Supreme Court of Canada dismisses defamation suit filed by former Chilliwack, B.C., school board trustee

The Supreme Court of Canada (SCC) has sided with a lower B.C. court in dismissing a defamation suit brought in 2018 by a then Chilliwack school board trustee against a former teachers' union leader, who described comments made by the trustee as bigoted, transphobic and hateful.

The ruling ends legal recourse for Barry Neufeld, who had long attracted controversy over his views of how sexual orientation and gender identity is taught in schools during his time as a trustee for School District 33.

The case also provides legal context over how courts must weigh public interest over contentious debates such as those involving SOGI 123 — a resource to teach students about sexual orientation and gender identity, implemented in B.C. in 2016 — against the chilling effect on people being sued for speaking their minds.

Glen Hansman, a teacher and former president of the British Columbia Teachers' Federation, publicly denounced Neufeld's views, which began with a Facebook post where Neufeld said he supported "traditional family values" and that allowing children to "choose to change gender is nothing short of child abuse."

Reaction not 'disproportionate'

Hansman accused Neufeld of undermining safety and inclusivity for transgender and other LGBTQ students in schools.

"Mr. Hansman's words were not a disproportionate or gratuitous response to Mr. Neufeld's statements, and there is a substantial public interest in protecting his counter-speech, " wrote Justice Andromache Karakatsanis in Friday's split 6-1 SCC decision.

The ruling said Hansman spoke out to oppose Neufeld's comments, which he and others perceived to be discriminatory and harmful toward transgender and other LGBTQ youth — "groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity," wrote Karakatsanis.

"Not only does protecting Mr. Hansman's expression preserve free debate on matters of public interest, it also promotes equality, another fundamental democratic value."

Neufeld originally sued Hansman for defamation, alleging Hansman left the public with the impression Neufeld had promoted hatred, committed hate speech and made school unsafe for gay and transgender students.

The lower court threw out the case after an application under the Protection of Public Participation Act, a 2019 law which allows for the dismissal of defamation suits where comments are made in an area of public interest, a valid defence exists, and the harm of going ahead with the case outweighs the harm in stopping it.

The act is known as anti-SLAPP (Strategic Lawsuits Against Public Participation) legislation. 

A lower court judge agreed and ruled the lawsuit had the effect of suppressing debate on matters of public interest. He also determined the value in protecting Hansman's expression outweighed the harm Neufeld likely suffered. 

On appeal, the higher B.C. court disagreed and allowed the defamation suit to continue. B.C.'s Court of Appeal said it was important to ensure that "people who hold contentious opinions on hotly debated topics" do not feel discouraged from defending their reputations when attacked.

Hansman then appealed that ruling to the Supreme Court of Canada, which heard the case in October, at the same time as Neufeld was seeking another term on the Chilliwack school board.

On Friday, six of seven Supreme Court justices agreed the public interest in protecting Hansman's speech outweighed the public interest in remedying any harm to Neufeld's reputation. 

Karakatsanis said Neufeld has suffered limited harm, was able to continue expressing his views and even won re-election over the course of the dispute, before he failed to be re-elected in 2022.

"The closer the expression lies to the core values of [freedom of speech], including truth‑seeking, participation in political decision-making and diversity in the forms of self‑fulfilment and human flourishing, the greater the public interest in protecting it," Karakatsanis wrote.

Dissenting justice

The dissenting justice, Suzanne Côté, said the court wasn't being asked to side with either Neufeld's or Hansman's comments but whether the action should be dismissed at an early stage.

"I conclude that it should not," wrote Côté in the ruling. "In doing so, I am in no way prejudging the merits of Mr. Neufeld's action in defamation; I am strictly finding that he deserves to have his day in court."

Lawyer Paul Jaffe, who represented Neufeld in the case, said Côté's dissent was based on two previous cases involving anti-SLAPP legislation, which he said required the court to not involve itself in underlying debates.

"If that happens the court becomes politicized and loses its impartiality," said Jaffe. "In my view, that's exactly what must not happen."

"This judgment sends a very troubling message that access to the courts will be decided on the basis of what your views may be rather than the merits of a claim."

Defence of a marginalized community

The B.C. Teachers Federation said in a release that the decision is the first from Canada's highest court to consider B.C.'s Protection of Public Participation Act. It said it was also the first to describe the discrimination faced by transgender individuals in Canada.

"I hope this decision makes things easier for anyone speaking in defence of a marginalized community, particularly those speaking in defence of 2SLGBTQ youth and trans people generally, without having to be fearful of retaliatory legal action," said Hansman, who continues to work as an elementary school resource teacher in Vancouver.

The case had nine intervenors, including B.C.'s attorney general, non-profit LGBTQ advocate QMUNITY, the Canadian Human Rights Commission, the Canadian Civil Liberties Association and the Centre for Free Expression.