Rainbow Alliance Dryden et Al. v Webster: Court Rules “Groomer” a Slur Against the 2SLGBTQ+ Community

OVERVIEW

In 2023, the Ontario Superior Court of Justice in Rainbow Alliance Dryden et al. v Webster ruled that the word “groomer,” when used to attack the 2SLGBTQ+ and drag community, is a slur and not protected by Ontario’s anti-SLAPP laws.[1]

LEGAL LANDSCAPE

Rainbow Alliance is litigated under s. 137.1 of Ontario’s Courts of Justice Act (the “CJA”). Section 137.1 is intended to combat strategic lawsuits against public participation (“SLAPP”). A SLAPP is a lawsuit that is intended to silence, intimidate, and punish those who have spoken out on matters of public interest by burdening them with the cost of a legal proceeding. Historically, plaintiffs have initiated defamation cases to silence defendants by falsely categorizing their criticism and legitimate speech as defamation.

In response, Ontario’s anti-SLAPP legislation seeks to balance the freedom of expression under s. 2(b) of the Charter with an individual’s right to protection from reputational harm. Section 137.1 of the CJA allows defendants to protect their freedom of expression by bringing a motion before a judge to have a case dismissed early in the litigation process if it is found to be a SLAPP.

A defendant applying for a dismissal under s. 137.1 must demonstrate that the expression at issue in the litigation relates to a matter of public interest.

If the defendant successfully meets this threshold burden,[2] then the plaintiff bears the onus of satisfying the judge that:

1. there are grounds to believe that,
   1. the proceeding has substantial merit, and
   2. the moving party has no valid defence in the proceeding; and
2. the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.[3]

When weighing the public interest in protecting the expression against the harm likely to have been suffered by the responding party, the factors the court should consider depend on the specific factual context of the case. One of these possible factors is whether the expression or the claim may provoke hostility against “an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation.”[4]

If the defendant is successful, the legal proceeding is dismissed. If the plaintiff is successful, the legal proceeding moves forward to trial.

RAINBOW ALLIANCE DRYDEN ET AL. V WEBSTER

This case concerns comments made by the defendant, Brian Webster, on his Facebook page, “Real Thunder Bay Courthouse – Inside Edition.” The comments referred to the plaintiffs, Rainbow Alliance Dryden (“RAD”) and Caitlin Hartlen. RAD is a not-for-profit that provides pride and 2SLGBTQ+ inclusion events and programming, and Caitlin Hartlen is a drag performer and the chair of the Board of RAD.

In September 2022, RAD organized a series of drag events, including a performance by Hartlen that had been featured in a CBC article. Webster’s post contained images of the article, which explicitly identified RAD and Hartlen. Webster wrote, “GROOMERS. That’s the agenda. Just look at the face of the one child in the photo. Tells you all you need to know.”[5] Webster’s post incited hateful and violent comments from several Facebook users, which the plaintiffs argued Webster encouraged through online interactions such as liking comments.

In December 2022, the plaintiffs commenced a defamation action alleging Webster’s speech was a hateful and defamatory attack that publicly and falsely accused them of predatory behaviour. The plaintiffs further alleged that Webster’s post was designed to provoke hostility against a vulnerable group that is protected under s. 15 of the Charter. In response, Webster brought an anti-SLAPP motion under s. 137.1 of the CJA to have the defamation action dismissed.

The Ontario Superior Court of Justice dismissed the defendant’s anti-SLAPP motion. In the first part of the analysis, the court ruled that Webster’s expression did not relate to a matter of public interest. The court reasoned that the proceeding against Webster did not arise from any comments he made about the CBC or the journalist reporting on the drag story time events. Instead, the lawsuit was based on Webster’s expression that stated “grooming is the reason that drag performers “need” to perform for children.”[6] The court found that Webster’s comments perpetuated harmful myths and stereotypes about vulnerable members of society - the 2SLGBTQ+ community – and that perpetuating such myths and stereotypes is not public interest speech.[7] Webster’s motion therefore failed to meet the threshold burden.

The court nonetheless continued the anti-SLAPP analysis and found that, even if Wesbter had met the threshold burden, his motion to dismiss the defamation suit would have ultimately failed under the subsequent stages of the legal test. The court found that there were reasonable grounds to believe that the tort of defamation could be established, that the proceeding had substantial merit, and that Webster had no valid defence to the claim.

