Comments seen to undermine authority of a female executive in a male-dominated industry
A recent Court of Appeal for British Columbia decision has set some guiding principles for anti-SLAPP cases involving slander that are likely to reach out beyond the province’s borders – guidance that, according to one lawyer, can be summed up as “you can’t have your cake and eat it, too.”
"As a defendant in a defamation action, you may want to deny you made the impugned statements that are the subject of a defamation action, and that’s absolutely your right as a defendant,” says Meredith Bacal, a partner in the litigation and intellectual property groups at Dentons. "But if you’re going to take that approach, you cannot, at the same time, bring an anti-SLAPP application to say ‘this communication is worthy of protection, and you’re just bringing this defamation action to silence me.’”
In the case of Christman v. Lee-Sheriff, 2023 BCCA 363, that is precisely what happened after a messy situation played out in public. At the time of the incident, Janet Lee-Sheriff was CEO of a mining company, Golden Predator Mining Corp., looking to re-open a mine in the Yukon. Paul Christman was the chief mining engineer for the Yukon Government’s Department of Energy, Mines and Resources. Both attended an investors’ conference in BC, where Lee-Sheriff was presenting. During her remarks, Christman loudly berated her, calling her a liar and accusing her of spreading misinformation about Golden Predator’s licensing status.
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Later, at Golden Predator’s booth on the trade show floor, Lee-Sheriff confronted Christman about what happened. A Golden Predator employee was at the booth, and Lee-Sheriff’s husband was nearby. As the judgement outlines, during that interaction, “Mr. Christman at first denied having made the alleged statements, but then confirmed he had made them.”
There followed a verbal altercation in which Christman allegedly raised his voice and made several statements, including “you are a liar” and “you don’t have licences to operate.” Lee-Sheriff claimed she felt “physically intimidated,” departed, and left her husband to engage with Christman, who allegedly swore and continued verbalizing his accusations.
Lee-Sheriff and Golden Predator filed a suit saying Christman had slandered them. Christman responded that the “lawsuit was intended to silence him and to prevent any public challenge to Golden Predator’s licensing and operations” and applied for dismissal under the Protection of Public Participation Act (PPPA). His application was dismissed by the lower court, partly because he denied making one of the defamatory expressions and partly because of the nature of his speech.
“The appellant’s contention that he can discharge his threshold burden while also denying making the impugned expression is contrary to the framework of the PPPA, which requires the moving party to show that the proceeding arises from an expression they made. A court cannot conduct this exercise if the defendant denies making that very expression,” wrote Justice Anne MacKenzie in dismissing the appeal.
Jake Cabott, a partner in Borden Ladner Gervais’ commercial litigation group who represented Lee-Sheriff and Golden Predator, says this decision provides helpful guidance for anti-SLAPP cases.
“I would say that this is the first appellate decision that I’m aware of where that point has been clarified… We have had at least three lower court decisions across the country where a defendant has made an application under anti-SLAPP legislation and also taken the position that they didn’t say the words or didn't publish the words that they were alleged to have done. It’s nice to have a clear statement from the Court of Appeal on that point.”
He says Ontario and British Columbia have very similar anti-SLAPP legislation, and “what you’ve seen is the courts in BC looking to Ontario courts and Ontario courts looking to BC courts for help in interpreting the statute and applying the statute. I think this will certainly have persuasive authority in other jurisdictions with similar legislation.”
Justice MacKenzie examined how the lower court allowed the presentation of hearsay evidence, which she decided was not an error. Bacal says the fact that the case was about slander but not libel was important.
“It would be hard to make that same case [that Christman denied making the initial comment] in a libel suit, where it is obvious what the words are, versus slander, which has a bit of a he-said/she-said effect of whether the words were said at all.”
The appeal court decision also looked at how the lower court dealt with the question of harm – both monetary and reputational. On the financial side, Golden Predator's share value dropped after the incident, but it was Lee-Sherrif's reputational harm that preoccupied both the lower court judge, Justice Palbinder Kaur Shergill and Justice MacKenzie. Both concluded that Christman’s words were not the type of counter-speech that should be warranted protection under the PPPA.
Instead, Justice MacKenzie agreed with Justice Shergill that Christman’s alleged expressions could undermine “Ms. Lee-Sheriff’s authority and autonomy as a female executive in an industry ‘where the vast majority of executive roles … are occupied by men...
“There was no need for Mr. Christman to air his concerns publicly and in an obviously combative manner,” wrote Justice MacKenzie. “Thus, the judge found the defence of qualified privilege was not legally tenable or supported by the evidence. It is difficult to see how expressions such as ‘get your fucking wife under control’, if made, would be relevant in the circumstances such that the defence of qualified privilege would apply.”
According to Cabott, the PPPA’s framework’s multiple-step approach starts with proving the proceeding arises from a public expression, addressing the merits of the claim and the defence before moving to the final stage, where Lee-Sheriff’s reputation was considered. “At the last stage of the analysis, which is baked into the statute, it has this really discretionary weighing exercise where the court is asked to weigh, essentially, about the value of protecting the speech at issue against the value of allowing a claim to continue.”
This discretionary weighing exercise can have longer-term implications outside of an individual case. Bacal notes the justice’s comments about the gendered language Christman is said to have used as an example of how words and comments might take on their own life. “While not binding, it is something to be mindful of. If you are going to bring an early application to dispose of your case on a record that is not full and complete, you’re going to want to be mindful as to what sort of findings can be made that might follow the litigant throughout the proceeding.”