December 19, 2019
Lyncaster v Metro Vancouver Kink Society 2019 BCSC 2207
The plaintiff, Seann Lyncaster, is a long standing member of the bondage and discipline, submission and masochism community (also known as the “BDSM” or “kink” community) in the Lower Mainland area of Vancouver.
One of the defendants, Metro Vancouver Kink Society, is a society whose purposes include educating and advocating for members of the Vancouver kink community. MVKS regularly hosts a variety of educational and social events for its members and for members of the broader kink community.
Mr. Lyncaster claims in defamation against both the MVKS and its individual directors in respect of an open letter published on or about July 12, 2017, statements made at a town hall meeting of the MVKS on August 4, 2017 and the subsequent publication of minutes of the town hall meeting on September 5, 2017.
The Open Letter was addressed to a pseudonym used by Mr. Lyncaster, Lord Braven, and was published on internet sites commonly accessed by members of the Vancouver kink community. The Open Letter included statements that Lord Braven (Mr. Lyncaster) had invited a minor to attend at his home for a BDSM-related discussion, had abused vulnerable young women, and had performed BDSM acts without the consent of his partners.
The statements made at the August 2017 town hall meeting, amongst other things, outlined concerns of the MVKS regarding potential predatory sexual conduct and potential legal exposure resulting from Mr. Lyncaster inviting a minor to have a BDSM-related discussion. The Open letter was read at this meeting.
Mr. Lyncaster claims that the Open Letter and the statements made at the town hall meeting and later published constitute defamatory statements. He seeks damages and injunctive relief against the MVKS and its directors.
For the purposes of this application, the defendants concede that the statements at issue, the Open Letter and later statements, constitute expressions made by them.
The Open Letter, which purports to have been sent on behalf of the MVKS board of directors, begins by advising Lord Braven (Mr. Lyncaster) that MVKS is terminating its “professional relationship” with him. The reasons cited for this termination were the recent allegations of misconduct made against him, his refusal to accept accountability for the conduct alleged, and his “pattern” of denying the allegations. In the letter MVKS states that it will no longer work with him or recommend him in any professional capacity as a result of the recent allegations made against him and a pattern of past bad behavior and that it would no longer work with him or recommend him in any professional capacity.
Reading the entirety of the Open Letter and the communications which followed, it is clear to me that the comments made largely concern allegations of improper conduct on the part of Mr. Lyncaster in the context of a public announcement explaining the decision of MVKS to terminate any further engagement with him. Issues of consent boundaries and safe interactions between members of the Vancouver kink community concern the welfare of community members, that is, their safety and health, and therefore would be of substantial concern.
In summary, I find that the defendants have satisfied their onus to show that the expressions within the Open Letter, and made later at and after the town hall meeting, concern matters of public interest. The onus now shifts to Mr. Lyncaster to satisfy the merits-based hurdle.
I find that a reasonable trier of fact could conclude that the requirements for proof of a defamation claim set out in Grant have been met and therefore, that Mr. Lyncaster’s claims have substantial merit. Therefore, he has satisfied the requirement under s. 4(2)(a)(i) of the PPPA.
Although the defendants have pleaded three defences to Mr. Lyncaster’s defamation claim – qualified privilege, fair comment and responsible communication on a matter of public interest – they only rely on the defence of qualified privilege for this purposes of this application.
Based on the evidence in the motion record before me, it is arguable that the defendants had an interest in, or a duty regarding, the publishing of the Open Letter and the statements which followed at the town hall meeting. I find this given MVKS’s educating and advocating for members of the Vancouver kink community and its involvement in organizing social events for its members and for members of the broader kink community. I find that a reasonable judge could likely find that this aspect of the test for a defence of qualified privilege is made out.
Even where an interest or duty to publish a defamatory statement is found a defence of qualified privilege may be defeated if the communication is published to an excessively wide field.
By publishing to the world at large at the town hall and in print on-line the defendants may be unable to establish the required reciprocity necessary to engage the defence of qualified privilege: see Ferreira v. Da Costa, 2019 ONSC 1853 at para. 42. In my view, a reasonable judge could find that the Open Letter and the meeting minutes were published, unnecessarily, “to the world” and therefore that the defence of qualified privilege would not succeed.
…I find that Mr. Lyncaster has met his onus of proving that a reasonable judge could conclude that the defence of qualified privilege would not succeed.
In summary, I am satisfied that Mr. Lyncaster has demonstrated that the harm likely suffered by him as a result of the publication of the Open Letter, and the relevant communications that followed, is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expressions.