Executive Summary: Key Legal and Evidentiary Issues

• Practising Victoria lawyer James Heller alleges the Law Society of British Columbia defamed him through a September 10, 2024 press release that he claims imputed he was a racist.

• The plaintiff applied to strike the Law Society's Response to Civil Claim under Rule 9-5(1)(a) for disclosing no reasonable defence, and alternatively under Rule 9-5(1)(b), (c) and (d) as unnecessary, scandalous, frivolous, vexatious, prejudicial, and an abuse of process.

• Defences of fair comment, qualified privilege, and responsible communication were pleaded by the Law Society and found by the Court to be supported by sufficient material facts capable of proceeding to trial.

• Whether R. v. Dick, 2024 BCCA 272 conclusively determined the appropriateness of the word "potential" in relation to unmarked burial sites was contested, with the Court finding it arguable that Dick made no such factual determination.

• Allegations of malice and the significance of the Law Society's refusal to apologize were deemed matters to be determined at trial, not on a pleadings motion.

• The Court dismissed the plaintiff's application but directed the Law Society to amend specific paragraphs in its Response to delete the word "offensive" as needlessly inflammatory.

The dispute and its origins

The case of Heller v. Law Society of British Columbia, 2026 BCSC 431, was heard before the Honourable Justice Chan in the Supreme Court of British Columbia. The plaintiff, James Heller, is a practising lawyer in Victoria. He alleges the Law Society of British Columbia defamed him by the issuance of a press release on September 10, 2024. Mr. Heller filed a notice of civil claim on February 4, 2025, alleging defamation, negligence and intentional infliction of mental and/or emotional distress. The Law Society filed a response to civil claim on March 10, 2025.
The dispute began when Mr. Heller sent an email to the Law Society on July 26, 2024, raising what he viewed as inaccuracies in the Indigenous Intercultural Course ("IIC") materials on the subject of unmarked graves at the former Kamloops residential school site. Lawyers in British Columbia are required to complete the IIC. Mr. Heller sent follow-up emails on August 1 and 9, 2024.

The resolution and the press release

On August 19, 2024, Mr. Heller along with another lawyer, Mark Berry, submitted a resolution to be considered at the Law Society's upcoming annual general meeting to be held on September 24, 2024. The Resolution proposed that the Law Society correct its statements in the Indigenous Training by replacing "discovery of an unmarked burial site containing the bodies of 215 children on the former Kamloops Indian Residential School grounds" with "discovery of a potentially unmarked burial site on the former Kamloops Indian Residential School grounds." The Resolution also proposed that the phrase "the discovery confirms what survivors have been saying all along" be deleted. The Resolution was published on the Law Society's website on August 23, 2024, along with a statement from the Law Society setting out that "Clarification regarding 'potential burial sites' will be addressed in the next edit."
On September 9, 2024, the B.C. First Nations Justice Council ("BCFNJC") posted a statement on its own website strongly opposing the Resolution, calling it in the title a "Racist Resolution." On September 10, 2024, the Law Society issued a press release on the Resolution, which included a link to the statement of the BCFNJC. The press release stated in its last paragraph: "The resolution submitted by Mr. Heller and Mr. Berry only highlights the need for the IIC and confirms much work remains to be done to increase knowledge and understanding, continue our efforts of advancing meaningful reconciliation with Indigenous people, and eliminate racism in our profession." Mr. Heller alleges the press release was defamatory by imputing he was a racist. The Resolution did not pass.

