IN THE SUPREME COURT OF BRITISH COLUMBIA Place and Date of Trial/Hearing: New Westminster, B.C. November 1, 2019 Place and Date of Judgment: New Westminster, B.C. December 19, 2019 Note: some sections quoting past precedents have been removed for clarity **Introduction** [1] This application is brought by the defendants to dismiss a defamation claim pursuant to the provisions of the Protection of Public Participation Act, S.B.C. 2019, c. 3 [PPPA]. [2] The plaintiff is a long-standing member of the bondage and discipline, submission and masochism community (also known as the “BDSM” or “kink” community) in the Lower Mainland area of Vancouver. [3] One of the defendants, Metro Vancouver Kink Society (“MVKS”), is a society whose purposes include educating and advocating for members of the Vancouver kink community. MVKS regularly hosts a variety of educational and social events for its members and for members of the broader kink community. [4] The Plaintiff claims in defamation against both the MVKS and its individual directors in respect of an open letter published on or about July 12, 2017 (the “Open Letter”), statements made at a town hall meeting of the MVKS on August 4, 2017 and the subsequent publication of minutes of the town hall meeting on September 5, 2017. [5] The Open Letter was addressed to a pseudonym used by The Plaintiff, Lord Braven, and was published on internet sites commonly accessed by members of the Vancouver kink community. The Open Letter included statements that Lord Braven (The Plaintiff) had invited a minor to attend at his home for a BDSM-related discussion, had abused vulnerable young women, and had performed BDSM acts without the consent of his partners. [6] The statements made at the August 2017 town hall meeting, amongst other things, outlined concerns of the MVKS regarding potential predatory sexual conduct and potential legal exposure resulting from The Plaintiff inviting a minor to have a BDSM-related discussion. The Open letter was read at this meeting. [7] The Plaintiff claims that the Open Letter and the statements made at the town hall meeting and later published constitute defamatory statements. He seeks damages and injunctive relief against the MVKS and its directors. +++++++++++++++++++++++++++++++++++++ Note: the following section is intended as a brief introduction to the legal matters. It is not part of the judgement ##A. Defamation Primer## BC law provides four defenses to a defamation lawsuit: 1. Truth: Proving that the defamatory statements are true 2. Qualified Privilege (described below) 3. Fair Comment: To establish a defence of fair comment, the comment must be on a matter of public interest, based on fact, recognizable as comment, although comment may include inherently debatable inferences of fact, and fairly made, in the sense that a person could honestly make the comment on the proven facts. If the defendant establishes that these elements are present, the defence may still be defeated if the plaintiff establishes that the defendant was actuated by malice. 4. Responsible Communication (usually applies to journalism): Requires that the plaintiff's side of the story was sought and accurately reported It is noteworthy that MVK is not using truth as a defense. The defenses of Fair Comment and Responsible Communication were not broached at the SLAPP hearing. ##B. SLAPP Primer## On November 1st, there was a hearing on an application made by MVK to dismiss Braven’s defamation lawsuit filed against them. SLAPP (Strategic Litigation Against Public Participation) typically involves large resource companies silencing protesters with expensive, but spurious, litigation. The BC anti-SLAPP law, passed early in 2019 and backdated, is modelled after legislation passed in Ontario, and allows for defamation suits to be dismissed if all of the following criteria are met: 1. The proceeding arises from an expression made by the applicant (MVK); 2. The expression relates to a matter of public interest; 3. The respondent (Braven) has not satisfied the court that the proceeding has substantial merit; 4. The respondent has not satisfied the court that the applicant has no valid defence to the defamation; and 5. The harm likely to have been suffered by the respondent as a result of the expression is not serious enough as to outweigh the public interest in protecting that expression. +++++++++++++++++++++++++++++++++++++++++ **Issues** [14] For the purposes of this application, the defendants concede that the statements at issue, the Open Letter and later statements, constitute expressions made by them. I accept that this is the case. [15] The first issued to be decided is whether under the first stage of the analysis, the Open letter and later statements relate to a matter of public interest. [16] Second, if I find that the Open Letter and later statements relate to a matter of public interest, I must then decide whether the defamation claim and the defence relied upon have merit. In this case the defence relied upon is that the expressions are protected by qualified privilege. [17] Finally, if the merits-based hurdle is satisfied I must then determine whether, on balance, the expressions satisfy the publicinterest requirement under s. 4(2) of the PPPA. **Do the Expressions Relate to a Matter of Public Interest?** [20] The Open Letter, which purports to have been sent on behalf of the MVKS board of directors, begins by advising Lord Braven (The Plaintiff) that MVKS is terminating its “professional relationship” with him. The reasons cited for this termination were the recent allegations of misconduct made against him, his refusal to accept accountability for the conduct alleged, and his “pattern” of denying the allegations. In the letter MVKS states that it will no longer work with him or recommend him in any professional capacity as a result of the recent allegations made against him and a pattern of past bad behavior and that it would no longer work with him or recommend him in any professional capacity. [21] Next, the drafter of the Open Letter explains the reasons for using that format, including the following: a) MVKS wanted to explain its decision-making process (in ending its relationship with Lord Braven) to the kink community; b) MVKS thought that its concerns regarding Lord Braven’s behaviour were serious enough to warrant publication; and c) MVKS thought that the allegations against Lord Braven were serious, credible and numerous. [22] The Open Letter then goes on to set out representative examples of the allegations of misconduct, which I have already summarized above (see paras. 