UBC staff member Ian Linkletter will be waiting a few more months to argue that Proctorio’s lawsuit against him should be dismissed.
Exam proctoring service Proctorio sued UBC staff member Ian Linkletter last September, alleging that Linkletter had tweeted “confidential” information about the software. Linkletter’s legal team filed to dismiss the lawsuit in October 2020 under BC’s Protection of Public Participation Act (PPPA), the province’s law intended to protect citizens from Strategic Lawsuits Against Public Participation.
But Linkletter’s hearing has now been delayed for the second time, due to one of Proctorio’s lawyers going on medical leave until early September.
Linkletter’s application was initially supposed to be heard in late April 2021, but was pushed back due to new filings and requests by Proctorio’s legal team. It was then rescheduled for next week, until yesterday.
“We had no choice but to agree to an adjournment until Fall 2021. Health comes first,” Linkletter wrote in an update on his GoFundMe page.
In an interview, Linkletter said Proctorio’s lawyer on medical leave was said to be the lead lawyer for this case, which Linkletter’s team didn’t know. “He didn't talk at the hearing last time, but they say they can’t go forward without him.”
Linkletter said his team has known about the medical leave for over a month, but he said right when that happened, Proctorio got a replacement lawyer to help with the case.
“It wasn’t until last week that they said they couldn’t go forward without him, which was news to us.”
Despite the rescheduling of the hearing again, movement has been happening behind the scenes.
Linkletter wrote in his update that Proctorio notified his team on July 7 that it would be appealing the recent decision to not allow Proctorio to include new filings in its lawsuit to the BC Court of Appeals. He said in an interview that the company was asking for all the orders to be overturned, but didn’t give any details about what in specific it disagreed with.
On July 19, Proctorio applied for a last-minute court order to “adjourn the lawsuit indefinitely” until the appeal could be decided.
Yesterday, a last-minute chambers proceeding in the BC Supreme Court saw a judge hearing Proctorio’s case on the merit of an indefinite adjournment. After the 45-minute meeting the judge denied the adjournment.
“It was interesting because they went back to the BC Supreme Court, saying that it should be adjourned, and so they're essentially asking a justice of the Supreme Court to disagree with the previous justice of the Supreme Court,” Linkletter said. “That’s not something that’s typically done.”
Linkletter said from his knowledge, Proctorio has taken no steps to expedite the appeal — meaning if the judge had said ‘yes,’ the hearing may have been delayed by up to six months.
Proctorio wrote in a statement to The Ubyssey that it was committed to a fair hearing.
"While Proctorio wishes the PPPA Application to be determined and dismissed promptly, it is also important and fundamental to a fair hearing that parties be represented by counsel of their choice and on a full record,” a spokesperson wrote.
“In these circumstances, the adjournment was routine, proper and necessary; once Proctorio’s counsel returns from leave, the matter will be heard consistent with applicable procedure."
The hearing is expected to be rescheduled for late September or October, when Proctorio’s lawyer is back from medical leave.
“The lawsuit itself was groundless, the procedure application was groundless, and now their appeal is groundless,” Linkletter said. “So, I'm just really looking forward to being able to prove that in court at the PPPA hearing.”
UBC used Proctorio throughout the pandemic and only halted its use in March 2021 after concerns of racial discrimination.