Friends,

Today, the BC Court of Appeal published the reasons for judgment for their January 28th, 2021 decision to quash Proctorio’s appeal. I am happy to report that a solid precedent has been set which will reduce the potential time, stress, and cost for Protection of Public Participation Act (PPPA) applicants in the future. I’m so happy!

You may read the reasons for judgment here: https://canlii.ca/t/jnvjv

This judgment is not about my appeal of the March 11th, 2022 BC Supreme Court decision to allow a portion of Proctorio’s lawsuit to go forward. We are months away from that appeal being heard. This is about Proctorio’s meritless appeal of a meritless application they filed in April 2021.

Let’s review:

One year ago, just days before my PPPA application was to be heard, Proctorio applied for a court order seeking to cross-examine me about two things:

• My private communications with an American professor and surveillance scholar, who is not party to the lawsuit.
• The internal policies of UBC, my employer at the time, which is not party to the lawsuit.

They also tried to file additional affidavits which would expand the scope of their lawsuit to include all of my tweets since my PPPA application was filed.

Proctorio lost! On June 14th, 2021, Justice MacNaughton denied almost all of Proctorio’s application. This loss is what they sought to appeal. On July 7th, 2021, we received their notice of appeal, and on January 28th, 2022, it was heard. The appeal was quashed before Proctorio even got to argue their case. This was an unequivocal victory by me over Proctorio.

In today’s judgment, the Court of Appeal for British Columbia confirmed that SLAPP plaintiffs cannot appeal preliminary evidentiary decisions like Proctorio tried to do. The Court does not have jurisdiction to entertain these appeals, and this is a good thing: it would create the opportunity for rich litigants to deny SLAPP defendants access to justice by continually bringing meritless applications and appeals. The Court of Appeal has clarified the narrow scope of what can be appealed in the course of a PPPA application. It found that the correct time to appeal these decisions is after the PPPA application has been decided.

Frivolous appeals increase cost and stress, which are most felt by the single person (and their support network) targeted by a lawsuit. This lawsuit has been the most stressful 1 year, 7 months, and 24 days of my life. Every day is felt, and this decision saves months! The PPPA’s provision that applications be heard “as soon as practicable” has sharpened its teeth.

Proctorio has been ordered to pay some of my legal expenses on the appeal. Sadly, not every dollar. With inflation on the rise, I am keen to get back a small part of the life savings I lost in legal bills back in 2020.

Today’s victory wouldn’t have been possible without the invaluable counsel I have received from Catherine Boies Parker, Q.C. and Caroline North of Arvay Finlay LLP. Your contribution helped us set precedent that will protect freedom of expression for many others in the future. Thank you!

Our work is not done. There is too much at stake (see previous update). But today? I’m celebrating a big win.

Sincerely,

Ian Linkletter