In Hansman v. Neufeld, the Supreme Court of Canada (SCC) considered a defamation lawsuit involving public statements made by two individuals regarding a government initiative on gender identity and sexual orientation in schools.
Defamation Lawsuit is Followed by Anti-SLAPP Application
The plaintiff, Barry Neufeld, a public school board trustee in British Columbia, criticized the initiative in online posts, calling the curriculum a “propaganda weapon” promoting the “biologically absurd theory” that gender is a social construct and not biologically determined. The defendant, Glenn Hansman, the President of the British Columbia Teacher’s Union, condemned Mr. Neufeld’s statements in various publications and media interviews, labeling them as “bigoted, transphobic and hateful,” and argued that Mr. Neufeld’s comments fostered an unsafe school environment. Mr. Neufeld continued expressing his opinions publicly, prompting further responses from Mr. Hansman.
Mr. Neufeld sued Mr. Hansman for defamation, which led Mr. Hansman to seek the dismissal of the defamation action as a Strategic Lawsuit Against Public Participation (SLAPP) under the Protection of Public Participation Act (PPPA). Section 4 of the PPPA creates a pre-trial screening mechanism that allows a defendant to apply to the Court for an order dismissing any action stemming from expressions on matters of public interest. This requires the defendant to prove that the proceeding arises from expression that relates to a matter of public interest. If the defendant establishes this, then the plaintiff must convince the judge that the action possesses substantial merit and that the defendant lacks a valid defense in the proceeding. If the plaintiff meets their burden, the court is required to undertake a public interest weighing exercise.
Dismissal of Defamation Claim Overturned by British Columbia Court of Appeal
The weighing exercise requires the plaintiff to establish that the harm they are likely to have experienced is of a sufficiently serious nature to outweigh the public interest in safeguarding such expression. The PPPA requires that the plaintiff provide evidence that allows the judge to infer a significant likelihood of harm that surpasses the public interest in safeguarding the defendant’s expression, as well as evidence that allows the judge to draw a connection between the defendant’s expression and the resulting harm to the plaintiff.
In the British Columbia Supreme Court, the Chambers Judge granted Mr. Hansman’s application, finding a valid fair comment defense and that the public interest in protecting Mr. Hansman’s expression outweighed the harm suffered by Mr. Neufeld. Accordingly, Mr. Neufeld’s lawsuit was dismissed. On appeal, the British Columbia Court of Appeal (BCCA) reversed the Chambers Judge’s decision and found that the Chambers Judge made errors in classifying Mr. Hansman’s statements as fair comment. Further, the BCCA held that the Chambers Judge failed to appropriately consider the presumption of damages in defamation cases and the potential negative impact that dismissing Mr. Neufeld’s lawsuit could have on future public discourse.
Supreme Court of Canada Restores Chamber Judge’s Order
In a 6–1 decision, The SCC restored the Chambers Judge’s order dismissing the defamation action. The central issue for the court to consider was the public interest weighing exercise.
The SCC clarified that the harm relevant to the public interest weighing exercise refers to harm caused to the plaintiff by the defendant’s statements, not the plaintiff’s inability to sue. While the BCCA held that the inability to inflict a legal penalty on Mr. Hansman would “chill” Mr. Neufeld’s expression and those of others who wish to express unpopular views, the SCC confirmed that barring potential plaintiffs from silencing their critics and seeking damages through defamation suits does not create a chilling effect. The SCC agreed with the Chambers Judge that Mr. Neufeld provided almost no evidence of damage or harm suffered as a result of Mr. Hansman’s statements.
Certain “Counter-Speech” Protected by Legislation
In considering the other side of the weighing exercise, which requires evaluating the public interest in protecting the defendant’s expression, the SCC acknowledged that not all expressions are created equal. The level of protection varies depending on factors such as the quality of expression, subject matter, motivation, or form through which the statement is expressed. The SCC affirmed that expressions closely aligned with the core values of section 2(b) of the Charter, such as truth-seeking, participation in political decision-making, and diversity in self-fulfillment, have a greater public interest in protecting.
The concept of “counter-speech” was also brought into the SCC’s analysis of the defendant’s expression. The idea of “counter-speech” in the jurisprudence of section 2(b) of the Charter recognizes that the open exchange of ideas is vital for the value of free expression. The SCC stated that counter-speech motivated by the defense of vulnerable or marginalized groups engages the values of section 15(1) of the Charter. Section 15(1) values uphold the equal worth and dignity of every individual. When individuals belonging to marginalized groups face degrading expressions and lack the ability or authority to effectively combat them, the SCC stated that protective counter-speech by advocates becomes even more influential and significant.
The SCC found that Mr. Hansman’s expression was counter-speech motivated by a desire to promote tolerance and respect for a marginalized group in society and that Mr. Hansman’s counter-speech closely aligned with the core values of section 2(b) of the Charter, as his expression served a truth-seeking function, aiming to counter expressions undermining the equal worth and dignity of marginalized groups. As such, the SCC agreed with the Chamber Judge’s conclusion that the public interest in protecting Mr. Hansman’s expression outweighed the public interest in remedying the harm to Mr. Neufeld.
Plaintiffs Must Establish Causal Link Between Harm Suffered and Defendant’s Statements
Lastly, the SCC affirmed that the fair comment defense did not require Mr. Hansman to establish that Mr. Neufeld was bigoted, transphobic, promoted hatred, or created an unsafe environment for students. Rather, it only required that Mr. Hansman have a factual basis for his expression.
This decision clarified the handling of anti-SLAPP applications. The SCC determined that when opposing an anti-SLAPP application, plaintiffs must present evidence of the particular harm they have experienced, along with evidence establishing a causal link between the harm and the defendant’s statements. As well, the SCC reaffirmed the significance of protective counter-speech and how anti-SLAPP legislation effectively safeguards such speech against defamation lawsuits aimed at silencing it.
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