5 and 6). It concludes by listing the types of activities that MVKS will no longer engage in with The Plaintiff. [27] Reading the entirety of the Open Letter and the communications which followed, it is clear to me that the comments made largely concern allegations of improper conduct on the part of The Plaintiff in the context of a public announcement explaining the decision of MVKS to terminate any further engagement with him. Issues of consent boundaries and safe interactions between members of the Vancouver kink community concern the welfare of community members, that is, their safety and health, and therefore would be of substantial concern. [28] I do not consider that the expressions at issue arise solely in the context of a private dispute between individuals or a grouping of individuals. They are not merely a defamatory attack veiled as a discussion of a matter of public interest. [29] In summary, I find that the defendants have satisfied their onus to show that the expressions within the Open Letter, and made later at and after the town hall meeting, concern matters of public interest. The onus now shifts to The Plaintiff to satisfy the merits-based hurdle. **Are There Reasonable Grounds to Believe that The Plaintiff’s Claim Has Substantial Merit? ** [30] Pursuant to s. 4(2)(a)(i), the onus is on The Plaintiff to satisfy the court that there are grounds to believe that his defamation action has substantial merit. [35] As set out at para. 28 of Grant, a plaintiff in a defamation case is required to prove 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; that the words referred to the plaintiff; and that the words were published, meaning that they were communicated to at least one person other than the plaintiff. [36] There does not appear to be any dispute at this stage, that a judge could reasonably find that these requirements have been met. In fact, the defendants acknowledge that the Open Letter, the statements at the town hall and the subsequent publication of the minutes are expressions that could reasonably be held to be defamatory. [37] I find that a reasonable trier of fact could conclude that the requirements for proof of a defamation claim set out in Grant have been met and therefore, that The Plaintiff’s claims have substantial merit. Therefore, he has satisfied the requirement under s. 4(2)(a)(i) of the PPPA. **Are There Reasonable Grounds to Believe that the Defendants Have No Valid Defence?** [38] Pursuant to s. 4(2)(a)(ii), the onus is on The Plaintiff to satisfy the court that there are reasonable grounds to believe that the defendants have no valid defence to his defamation claim. [39] The Ontario Court of Appeal in Pointes interpreted “valid” as meaning successful. The court, at para. 84, explained how the plaintiff can demonstrate that there is no valid defence: … The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed. If that assessment is among those reasonable available on the record, the plaintiff has met its onus. [Emphasis added.] [40] Although the defendants have pleaded three defences to The Plaintiff’s defamation claim – qualified privilege, fair comment and responsible communication on a matter of public interest – they only rely on the defence of qualified privilege for this purposes of this application. [41] The defence of qualified privilege is pleaded as follows at para. of Part 3 of the defendants’ response to civil claim: 4. The alleged defamatory expressions … fall within the protection of the common law of qualified privilege as the Defendants were performing a public duty and the alleged defamatory statements were only made to people with a corresponding interest in receiving those statements. [42] In a decision of this Court, Rolfe v. Hertz, 2009 BCSC 1522, Madam Justice Holmes, as she then was, summarized the key elements of the defence of qualified privilege as follows: [20] A qualified privilege entitles a person, in certain circumstances, to publish false defamatory statements with impunity. The privilege arises not from the type or the content of the statements, but from the nature of the occasion on which they were made. The defendant carries the burden of establishing that he or she made the statement on an occasion that attracts the privilege. [21] An occasion of qualified privilege may arise where the maker and the recipient of the statements had mutual interests or duties to make and receive them. As Professor Brown explains at s. 13.2(5): The law will protect the publisher of a defamatory statement provided the publisher has an interest or duty to communicate the information and the recipient has a corresponding duty or interest to receive it. Reciprocity of interest in essential. [22] Because the occasion is assessed objectively, the defendant’s personal belief that he or she was fulfilling a duty to communicate does not create such a duty. The is not whether the defendant had a right to make the communication or thought that he or she had a duty to make it, but rather whether a reasonable person would feel compelled by a duty to make the communication … [43] Based on the evidence in the motion record before me, it is arguable that the defendants had an interest in, or a duty regarding, the publishing of the Open Letter and the statements which followed at the town hall meeting. I find this given MVKS’s educating and advocating for members of the Vancouver kink