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.