Twists And Turns

January 2019

To summarize the story so far: On November 1, 2017, Wilfrid Laurier teaching assistant Lindsay Shepherd played for her class a short clip of a TVO discussion wherein University of Toronto professor Jordan Peterson explains his opposition to being compelled by the government to use the pronouns of choice of transgender persons. On November 7, Shepherd was summoned to a meeting by the instructor of the class, her supervisor, Nathan Rambukkana. Also attending were the head of her department, Herbert Pimlott, and Adria Joel, the acting manager for gendered violence prevention and support. Shepherd took the precaution of recording the meeting on her computer. Although the others in attendance did not know she was recording, they were aware that her computer was open and that she appeared to be taking notes. During the course of the meeting, which lasted almost an hour, Shepherd was accused, among other things, of promoting hatred by allowing students to be exposed to Peterson’s views without condemning them. Peterson was roundly condemned by the two professors throughout the meeting. Feeling abused, threatened, and vulnerable, Shepherd chose to defend herself by taking her story to the media. Eventually, Shepherd released the full recording of the meeting. In June 2018, Peterson filed a statement of claim against the two professors and WLU, alleging over a dozen defamatory statements made during the recorded meeting.

Rambukkana and Pimlott have since filed a statement of defense, denying that their statements are defamatory. In the latest development, they have issued a third-party action against Shepherd, claiming that if the statements they made were found to be defamatory, then she is responsible for disseminating them. According to the National Post, Howard Levitt, Shepherd’s lawyer, says that “the professors” argument makes no sense considering the conversation was also shared by media outlets and others. “Why don’t you sue all the news agencies… that published it, if that’s really your position?” (National Post, 28 December 2018.)

Now, it has never been a defense recognized in law that the plaintiff isn’t suing everybody he or she may be entitled to sue - or everybody who is similarly situated to the one they did choose to sue. The plaintiff is entitled to pick and choose whom they wish to sue, even if their selection is discriminatory. In this context, the two professors who are third-partying Shepherd have no legal obligation to sue any or all of the news media who propagated the story, even if they have a sound case to do so. Levitt’s argument isn’t going to defeat the third party action; but he does have a valid point. In cases where liability is “joint and several,” it does no good to third-party an impecunious student. Even if Shepherd were to be found partly liable for disseminating the two professors’ defamatory statements, Peterson can still collect full damages from the two professors; they will be left to recover what they can from Shepherd. Nothing but short-sighted malice could motivate the two professors to go after an impecunious student rather than news media which have assets and liability insurance to help defray the damages.

In any case, Shepherd probably has a complete defense to the third-party action. To begin with, the two professors are not protected by qualified privilege, as they would have been were they pursuing a legitimate university function in good faith. On December 18, 2017, WLU President Deborah MacLatchy summarized the conclusions of a fact-finding report she had commissioned about the incident, stating that there had never been a formal or informal complaint and that the meeting should never have taken place. In legalese, the two professors were “on a frolic of their own.” What they said to Shepherd at the meeting was therefore fair game for publication - whether they expected that or not.

Nor does it matter that Shepherd recorded their words without their knowledge. If they were on a frolic of their own, they had no legal expectation of privacy, period. She had every legal right to tell the world what she had experienced in that meeting, and if the two professors didn’t know that, well, ignorance of the law is no excuse. Whether Shepherd merely quoted what they had said at the meeting (as she originally did), or played a recording of it (as she later did), is a matter of form not substance.

Moreover, releasing the recording to the media was a reasonable measure for Shepherd to take to vindicate her rights as a TA, a student, and a member of WLU’s academic community. The two professors were clear about the dire consequences Shepherd faced - she was lead to believe that she faced legal jeopardy for propagating “hate,” possible loss of a TA-ship, maybe even expulsion from her course of studies. (Why else would the department head and the acting manager have been involved?) It is entirely foreseeable that someone who is threatened with such legal and academic consequences would seek a lawyer’s advice and defend herself if some action against her were pursued. In Canada, we have public trials and public tribunals, at which the two professors’ words would certainly be expected to be relevant. It was unreasonable for the two professors to think that they had Star Chamber immunity.

The third-party action is almost certainly an act of desperation by the two professors’ lawyer. The best defense the two professors could mount would be on the grounds of academic freedom: we don’t want the courts to be intervening willy-nilly in academic disagreements over the relative merits of professors’ opinions. That is properly the realm of peer review. The reason an academic freedom defense is so unlikely to succeed in this case is that the two professors were not commenting responsibly on Peterson’s academic arguments - not by any reasonable standard of peer review. Comparing Peterson to Hitler is the very epitome of irresponsible academic discourse. What is abundantly clear from the recording of the meeting is that the two professors were more concerned about suppressing academic discussion than promoting “better speech.” It would be nice if our legal system were to set a precedent and recognize that there are limits to the character assassination that even tenured professors can engage in, in the name of academic freedom. Professors should not be exempt from the normal laws of defamation.