Proctorio sued UBC learning technology specialist Ian Linkletter a year ago last week.
Hit with a copyright infringement lawsuit, Linkletter and his legal team at Arvay Finlay LLP quickly filed an anti-Strategic Lawsuit Against Public Participation (SLAPP) application, arguing that Proctorio’s lawsuit was baseless and it was trying to silence Linkletter, an active critic of the virtual proctoring service that UBC used widely until March 2021.
Despite intending to argue his case in the BC Supreme Court on April 29, and then on July 26, Linkletter is still waiting.
First, it was a flurry of new filings about UBC policies that resulted in Linkletter’s and Proctorio’s legal teams arguing about their inclusion instead of the case’s application hearing on April 29 — Proctorio’s requests were mostly denied.
In an affidavit ahead of the April 29 hearing, Linkletter’s legal counsel argued in letters to Proctorio’s legal counsel Tim Pinos that the company was delaying the hearing intentionally.
“It is now apparent that your client is engaged in systematic efforts to prolong these proceedings, and cause our client further delay and expense, and is acting in direct contravention of both the BC Supreme Court Civil Rules and, most importantly, the express provisions and legislative intent of the Protection of Public Participation Act, S.B.C. 2019, c. 3 (‘PPPA’),” Linkletter’s counsel Mark Underhill wrote.
Underhill said the delay in sending the affidavits was “inexplicable.”
Proctorio stated that Underhill’s allegation of “systematic efforts to prolong these proceedings” was incorrect in a statement to The Ubyssey in late August 2021.
“Mr. Underhill is not correct and his suggestion that Proctorio has not acted within the rules is demonstrably untrue. We're [sic] it accurate, then the court would not have permitted Proctorio to do what he claims is against the rules,” a spokesperson from Proctorio wrote in the statement.
“In fact, Mr. Linkletter's counsel consented to the adjournments in both April and July which directly contradicts their allegations of delay. In any event, Mr. Linkletter continues to speak out publicly about and against Proctorio ... undermining the very premise that the purpose of Proctorio's lawsuit was to prevent him from participating in the public debate about exam integrity.”
More delays came when Proctorio attempted to adjourn the July 25 hearing after filing an appeal on that decision, losing, and then saying that a lawyer involved in the case — whom Proctorio said has “primary carriage of the case” — was on medical leave, and the hearing would have to be pushed until the fall.
“He didn't talk at the hearing last time, but they say they can’t go forward without him,” Linkletter told The Ubyssey right after the adjournment. He agreed that health was a fair reason to delay, but questioned the process.
Linkletter told The Ubyssey in July that his team had known about the medical leave for over a month, but he said Proctorio had simply gotten 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,” he said at the time.
Alex Nanoff, a spokesperson for the Canadian Civil Liberties Association said that delay tactics are common in SLAPP cases, but also in the legal system as a whole. Nanoff was not intimately familiar with Proctorio v. Linkletter, but spoke more broadly about SLAPPs.
“Ultimately if X or Y party’s legal team has extenuating circumstances that make it such that the case can be heard appropriately, one can always speculate about the merits of those delays and whether or not someone is using a tactic to drag it out as long as humanly possible. But again that’s getting into the weeds of whether someone’s acting in bad faith or good faith,” he said of delay tactics in this case.
In statements to The Ubyssey over the past year, Proctorio has pushed its desire for a fair and prompt hearing of the application to move to the full lawsuit more quickly if Linkletter’s application is dismissed. In an August statement, Proctorio blamed the delays on Linkletter.
“No,” a spokesperson said in response to a question on whether Proctorio anticipated any further delays to the hearing, “provided Mr. Linkletter does not take any further steps to limit Proctorio's rightful access to relevant information that bears directly on the issues in this case.”
“Each of the adjournments referenced by Mr. Underhill were the direct result of actions taken by Mr. Linkletter; had Mr. Linkletter simply provided the information that is required and to which Proctorio is entitled, the hearing would have taken place already.”
Funding Linkletter’s defence
Throughout the last year, one key issue in this case has been affordability — Linkletter has drawn out of his personal savings to pay to fight Proctorio’s lawsuit, until the Association of Administrative and Professional Staff (AAPS) reached out to Linkletter in July and agreed to pay his legal expenses.
Joey Hansen, executive director of AAPS, said there was an issue brought up in the Proctorio v. Linkletter proceedings that AAPS believed had the potential to impact the working conditions of its members as a whole.
Linkletter’s legal counsel, Arvay Finlay LLP, is the legal counsel AAPS would normally use in a situation like this, and AAPS felt it would be more “economical” to simply pay Linkletter’s legal fees and ask his legal counsel to “not assert anything that’s contrary to [AAPS’s] position around the collective agreement or AAPS’s members rights as employees.”
Hansen said AAPS hasn’t often participated on the defence side of cases like this but has assisted members in other lawsuits, such as filing human rights complaints. Hansen emphasized that AAPS is not involved in the case beyond funding it.
“There’s no one in our office actively managing this file,” he said. “At this point we’re going to fund things, but we're not an active participant in Ian’s defence.”
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