community and its involvement in organizing social events for its members and for members of the broader kink community. I find that a reasonable judge could likely find that this aspect of the test for a defence of qualified privilege is made out. [44] Even where an interest or duty to publish a defamatory statement is found a defence of qualified privilege may be defeated if the communication is published to an excessively wide field. In the decision of Jones v. Bennett, [1969] S.C.R. 277 at 285 [Jones], the Supreme Court of Canada stated: ... it must be regarded as settled that a plea of qualified privilege based on a ground of the sort relied on in the case at bar cannot be upheld where the words complained of are published to the public generally or, as it is sometimes expressed, “to the world”. [45] The principle that publication to the world at large defeats a defence of qualified privilege is not absolute: Moises v. Canadian Newspapers Co. (1996), 24 B.C.L.R. (3d) 211 at para. 24 (C.A.). [46] Without some reason for publishing a defamatory statement to the world at large, via the internet such publication may defeat the defence of qualified privilege. In a more recent decision from the Ontario Superior Court of Justice, Canadian Standards Association v. P.S. Knight Co. Ltd., 2019 ONSC 1730 [Knight], the court stated at para. 58: The privilege will be defeated if the information is communicated to an inappropriate or excessive number of peoples or if the information that is communicated was not reasonable appropriate to the legitimate purposes of the occasion (i.e., excessive distribution or inappropriate content). Publication by Internet is rarely treated as necessary or reasonable. In addition, the privilege does not extend to reporting uncorroborated allegations of criminal wrongdoing to the general public as opposed to law enforcement or investigative authorities. [47] The Open Letter was published on the MVKS Facebook page and a kink community website, FetLife. The minutes of the town hall meeting were also published on FetLife. Although I accept that, as suggested by the defendants, most people accessing these sites would likely be from the kink community, I do not understand that broad public access to those websites was restricted. [48] Not everyone who had access to the MVKS Facebook page or FetLife would have had a reciprocal interest in receiving the Open Letter or minutes of the town hall. The evidence in the motion record before me establishes that the Open Letter would be viewed by those outside of the Vancouver kink community with little or no risk of harm resulting from contact with The Plaintiff. In particular, I note the following evidence from the Chairperson: a) the impugned postings would be seen by people around the world; b) the postings would be read by people who may never interact with The Plaintiff; c) the Chairperson did not know exactly who would view the postings; d) the audience for the postings went far beyond MVKS’s own membership; e) not everyone viewing the websites was a member of the kink community; and f) the Chairperson knew that she had no control over whether the postings would be shared by users of the relevant websites. [49] In addition, in response to questions during cross-examination on her affidavit, the Chairperson admitted that some members of the kink community attend at kink include events at The Plaintiff’s and others do not. She admitted that the most likely situation for someone in the kink community to encounter The Plaintiff is either through a kink event at his home or at another specific event that he frequents. There does not appear to have been any effort to direct the distribution of the alleged defamatory statements to those attending kink events at his home or those attending events which he attended. [50] By publishing to the world at large at the town hall and in print on-line the defendants may be unable to establish the required reciprocity necessary to engage the defence of qualified privilege: see Ferreira v. Da Costa, 2019 ONSC 1853 at para. 42. In my view, a reasonable judge could find that the Open Letter and the meeting minutes were published, unnecessarily, “to the world” and therefore that the defence of qualified privilege would not succeed. [51] I do not accept the defendants’ contention that because the documents posted on the websites referred to The Plaintiff by his pseudonym, Lord Braven, and only members of the Lower Mainland kink community would have known who Lord Braven actually was, that they were effectively published to only a smaller group, namely members of the kink community who would have an interest in this communication. In my view, the use of a pseudonym for The Plaintiff in this communication may not be found by a reasonable judge to insulate the defendants from an assertion that the communication was made to the world at large. Whether or not those viewing the communication would know or be able to discovery that Lord Braven was actually The Plaintiff is a question that should be dealt with at trial. [52] In my view the alleged defamatory statements include not so thinly veiled allegations of criminal misconduct on the part of The Plaintiff – in particular, allegations of non-consensual sexual conduct. There is evidence on the record before me which suggests that these allegations were uncorroborated. In Knight the court found that the defence of qualified privilege does not extend to reporting uncorroborated allegations of criminal wrongdoing to the general public, as opposed to law enforcement or investigative authorities. I would not go this far as there may be circumstances in which it is beneficial or necessary to report allegations of criminal wrongdoing beyond the police, to a targeted group of individuals who are potentially impacted by future misconduct. In this case I find that a reasonable judge could conclude that the alleged defamatory statements were published “to the world” and not only to people who had a corresponding interest in receiving them. [53] In conclusion, on the record before me, I find that The Plaintiff has met his onus of proving that a reasonable judge could conclude that the defence of qualified privilege would not succeed. **Does the Public Interest in Continuing the Proceeding Outweigh the Public Interest in Protecting MVKS’s Expression?