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Ontario court allows defamation claim based on

Date Closed

December 14, 2023

Lead Office

Toronto

On December 14, 2023, in its decision on the Rainbow Alliance Dryden et al. v. Webster, 2023 ONSC 7050 case, the Ontario Superior Court of Justice ruled that "groomer" slurs targeting drag performers are not protected by Ontario’s anti-SLAPP law and may be the subject of a defamation claim.

Rainbow Alliance is a significant victory for the 2SLGBTQI+ community and for drag performers. The Court affirmed that anti-SLAPP laws do not protect those who perpetuate harmful tropes and incite hatred toward marginalized communities.

The Facts/Background

Rainbow Alliance Dryden ("RAD"), along with various community partners, organized a series of drag events that were to take place in September 2022. Caitlin Hartlen was to be a performer at one of the adult-only drag show. The Ontario Provincial Police received a call alleging that one of RAD's events was an effort to "groom children", and the police investigated the complaint. RAD organizers and supporters of the event in the community were angry and distressed by the police investigation of the complaint.

On September 16, 2022, a news article was published on the Canadian Broadcasting Corporation website with the title, “Dryden, Ont., was all set to host a weekend drag event. Then police responded to an unfounded prank call”.

On September 17, 2022, the 'Real Thunder Bay Courthouse - Inside Edition' Facebook page (the "Courthouse Page") published a post containing images of the September 16, 2022 CBC article. The post included the photograph that appeared in the CBC article, along with Hartlen’s name. It accused RAD and Hartlen of being “GROOMERS”. According to expert evidence later filed in court, this is a defamatory slur that has long been used to target 2SLGBTQI+ people. 

Brian Webster, the defendant, is the individual who administers the Courthouse Page. Webster brought a motion under s. 137.1 of the Courts of Justice Act and sought to have the plaintiffs' defamation action against him dismissed as "strategic litigation against public participation" ("SLAPP").

Court Decision

Nieckarz J. rejected Mr. Webster’s argument and denied his motion at the first stage of the anti-SLAPP test.

The judge found that the defamation action did not arise from comments the defendant made about the CBC’s reporting on drag events. Instead, the proceeding arose from the defendant’s statement that grooming is the reason that drag performers “need to perform for children.” Justice Nieckarz agreed with the plaintiffs that perpetuating such stereotypes and myths about members of the 2SLGBTQI+ community is not public interest speech.

Though Nieckarz J. dismissed the motion at the first stage, she went on to consider the subsequent stages of the anti-SLAPP law. She found that Mr. Webster's motion also failed at the second and third stages, because; a) there were reasonable grounds to believe that the plaintiff’s claim had substantial merit and that Mr. Webster had no valid defence; and b) there was no public interest in protecting the use of a harmful trope that associates 2SLGBTQI+ people with predatory behaviour.

McCarthy Tétrault successfully represented the plaintiffs in the Rainbow Alliance motion with a team led by Adam Goldenberg that included Ljiljana Stanic, Leah Strand and Will Dandie, along with co-counsel from Judson Howie LLP.

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