Rainbow Alliance Dryden et al v. Webster, 2023 ONSC 7050
The Ontario Superior Court of Justice has ruled that “groomer” slurs targeting members of the 2SLGBTQI and drag community do not attract the protection of Ontario’s anti-SLAPP laws.
In Rainbow Alliance Dryden et al v. Webster, 2023 ONSC 7050, Nieckarz J. determined that statements alleging that drag performers “sexualize children and aim to recruit them into the 2SLGBTQI community” perpetuate harmful stereotypes and myths. Her Honour found that such statements do not constitute expression on a matter of public interest. Her decision dismissed the defendant's anti-SLAPP motion on this basis.
The plaintiffs in this case are a small-town Pride organization and a local drag king. The motion decision clears the path for them to continue their defamation action against the defendant, a Thunder Bay Facebook blogger.
What is a SLAPP?
‘SLAPP’ means strategic litigation against public participation. A SLAPP is a lawsuit that is intended to silence critics who speak out on matters of public interest by burdening them with the cost of a legal proceeding. SLAPP cases are typically rooted in claims of defamation.
Ontario’s anti-SLAPP law, set out in section 137.1 of the Courts of Justice Act, seeks to strike a balance between free expression and reputational harm by providing a mechanism for defendants in such lawsuits to bring a motion before a judge to have the case dismissed at an early stage of the litigation if it is determined to be a SLAPP.
The legal test under the anti-SLAPP law requires that the defendant first show that the expression at issue in the litigation relates to a matter of public interest. If so, the plaintiff must then satisfy the judge:
(i) that there are grounds to believe that their legal proceeding has substantial merit and the moving party has no valid defence, and
(ii) that the harm suffered by the plaintiff as a result of the expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the free expression at issue.
If the defendant is successful on the anti-SLAPP motion, the legal proceeding is dismissed. If the plaintiff is successful, the legal proceeding continues to move forward to trial.
What is this case about?
Rainbow Alliance concerns posts to a Facebook page with a large readership in northwestern Ontario. The defendant, Brian Webster, administers this Facebook page. The page claims to be a “Media/news company”. Nieckarz J.’s decision describes it as a platform for Mr. Webster’s “reporting of, and opinions on, various issues”.
In September 2022, Mr. Webster published a post to his page consisting of screenshots of a CBC news article. The article was about a series of drag performance events being planned by Rainbow Alliance Dryden (RAD). RAD is the 2SLGBTQI Pride organization serving the City of Dryden and surrounding area. The drag lineup in question included a drag story-time event at the local public library, a drag brunch that was open to all ages, and a drag show for adults.
Mr. Webster’s post identified RAD and the individual plaintiff, who was a local drag king and the chair of RAD. Mr. Webster wrote (among other things):
ASK YOURSELF WHY THESE PEOPLE NEED TO PERFORM FOR CHILDREN?
GROOMERS. That’s the agenda. Just look at the face of the one child in the photo. Tells you all you need to know.
The post subsequently attracted numerous unsavoury, hateful, and violent comments from members of the public, which the plaintiffs argued that Mr. Webster encouraged through his online interactions on the page. These comments included commentary describing the plaintiffs as “deranged people”, “fucking pedophiles”, and proponents of bestiality. One commenter mused about buying tags to “hunt these animals” and to “take care of them”. In the days which followed, posters also appeared around the plaintiffs’ community suggesting that RAD’s events were not appropriate for children and containing references to pedophilia.
The plaintiffs commenced their defamation action in December 2022, alleging that Mr. Webster’s post was a hateful and defamatory attack that falsely accused them of predatory behaviour. The plaintiffs claimed that his post was designed to provoke hostility against a Charter-protected identifiable group.
Mr. Webster responded with an anti-SLAPP motion alleging that he was expressing his opinion about the CBC article, which he had shared photos of in his post. He claimed he was expressing his views on the issues raised by the article and the CBC's approach to the story, and that his post was a critique of public funding of the CBC.
What was decided?
Mr. Webster’s motion was defeated on the first stage of the anti-SLAPP test when Nieckarz J. concluded that his expression did not relate to a matter of public interest. Her Honour went on to explain that she would have dismissed the motion on the later stages of the test as well.
Public Interest Threshold
At the first stage of the test, Her Honour compared this case and Paramount v. Johnston, 2018 ONSC 3711, which states that an utterance made in the course of public interest discussion does not make that expression relate to a matter of public interest.
Likewise, Nieckarz J. concluded that the proceeding against Mr. Webster did not arise from any comments he had made about the CBC, the journalist, or news reporting on drag events (which on their own might have been matters of public interest discussion). Instead, Her Honour found that the action was rooted in “the portion of the expression that states grooming is the reason that drag performers ‘need’ to perform for children.” Her Honour further stated that
The Defendant’s comments went well beyond that, perpetuating hurtful myths and stereotypes about vulnerable members in our society. Webster’s argument that he was accusing the CBC of grooming has no merit based on a plain reading of the post.
Though Nieckarz J. concluded that the expression did not relate to a matter of public interest, she completed the full anti-SLAPP analysis and concluded that she would still have dismissed Mr. Webster's motion under the subsequent stages of the legal test.
