May 19, 2023 – Supreme Court of Canada
The Supreme Court restores a B.C. court’s dismissal of a defamation suit.
This case focuses on a defamation lawsuit after a public debate around an initiative to equip educators with resources to teach students about sexual orientation and gender identity. In 2016, British Columbia’s Ministry of Education launched “Sexual Orientation and Gender Identity 123” (SOGI 123). The aim of SOGI 123 is to foster inclusion and respect for students who may face discrimination in school because of their gender identity or expression. Mr. Barry Neufeld, an elected public school board trustee in Chilliwack, B.C., publicly criticized the initiative in online posts, which triggered significant controversy including calls for him to resign. Many people in the community considered his statements derogatory of transgender and other 2SLGBTQ+ individuals. Mr. Glen Hansman, a gay man, teacher and former president of the British Columbia Teachers’ Federation, publicly denounced Mr. Neufeld’s views, including to the news media, calling them bigoted, transphobic and hateful. He accused him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools, and questioned whether he should remain a school board trustee.
Mr. Neufeld sued Mr. Hansman for defamation. In response, Mr. Hansman asked the court to dismiss the lawsuit under the province’s Protection of Public Participation Act (the Act). He argued that Mr. Neufeld had launched a “strategic lawsuit against public participation” (SLAPP). Rather than compensating the plaintiff for serious harm to their reputation, the goal of this kind of legal action is to silence the defendant and suppress debate on matters of public interest. The Act aims to counter SLAPPs. When a court determines that protecting free debate on matters of public interest outweighs harm to the plaintiff, section 4 of the Act instructs it to dismiss this type of lawsuit.
The first instance judge dismissed Mr. Neufeld’s defamation lawsuit, finding that it had the effect of suppressing debate on matters of public interest. He determined the value in protecting Mr. Hansman’s expression outweighed the harm Mr. Neufeld likely suffered. The Court of Appeal disagreed and allowed the defamation suit to continue. Mr. Hansman appealed to this Court.
The Supreme Court has allowed the appeal.
The first instance judge correctly dismissed Mr. Neufeld’s defamation suit.
Writing for the majority, Justice Karakatsanis restored the first judge’s order dismissing Mr. Neufeld’s defamation suit. She decided the public interest in protecting Mr. Hansman’s speech outweighed the public interest in remedying the reputational harm to Mr. Neufeld. She agreed with the judge that Mr. Neufeld had suffered limited harm, as he continued to express his views despite the public reaction and won re-election a year later.
As for Mr. Hansman, he spoke out to counter what he and others perceived to be discriminatory and harmful speech against transgender and other 2SLGBTQ+ youth, “groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity”. His response to Mr. Neufeld’s statements was neither disproportionate nor gratuitous.
As Justice Karakatsanis explained, “[t]he closer the expression lies to the core values of [freedom of expression], including truth-seeking, participating in political decision-making and diversity in the forms of self-fulfillment and human flourishing, ‘the greater the public interest in protecting it’”. She concluded Mr. Hansman’s speech aligned with these values.
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