⚖️ Speaking freely

Is hate speech a matter of public interest? Plus BC's new test to dismiss slow proceedings, Saskatchewan's King's Counsel appointments, and the $1 billion contract termination fee.

I’ll be sending the last newsletter of 2023 tomorrow and working on improving Hearsay over the next couple of weeks. Thanks to all 650+ of you for making this publication’s first few months a success.

— Dylan Gibbs

TODAY’S DOCKET

  • No anti-SLAPP protection for hateful online comments

  • BCCA adopts lower bar to dismiss civil proceedings for delay

  • Appointments: federal judiciary and Saskatchewan King’s Counsel

  • Adobe’s $1 billion contract termination fee

ANTI-SLAPP

Internet trolls beware — hateful speech not protected

Troll sitting at desk typing angrily on a keyboard

No, you can’t call drag performers “groomers” with impunity. Ontario’s Superior Court of Justice held that Brian Webster needs to face a defamation trial over comments he made on social media. Webster argued the lawsuit against him was a gag proceeding and tried to dismiss it with an anti-SLAPP motion, but the Court said his speech wasn’t worthy of protection:

[T]he term “groomer” refers to someone who manipulatively develops a relationship or connection with a child to exploit and abuse them. It is a slur that is used to allege that drag performers sexualize children and aim to recruit them into the 2SLGBTQI community. I agree with the Plaintiffs that perpetuating such stereotypes and myths about members of the 2SLGBTQI community is not public interest speech. It is not a matter about which the community has a genuine interest or genuine stake in knowing.

Para 47

What happened: CBC published an article about drag events including an all-ages drag brunch and an all-ages drag storytelling. Webster posted the following comments on Facebook in response:

TAXPAYER FUNDED CBC REPORTER JON THOMPSON HAS AN AGENDA TO PROMOTE

ASK YOURSELF WHY THESE PEOPLE NEED TO PERFORM FOR CHILDREN?

GROOMERS. That’s the agenda.

Public interest: Justice Nieckarz said Webster couldn’t make it past the first hurdle for an anti-SLAPP motion — his speech wasn’t related to a matter of public interest. Webster would have been okay if he had stuck to criticizing CBC for promoting drag events. Or if he had simply expressed an opinion that children shouldn’t attend drag events. But he went further. The Court said it wasn’t a matter of public interest to insinuate a connection between drag performers and pedophilia.

Substantial merit: Even if Webster’s speech had made it past the “public interest” threshold, Justice Nieckarz still would have dismissed his anti-SLAPP motion. She said the defamation action against Webster has substantial merit and Webster doesn’t seem to have any defence.

Limits of anonymity: It’s not the first time Webster has been sued for allegedly making defamatory statements on Facebook. Last time, he advanced the tried and true defence explained in Shaggy’s 2000 classic, “It Wasn’t Me”:

Mr. Webster swears that someone named “Bill” is responsible for Thunder Bay Courthouse – Inside Edition. None of the other witnesses, including Mr. Demasi, have ever heard of or dealt with Bill.

2019 ONSC 4023 at para 18

But that defence wasn’t available to Webster this time around — a word of warning to keyboard warriors everywhere.

HEARSAY ROUNDUP

Canadiana

The British Columbia Court of Appeal updated the test used in the province to dismiss court proceedings for delay. The key change is that a defendant asking for dismissal no longer needs to prove the plaintiff’s delay caused serious prejudice. Prejudice is relevant but not determinative. The change suggests B.C. courts might be more willing to dismiss stale proceedings and clean up their overburdened dockets (although the lawsuit at issue in this case did live to see another day).

🐟 A Manitoba paper mill needs to cough up $1 million for releasing toxic substances into the Saskatchewan River in 2019. It’s one of the largest environmental fines ever handed out in Manitoba.

👑 Saskatchewan announced its King’s Counsel appointments.

Beyond the border

🎨 Design titans Adobe and Figma called off their blockbuster merger yesterday. Adobe agreed to buy Figma for $20 billion last year, but the parties spent 15 months trying to assure regulators the deal wouldn’t harm competition. Yesterday, the companies said they’re killing the deal after realizing it won’t be approved by regulators in the EU and the UK. Adobe now owes Figma a staggering $1 billion termination fee.

🕵️ The European Commission is going after X (Twitter) under the Digital Services Act, initiating the first set of formal proceedings under the relatively new legislation. The allegations target X’s response to misinformation on the platform and its (allegedly deceptive) practice of letting users pay for the blue checkmarks formerly associated with trusted accounts.

JUDICIAL APPOINTMENTS

Former mayor and former law dean join the bench

Red carpet laid out on courthouse steps

Justice Minister Arif Virani announced federal judicial appointments in three provinces yesterday:

  • In Manitoba, Brian Bowman was appointed to the Court of King’s Bench in Winnipeg. He’s the former mayor of Winnipeg — and the first Indigenous person to hold that office.

  • In Ontario, Nathalie Des Rosiers was appointed to the Superior Court of Justice in Toronto. She previously served as an Ontario cabinet minister and as the Dean of Law at the University of Ottawa.

  • In Quebec, Justice Judith Harvie was elevated from the Superior Court to the Court of Appeal. She’s no doubt written plenty of great decisions that aren’t immediately at my fingertips.

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