Background
A.T. and D.C. were teenagers in a consensual sexual relationship in 2019. In 2021, after discovering that D.C. had amassed more than 500,000 TikTok followers and perceiving his content as normalizing sexual misconduct, A.T.—then 16—posted a video identifying D.C. as a rapist. The posts went viral, accumulating more than three million views. A.T. later reported the alleged assaults to police, but no charges were laid. D.C. commenced a defamation action against A.T. in July 2021, and A.T. removed the posts in October 2021.
A.T. applied under s. 4 of British Columbia’s Protection of Public Participation Act (PPPA) to dismiss the defamation action as a strategic lawsuit against public participation (SLAPP). Both parties filed affidavits and were cross-examined; their accounts of the alleged sexual assaults were irreconcilably conflicting. Before the chambers judge, D.C. conceded that A.T.’s expression related to a matter of public interest, and A.T. conceded the proceeding had substantial merit. The live issues were therefore whether D.C. could show grounds to believe A.T. had no valid defence (s. 4(2)(a)(ii)) and whether the harm to D.C. was serious enough to outweigh the public interest in protecting A.T.’s expression (s. 4(2)(b)). The chambers judge dismissed A.T.’s application on both grounds, and A.T. appealed.
A.T. argued on appeal that the chambers judge misconstrued the legal test under s. 4(2)(a)(ii) by reducing it to an impermissible credibility abstention and by accepting D.C.’s bare denial of sexual assault as sufficient. She also argued that the judge erred under s. 4(2)(b) by crediting unsubstantiated harm allegations and by failing to account for the counter-speech character of her expression in the public-interest weighing.
The Court’s Holding
The Court of Appeal dismissed the appeal unanimously, with reasons by Justice Fisher (Justices Horsman and MacNaughton concurring). The court held that A.T.’s submissions overstated the evidentiary standard that D.C. must meet under s. 4 of the PPPA. The “grounds to believe” standard requires only a single basis in the record and the law that is legally tenable and reasonably capable of belief—it does not require the judge to conduct a mini-trial or resolve credibility on the ultimate question of whether a sexual assault occurred. Where the sole disputed issue turns entirely on the parties’ conflicting sworn accounts, declining to make credibility findings is not an error of law; it is precisely what the preliminary nature of the PPPA screening exercise demands.
On the s. 4(2)(a)(ii) no-valid-defence question, the court confirmed that D.C.’s detailed denial of the sexual assault allegations, considered on the record as a whole, was reasonably capable of belief and provided a sufficient basis to support a finding that the justification defence did not tend to weigh more in A.T.’s favour. The court also rejected the argument that a late-stage PPPA application imposes a higher burden on the plaintiff; the legislation contemplates early applications, and even when brought on the eve of trial the exercise remains a preliminary one governed by affidavit evidence and limited cross-examination.
On the s. 4(2)(b) public-interest balancing, the court found no reversible error in the chambers judge’s conclusion that D.C. suffered serious, demonstrable harm—including suicidal ideation, public confrontations, thousands of threatening and hateful social media comments, and lasting mental-health consequences—causally linked to an allegation of rape viewed by more than three million people. The court noted that the mode and reach of Internet publication are proper considerations in assessing harm. The court acknowledged that counter-speech aimed at protecting vulnerable groups attracts significant constitutional protection, but it did not disturb the judge’s ultimate weighing in favour of D.C., whose action the judge found was brought to remedy a legitimate injury rather than to silence public debate.
Key Takeaways
- The PPPA “grounds to believe” threshold is deliberately low and preliminary: a single basis in the record that is legally tenable and reasonably capable of belief suffices—courts must not resolve credibility disputes or dive into ultimate merits at this stage.
- Where the entire factual dispute rests on irreconcilably conflicting sworn accounts of sexual assault, a PPPA judge does not err by declining to weigh credibility; the case-specific assessment belongs at trial.
- Timing does not raise the bar: a PPPA application filed on the eve of trial remains a preliminary screening exercise, and plaintiffs are not required to produce a fully developed damages brief merely because the defendant delayed.
- The “defence could go either way” formulation from Christman v. Lee-Sheriff, 2023 BCCA 363 is of limited utility and potentially inconsistent with other appellate authority; it should not be used as a proxy for the grounds-to-believe analysis.
- Internet publication reaching millions of viewers is a relevant contextual factor in assessing the seriousness of reputational harm under s. 4(2)(b), even where the plaintiff relies primarily on personal affidavit evidence of non-monetary injury.
Why It Matters
This decision provides important guidance on the limits of the PPPA’s anti-SLAPP screening mechanism in cases that turn on disputed allegations of serious criminality. By affirming that the preliminary nature of the s. 4 analysis prohibits credibility-intensive assessments—regardless of how late in the litigation the application is brought—the court preserves the integrity of both the defamation trial process and the PPPA’s protective purpose. Defendants in comparable cases cannot use a PPPA application as a vehicle to obtain a preliminary ruling on the truth of their contested factual allegations.
The decision also has broader implications for expression involving allegations of sexual misconduct. While the court recognized that counter-speech in defence of vulnerable groups engages core constitutional values, it made clear that the PPPA framework does not immunize such expression from a defamation claim at the screening stage when the evidence is genuinely in conflict. The result underscores that anti-SLAPP statutes are screening tools, not merits adjudicators, and that their application requires courts to resist pressure—from either party—to conduct a premature trial on the facts.