Canada: Ontario Court SLAPPs Down "Groomer" Slur: Drag Performers Can Continue With Defamation Claim

The Ontario Superior Court of Justice ruled on December 14, 2023 that "groomer" slurs targeting members of the 2SLGBTQI+ community are not protected by Ontario's anti-SLAPP law and may be the subject of a defamation claim.

What You Need to Know

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. Justice Nieckarz concluded that such statements do not constitute expression on a matter of public interest.

The plaintiffs are a small-town Pride organization and a local drag king. The decision clears the path for them to continue their defamation action against the defendant, a Thunder Bay blogger.

Background

The defendant, Mr. Webster, administers a Facebook page with a large readership in northwestern Ontario. Mr. Webster published a post on his page containing images from a CBC news article. The article was about drag events organized by Rainbow Alliance Dryden (RAD), a Pride organization, including a drag story-time event at the local public library. Webster's post referred to the plaintiffs as "groomers",¹ asserting "[t]hat's the agenda."

The post attracted many hateful and violent comments from members of the public. In the following days, posters appeared around the plaintiffs' community suggesting that RAD's events were not appropriate for children and containing references to pedophilia.

The plaintiffs commenced a defamation action, alleging that Mr. Webster's post falsely accused them of predatory behaviour and provoked hostility against a Charter-protected group.

The defendant brought a motion under Ontario's anti-SLAPP law.² "SLAPP" stands for Strategic Litigation Against Public Participation. A SLAPP is a lawsuit brought to silence public debate. Anti-SLAPP laws provide a mechanism for defendants in such lawsuits to seek to have the actions dismissed at an early stage.

The anti-SLAPP law requires the defendant to first show that the expression at issue relates to a matter of public interest. If so, the plaintiff must then show that the legal proceeding has substantial merit and that the harm suffered by the plaintiff outweighs the public interest in protecting the free expression at issue.

In his motion, the defendant alleged that his post was a critique of public funding of the CBC, not a personal attack on the plaintiffs. He said he was expressing his opinion on a matter of public interest.

Court Ruling

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 speech in the public interest.

While 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:

• there were reasonable grounds to believe that the plaintiff's claim had substantial merit and that Mr. Webster had no valid defence; and
• there was no public interest in protecting the use of a harmful trope that associates 2SLGBTQI+ people with predatory behaviour.

Key Takeaways

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

The decision builds on the Supreme Court of Canada's recent ruling in Hansman v Neufeld, 2023 SCC 14. In Hansman, the Court recognized the history of marginalization of transgender and gender diverse individuals in Canadian society (see our previous blog post).

Footnotes

1. The plaintiff's evidence confirmed that "groomer" refers to someone who manipulatively develops a relationship with a child to exploit and abuse them.

2. Section 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

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