Lawsuits not always the best recourse against false claims

Question: Recently, Torry Tanner, the United Conservative Party candidate for Lethbridge West, made false and malicious allegations about teachers. Why doesn’t the Alberta Teachers’ Association stand up for its members and sue her for defamation?

Answer: Sadly, it has become a common political strategy for some Alberta politicians, political parties and interest groups to beat up on teachers, the Association and public education, while paying scant attention to the truth of their claims. 

In a slickly produced short video posted to Facebook, candidate Tanner said “Alarmingly, we are seeing increasing instances where kids, even those attending kindergarten, are being exposed to pornographic materials, or worse yet, having teachers help them change their gender identity with absolutely no parental consent or knowledge whatsoever.” She positioned herself as the candidate who would protect children from such abuse.

Of course, the claim is outrageous (although not quite as bizarre as the rumour making the rounds in parts of this province that schools have installed litterboxes for students who identify as cats). Quite apart from the immediate insult to teachers, it combines a pernicious assault on gender minorities (contending that the lived identity of these individuals is somehow illegitimate or disingenuous, being the result of indoctrination in schools) with a cynical effort to undermine public confidence and support for public education, all presumably to build support for private and charter school alternatives.

In response, many teachers and citizen supporters of public education called for the Association to sue Tanner for defaming teachers. The difficulty is that, to succeed, an action for defamation normally requires the defamatory comments to be made about an identifiable individual. While in some cases an action could be brought where no named individual is identified, it must still be established that the comments would be recognized by a reasonable person as being directed toward a specific person. Because Tanner’s comments were so vague and general, in the opinion of our legal counsel, the Association had no viable course of action. 

Despite this reality, some argued that the Association should file suit anyway to protest Tanner’s comments and demonstrate its determination to support members. While it costs very little to file a claim, such an approach would still be unwise. Where it has a political focus and is intended to intimidate or punish, rather than to assert a right recognized in law, litigation is an abuse of the court. With no chance of succeeding, such a filing would undermine the Association’s credibility and reflect badly on members. 

Furthermore, the filing of unfounded actions for defamation with the intention of silencing or impoverishing opposing voices is increasingly being criticized. The strategy has even earned itself an acronym, “SLAPP,” standing for “strategic lawsuit against public participation” and has been widely condemned as fundamentally undemocratic and abusive. It is not a practice that the Association would want to associate itself with, even when the “opposing voices” are deliberately spewing disinformation.

Let’s be clear, though, the Alberta Teachers’ Association will not hesitate to go to court when it has legitimate cause to do so. We have acted to protect the reputation of the Association itself and of individual teachers when they have been attacked by others and have succeeded in either forcing a public retraction of defamatory statements and/or obtaining compensation in the form of court-ordered damages for individual teachers who have been the victims of defamation. As Jim Casey, the Association’s senior counsel at Field Law has said, “We know our way to the courthouse.”

In the end, Tanner was dealt with in the court of public opinion, which extracted a more severe and immediate penalty than could possibly have been obtained in any court of law — she was forced to resign her candidacy for the UCP in Lethbridge West. Although she made no apology for the offensive content of her video (for that matter, neither did Premier Smith or Minister LaGrange), she still paid the price for her statements. 

And ultimately, that is where the solution lies — ordinary Albertans must stand together with teachers to hold politicians and would-be politicians accountable for their statements and policy through political processes and, ultimately, on May 29, at the ballot box. ❚ 

Questions for consideration in this ­column are welcome. Please address them to Dennis Theobald at dennis.theobald@ata.ab.ca.