A defamation lawsuit brought by a B.C. school trustee against the former president of the province’s teachers union is going ahead after the provincial Court of Appeal said a dismissal of the action could have a “potential chilling effect” on future expression in matters of public interest.
Barry Neufeld, a trustee with the Chilliwack Board of Education, made negative comments about the way a provincial program designed to teach children about sexual orientation and gender identity was being implemented in schools, writing on Facebook that the program’s teaching that gender is a social construct was “biologically absurd.” In response, then-B.C. Teachers’ Federation president Glen Hansman said Neufeld’s comments “tiptoed quite far into hate speech” and the trustee was creating a school environment which was both discriminatory and hateful.
But Justice Lauri Ann Fenlon, writing for a unanimous Court of Appeal, ruled the lower court erred in its interpretation and application of the PPPA. She wrote Neufeld’s claim deserves a trial on its merits and should not have been summarily screened out at such an early stage and the lower court judge failed to consider the “potential chilling effect” on future expression in matters of public interest by dismissing the case (Neufeld v. Hansman 2021 BCCA 222).
“The risk of being tarred with negative labels (and corresponding self-censorship) is most pronounced for people who hold contentious opinions on hotly debated topics,” she wrote. “Defamatory comments that accuse someone of committing hate speech can inflict serious reputational harm. The judge’s error was in failing to consider the collateral effect that preventing Mr. Neufeld from defending himself from such serious accusations could have on other individual’s [sic] willingness to express themselves on issues of public interest in future.”
As part of his case, Neufeld brought up 11 specific publications in which Hansman allegedly made defamatory remarks. Justice Fenlon wrote that the defence of fair comment must be considered for each of them.
“In my view, the [lower court] judge’s failure to consider the specific expressions led him to overlook the constituent elements of the fair comment defence as applied to each expression,” she wrote. “The comment must also explicitly or implicitly indicate, at least in general terms, the facts on which the comment is based. The facts must be sufficiently stated or otherwise known to listeners so that they are able to make up their own minds on the merit of the comments and opinions expressed.”
Paul Jaffe, who represented Neufeld, said his client anticipated a hostile response and “sure enough that happened,” subject not only to Hansman’s comments but also human rights complaints and “a campaign of vilification to have him de-platformed.” And by using the anti-SLAPP legislation against his client, Jaffe said Hansman was using it to achieve the very purpose it was designed to prevent.
“It is a pretty onerous task for plaintiffs in defamation actions to get to court, and the legislation is supposed to be a screening device to weed out cases which are unmeritorious or are being used to punish critics,” he said. “And it is absolutely laughable to suggest a solitary school trustee in Chilliwack constitutes a threat to the freedom of expression of the president of one of the most powerful public sector unions around.”
Howard Winkler of Winkler Dispute Resolution, who was not involved in the case, said anti-SLAPP legislation was originally intended to be a summary screening process “and it has become anything but.”
“I fear the legislation is losing its effectiveness, and this decision is one example of the kind of rigour the courts seem to be requiring of motion judges, which is going to make the cost of bringing these motions prohibitive,” he said. “When you are asking a motion judge to make a summary decision in an early stage of a proceeding and then you put it under the microscope of the complexities of the law of defamation, many of these decisions are ripe for appeal.”
Neufeld’s action is a “big freedom of expression issue,” said Jaffe.
“It is in the context of a defamation claim, but if you don’t recognize the importance of defamation law in protecting free speech then you’ve got a problem,” he said. “And the judge below saw it as a contest between defamation law and free speech and failed to recognize that defamation law protects free speech.”
Jaffe said he is trying to set a trial date for February next year. Counsel for Glen Hansman did not respond to a request for comment.
The Judge failed to consider ‘chilling effect’ of dismissing defamation case, B.C. Court of Appeal says was published by The Lawyer’s Daily on June 25, 2021.