** [54] Pursuant to s. 4(2)(b), The Plaintiff must also satisfy the court that the harm that was or is likely to be suffered by him as a result of the publication of the alleged defamatory statements is serious enough that the public interest in allowing his defamation claims to continue outweighs the public interest in protecting those statements on the basis of freedom of expression. [56] On the plaintiff’s side of the scale is the harm that has been or would be suffered from the publication of the alleged defamatory statements. A plaintiff seeking to satisfy the public interest portion of the test for dismissal under s. 4(2)(b) must provide some evidence of harm. Harm may include non-monetary harm, such as to the preservation of a plaintiff’s good reputation or personal privacy. It is not necessary or practical for a plaintiff to provide a fully developed damages brief at this stage. A common sense reading of the claim, supported by sufficient evidence to draw a causal connection between the alleged defamatory statements, and damages that are more than nominal will suffice: Pointes at paras. 88, 90. [57] The Plaintiff provided evidence that the publication of the Open Letter and the other alleged defamatory statements have negatively impacted his standing in the kink community and the success of his events. He states in his affidavit, filed in response to the defendants’ application, that since the publication of the Open Letter, the attendance at BDSM events at his home has dropped and he has not conducted any workshops. He states that this change has caused both financial harm and stress, as he can no longer rely on entry fees to offset his costs. He states that he may lose his home because of this financial stress. [58] In addition, The Plaintiff provided evidence that his social circle, which largely consists of members of the BDSM community, has been negatively impacted because of being “branded an abuser and a dangerous predator”. He says that he has lost numerous friendships as a result of the publication of the Open Letter. [59] The Plaintiff provided affidavit evidence that his mental and physical health have been impacted. He says that that, since the publishing of the Open Letter, he has been diagnosed with generalized anxiety disorder and that his pre-existing depression has worsened. In addition, he claims that he was recently diagnosed with atrial fibrillation, which he believes was at least partially caused by extreme stress experienced because of the accusations made against him. [60] The defendants say that The Plaintiff has not provided independent medical evidence with respect to the alleged psychological and physical impacts of the publication of the Open Letter and later materials. In any case, they say that a causal link between the alleged health-related and financial impacts has not been shown. In my view, at this stage of the proceeding, it is not surprising that The Plaintiff has not provided medical evidence. [61] I am satisfied that, given the stage of this proceeding, The Plaintiff has satisfied his obligation to demonstrate that he may have suffered some financial, physical, psychological and social harm as a result of the publication of the Open Letter and later expressions. Notwithstanding that there may be other causes for some of the harm alleged by The Plaintiff, including alleged defamatory statements that are the subject of other proceedings, on a common sense reading of the claim and an evaluation of The Plaintiff’s evidence, I find that there is a causal connection between the alleged defamatory statements and at least some of the harm he alleges that he has suffered. [62] It should be remembered that not all expressions on matters of public interest serve the values underlying freedom of expression. In assessing the public interest favouring the defendants’ freedom of expression, a judge must assess the public interest in protecting the actual expression that is the subject of the lawsuit. The relevant expressions in this case concern the allegations criminal misconduct. In my view, there is reduced public interest in the publication of uncorroborated allegations of criminal misconduct to an excessively broad field. On the record before me, there appears to be a serious question of whether there is evidence corroborating the allegations made against The Plaintiff. I am not satisfied that the public interest in ensuring the safety and health of members of the Vancouver kink community could not have been served by reporting the allegations of criminal misconduct to the police. [63] In addition, the claim of The Plaintiff does not have the hallmarks of the type of anti-SLAPP suit contemplated in the legislative debate. He first asked that MVKS withdraw the alleged defamatory statements and they refused. I do not conclude that this is a situation in which The Plaintiff is attempting to use this litigation to stifle expression or silence his critics. There does not appear to be a power differential in favour of The Plaintiff arising from a greater access to the financial resources required to advance his litigation. Arguably, with respect to the parties’ ability to fund this litigation, the power differential favours the defendants. [64] In summary, I am satisfied that The Plaintiff has demonstrated that the harm likely suffered by him as a result of the publication of the Open Letter, and the relevant communications that followed, is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expressions. **Conclusion** [65] For the reasons set out above, the application of the defendants to dismiss the defamation claim of The Plaintiff is dismissed.