BC Supreme Court denies Proctorio’s application to include new filings in lawsuit against UBC staff member

Proctorio’s application to allow for further cross-examination and to include an additional exhibit and two new affidavits has been denied following Proctorio v. Linkletter’s first day before the BC Supreme Court in late April.

Proctorio, a virtual proctor in digital exams, sued UBC staff member Ian Linkletter last September, alleging that Linkletter had tweeted “confidential” information about the software. Linkletter has been an active critic of Proctorio online.

The UBC Vancouver and Okanagan Senates restricted the use of Proctorio in March after concerns of racial discrimination.

In October, Linkletter filed an anti-Strategic Lawsuit Against Public Participation (SLAPP) under BC’s Protection of Participation Act (PPPA). The UBC staff member’s legal team was intended to argue their case on April 29 and 30, but the hearing was pushed back due to a new application from Proctorio to include additional information and allow for further cross-examination.

Instead, on April 29, Proctorio argued that the new filings and cross-examination should be allowed, while Linkletter’s legal team argued that the new application containing these requests was “without merit” and was simply delaying the anti-SLAPP hearing.

In a judgement released Tuesday morning, the Honourable Madam Justice MacNaughton ruled that Proctorio’s application would be dismissed, but admitted a portion of one of the affidavits from Proctorio legal counsel John Devoy — a five-paragraph section that addresses whether Linkletter agreed to Proctorio’s terms of service.

“In my view, whether Mr. Linkletter agreed to the terms of service is likely to be a significant issue at the hearing of the PPPA application,” MacNaughton wrote in the decision.

MacNaughton denied the request for additional cross-examination of Linkletter, writing that it was not clear “how the additional questions will allow Proctorio to establish greater harm, or greater loss and damage.”

In relation to the issue of private communication brought up in specific, MacNaughton argued that it was “not clear how additional instances of private communication where Mr. Linkletter shared the video links will be relevant to establishing that Mr. Linkletter’s defences are not valid.”

The additional exhibit was denied on the grounds that Linkletter did not “properly identify and authenticate it” in cross-examination. As for the affidavits — save the five-paragraph section — MacNaughton wrote that sections of the affidavits were not relevant to the application at hand and excluding them would not cause “substantial injustice.”

In order to get the lawsuit dismissed, Linkletter’s legal team will have to prove that Linkletter’s tweets were an expression and were in the public interest, under BC’s PPPA.

Proctorio’s legal team will have to prove that the company’s lawsuit has merit, that Linkletter has no valid defence and that “the harm likely to have been or to be suffered by the respondent as a result of the applicant's expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.”

In a statement posted to his GoFundMe, Linkletter wrote that he “couldn’t be happier” with the decision.

“With today’s victory, they have been stopped from trying to expand their lawsuit in order to avoid a dismissal order under [PPPA],” he wrote.

Linkletter also wrote that the Association of Administrative and Professional Staff (AAPS) at UBC had agreed to fund his legal defense.

“Thank you to the AAPS Board of Directors, who voted unanimously to fund my defense going forward. I thank all 5,000+ members of AAPS, many of whom already expressed support, for being a part of this,” he wrote. “This is an immeasurable relief to me and my family.”

The Ubyssey has reached out to Proctorio for comment.

The anti-SLAPP hearing is set for July 26 to 29.