Specifically, the court found that the tort of defamation could reasonably be established because the impugned words – referring to drag queens as “groomers” – were published, referred to the plaintiffs, and were defamatory. The court therefore concluded that the suggestion that “drag performers are “groomers” merely because of their sexual or performance identity is defamatory.”[8]

The court also found that Webster could not rely on the defence of fair comment. Fair comment is available as a defence to a defamation claim if the impugned words are expressions of opinion rather than fact.[9] After considering the existing caselaw, the court noted that hate speech, by nature, is not in the public interest because it interferes with public discourse and debate. The court further reasoned that the fair comment defence is defeated by malice, which includes a reckless disregard for the truth. The court thus found that the fair comment defence was defeated, as Webster demonstrated malice by “accusing a group of 2SLGBTQI individuals of having an agenda to “groom” children despite knowing little or nothing about these individuals.”[10]

Lastly, the court ruled that the public interest in allowing the proceeding to continue outweighed the public interest in protecting the expression.[11] The court reasoned that the right to freedom of expression comes with responsibilities, and those responsibilities were heightened as Webster was recognized by several individuals or “followers” as a local media source. Those responsibilities included, for example, not exposing another individual to hatred, contempt, or ridicule by making unfounded allegations solely based on the individual’s membership in a vulnerable, Charter-protected group. The court concluded that there was no public interest in protecting a harmful stereotype that associates 2SLGBTQ+ people with sexual predation against children.[12]

TAKE-AWAYS FOR THE 2SLGBTQ+ COMMUNITY

The Rainbow Alliance decision considers and upholds the recent Supreme Court of Canada decision in Hansman v. Neufeld, another anti-SLAPP case.[13] In Hansman, the Supreme Court recognized the long history of marginalization of the transgender community and acknowledged them as one of the most vulnerable groups in Canadian society.

The facts in Hansman involved Neufeld, a public school board trustee, who made derogatory social media posts regarding an educational initiative intended to guide educators in fostering inclusion for 2SLGBTQ+ students, especially trans students. Hansman, a gay man and the president of a teacher’s union, made statements criticizing Neufeld. As a result, Neufeld sued for defamation. In response, Hansman brought an anti-SLAPP motion. The Supreme Court dismissed Neufeld’s action as an impermissible SLAPP action. The majority reasoned that the public interest in protecting Hansman’s “counter-speech” outweighed the harm that Neufeld claimed to have suffered. The court found that counter-speech motivated by the defence of a vulnerable or marginalized group in society engages the values at the core of the Charter rights to freedom of expression and equality.[14]

Both Hansman and Rainbow Alliance consider how defamation law should balance the right to freedom of expression against the public interest in protecting a socially vulnerable group like the 2SLGBTQ+ community. In Hansman, the defendant used anti-SLAPP laws to protect the public interest in counter-speech in defence of 2SLGBTQ+ people. In Rainbow Alliance, the court dismissed an attempt to use anti-SLAPP legislation to protect hateful and violent stereotypes against the 2SLGBTQ+ community. Importantly, the court continues the recent trend of recognizing the 2SLGBTQ+ community as a vulnerable group and affirms their right to be protected from hate speech.

CONCLUSION

The Ontario Superior Court of Justice’s decision in Rainbow Alliance is significant considering the rise in hate and violence towards the 2SLGBTQ+ community, especially the trans and drag communities. Most recently, the Premier of Alberta, Danielle Smith, introduced policies targeting queer and trans youth and adults.[15] In Rainbow Alliance, the court ruled that “groomer” rhetoric targeting the 2SLGBTQ+ community is not public interest expression protected by Ontario’s anti-SLAPP legislation, but rather hate speech that perpetuates harmful stereotypes and violence against members of the 2SLGBTQ+ community. Given the ongoing environment of hatred and intolerance, Rainbow Alliance provides a strong statement in support of the 2SLGBTQ+ community’s right to live and exist in Canada and be protected from hate speech.

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, Natalie Kolos, and Lauren Malatesta of Borden Ladner Gervais LLP.

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