At the merits stage of the test, Her Honour found that there were both reasonable grounds to believe that the claim had substantial merit and that Mr. Webster had no valid defence.
First, she found that the elements of the tort of defamation appeared to be satisfied: the words were published, they appeared to refer to the plaintiffs, and there was reason to believe that the expression was defamatory. Of that last element of defamation, Her Honour stated:
It is reasonable to conclude that the suggestion that … drag performers are ‘groomers’, merely because of their sexual or performance identity, is defamatory. The implication is that drag performers are manipulating children for pedophilic and abusive purposes. The hateful comments accompanying the defamatory post demonstrates that this is how readers interpreted the expression.
Nieckarz J. also noted that courts have consistently found that smearing someone as a “pedophile” is likely to cause serious harm to reputation.
Second, Her Honour found that there was reason to believe that Mr. Webster’s could not avail himself of the defence of fair comment. She stated that “there are grounds to believe that the defence of fair comment is not available for unfounded accusations that a group of 2SLGBTQI individuals are ‘groomers’.”
Her Honour based this conclusion on her findings that:
There was no factual basis for the allegation that the drag performers in question were “groomers”,
Mr. Webster’s statements were not recognizable as an opinion, but statements of fact (his post purports to assert an objective truth – that drag performers have an agenda to “groom” children),
Mr. Webster could likely not satisfy the requirement of fair comment of holding an objective honest belief in his expressed opinion based on provable facts, and
There were grounds to find that the expression was made out of malice, which defeats fair comment (malice can include reckless disregard for the truth, such as accusing a group of performers of having an agenda to “groom” children despite knowing nothing about those individuals).
The decision also referred to case law, as part of this analysis, for the proposition that "hate speech is by its nature not in the public interest".
Public Interest Balancing
On the final stage of the anti-SLAPP test, Nieckarz J. concluded that the proceeding was an appropriate limit on the defendant’s free expression. She found that there was no public interest in protecting the use of a harmful trope that associates 2SLGBTQI people with predatory behaviour:
Along with rights come responsibilities, especially when one is recognized by a number of individuals or “followers” as a local media source. Not exposing another individual to hatred, contempt or ridicule by making allegations that have no basis in fact, and are founded solely on the fact that the individual is a member of a vulnerable, Charter-protected group, is such a responsibility. I simply cannot find any public interest in protecting a harmful trope that associates 2SLGBTQI people with sexual predation against children. On the other hand, there is considerable public interest in allowing individuals who are the victims of such conduct to publicly defend their reputation in a court of law.
This passage from the decision suggests that as a publisher that many people turn to as a media source, Mr. Webster has heightened responsibility for the content he generates.
What happens next?
With the defendant’s motion dismissed, the plaintiffs can proceed with their legal action in defamation. Notably, this Kenora-based proceeding has a counterpart action based in Thunder Bay, in which Mr. Webster has made similar online comments about another group of drag performers. Both actions have yet to be determined on the merits and remain before the court.
The Rainbow Alliance anti-SLAPP decision comes soon after the Supreme Court of Canada’s landmark decision in Hansman v. Neufeld, 2023 SCC 14, in which the court recognized, in another anti-SLAPP case, that transgender and gender diverse individuals have a regrettably long history of marginalization and remain one of the most vulnerable groups in Canadian society.
In that case, Hansman, a teacher, had made statements criticizing Neufeld, a public school board trustee. Neufeld had made social media posts many felt were derogatory of 2SLGBTQI students, and trans students in particular. Neufeld sued Hansman for defamation over the criticism of his comments.
In dismissing Neufeld’s defamation suit as a SLAPP, the Supreme Court of Canada recognized the importance of "counter-speech" in Canada's freedom of expression jurisprudence, stating that counter-speech reflects the idea that the open exchange of ideas unlocks the value of free expression. The Supreme Court wrote that counter-speech motivated by the defence of a vulnerable or marginalized group in society engages the values at the core of the Charter right to equality.
Rainbow Alliance is notable because it is based on the reverse facts of Hansman, as the 2SLGBTQI interests are represented by the plaintiff, not the defendant. Rainbow Alliance is about the use of defamation law to protect a vulnerable group from harm rather than to protect free expression targeting that vulnerable group.
What the two decisions hold in common is that they appear to take an approach to the law of defamation, and to how public interest is constituted in that analysis, that recognizes the social context in which the expression occurs. In Hansman, the public interest in counter-speech in defence of a marginalized group is protected by anti-SLAPP laws; whereas Rainbow Alliance dismisses an attempt to use anti-SLAPP laws to protect expression that perpetuates hatred toward members of a Charter-protected marginalized group based on meritless, harmful tropes.
The plaintiffs in the Rainbow Alliance anti-SLAPP motion were represented by Douglas Judson and Peter Howie of Judson Howie LLP and Adam Goldenberg, Ljiljana Stanic, and Leah Strand of McCarthy Tétrault LLP. Egale Canada intervened on the motion and was represented by Daniel Girlando, Lauren Malatesta, and Natalie Kolos of Borden Ladner Gervais LLP.