The claims and the response

Mr. Heller, starting in October 2024 through counsel, requested the press release be removed from the Law Society website and an apology be issued. He started this action in February 2025. The Law Society did remove the press release in August 2025, and the course materials were amended in August 2025.
In his Notice of Civil Claim, Mr. Heller set out that a passage in the IIC course materials is inaccurate as "there has been no confirmation of actual unmarked burial sites on the former Kamloops Indian Residential School grounds." He pleaded the decision of R. v. Dick, 2024 BCCA 272, for the proposition that the appropriate terminology was "potential" burial sites. Mr. Heller further pleaded that the press release "contained further accusations of unethical practice, denialism, racism, insensitivity to experiences of indigenous peoples and resistance to meaningful reconciliation" and that he "suffered shock, embarrassment, anxiety, fear and a sense of betrayal that his own professional governing body responsible for ethical standards in the legal community would collaborate with an activist group in advancing such a dishonest and damaging attack."
In its Response, the Law Society pleaded the IIC course materials were accurate when read in context against the historical background. It denied the press release was defamatory. If the press release was found defamatory, the Law Society pleaded qualified privilege, fair comment and responsible communication. It further pleaded Mr. Heller has suffered no damages or has failed to mitigate his damages. The Law Society set out background including the Truth and Reconciliation Commission's "Missing Children and Unmarked Burials Project," statements of the Tk'emlúps te Secwépemc Nation, findings of Dr. Sarah Beaulieu with respect to ground-penetrating radar, an article by Dr. Scott Hamilton, and a joint statement from the Canadian Archaeological Association on residential school denialism.

The plaintiff's application to strike

Mr. Heller brought an application to strike the Response pursuant to Rule 9-5(1)(a) of the Supreme Court Civil Rules, arguing it raises no reasonable defence. In the alternative, he argued it should be struck pursuant to Rule 9-5(1)(b), (c) and (d) as unnecessary, scandalous, frivolous or vexatious; that it would prejudice, embarrass or delay a fair trial; and that it is an abuse of process. In the further alternative, Mr. Heller argued the Response should be struck pursuant to Rule 22-7(2)(d) as the Law Society has not complied with the Rules with respect to the drafting of pleadings and the discovery of documents.
Mr. Heller's arguments under Rule 9-5(1)(b), (c) and (d) were grouped by the Court into three areas. First, he argued the Response contained gratuitous smears, noting he was referred to as "offensive" at various paragraphs and that the Response attacked his competence as a lawyer. Second, he argued the Response was ideologically driven and filed for a collateral purpose to advance social justice issues. Third, he argued the Court of Appeal in Dick had already decided the use of the word "potential" in relation to unmarked burial sites is appropriate, meaning the Response was an abuse of process contrary to the principles of judicial economy and finality. Mr. Heller also argued the defences could be defeated by a finding of malice and pointed to the Law Society's refusal to apologize.

The Court's analysis and ruling

On the Rule 9-5(1)(a) application, the Court applied the well-established test of whether, assuming the truth of the pleaded facts, it is plain and obvious that the Response discloses no reasonable defence. Justice Chan found the Law Society's pleaded defences were not so plainly and obviously deficient that its Response should be struck. The Law Society had pleaded facts capable of supporting a defence of fair comment, as the background of the Resolution and the historical context could prove the subject matter was of public interest. The pleaded facts were also capable of supporting qualified privilege, as the Law Society is the provincial regulator of the legal profession and the recipients of the press release included members of the bar. Similarly, the facts were capable of supporting responsible communication.
Under Rule 9-5(1)(b), (c) and (d), the Court found no basis to strike the Response. Justice Chan held the historical information pleaded by the Law Society was relevant to give context to the Resolution and the press release, as both must be interpreted against the background of the known information on the subject. The Court found the Response was not prolix or confusing and would not prejudice, embarrass or delay a fair trial. On the Dick argument, the Court agreed with the Law Society that it is arguable Dick does not hold what Mr. Heller claims, as Dick was a sentence appeal on the ground of apprehension of bias of the sentencing judge, not a case which made any factual determinations of the existence of unmarked burial sites. The Court also found no evidence that the Response was filed for a collateral purpose to advance an ideological stance, noting the Law Society had a right to defend itself. Regarding malice, the Court held it could not make any determination on a pleadings motion and that this would have to be determined at trial.
However, Justice Chan did find the use of the word "offensive" to describe the plaintiff to be inappropriate, stating it was needlessly inflammatory and went beyond disagreement with another's viewpoint. The Court also reviewed the notice to admit and found the Law Society's response was not evasive or obstructionist.
The application of the plaintiff to strike the defendant's Response and for an order that it produce a further list of documents and an affidavit verifying documents was dismissed. The Law Society was directed to amend the passages in the Response at paragraphs 81, 83(c), and 101 to delete "offensive" and rewrite with a more appropriate word. No specific monetary amount was awarded or determined in this decision, as the underlying defamation claim remains to proceed to trial.