" Kosman No. 1 meant and was understood, in both its literal and natural meanings, to mean that the plaintiff committed violent assaults. Statements were not defamatory Fair comment Justification Kosman No. 2 Marcelle Kosman, on March 29, 2017, published the following false and defamatory words about the plaintiff on Twitter in response to reference to whether the plaintiff's writings should be included and taught as part of the UBC curriculum: "You cannot teach a rapist if you do not want to promote rape culture" Same as Kosman No. 1 Statements were not defamatory Fair comment