Education Law

Supreme Court of Canada rules on use of BC’s anti-SLAPP legislation to dismiss a defamation claim made in response to Transphobic Comments

In Hansman v. Neufeld, 2023 SCC 14, the Supreme Court of Canada decided that a defamation lawsuit brought by a school trustee against a former teachers’ union president about BC’s efforts to combat discrimination against transgender and other 2SLGBTQ+ youth should not proceed.

In 2016, after the BC Human Rights Code was amended, the BC Ministry of Education directed school boards to add “gender identity or expression” as a prohibited ground of discrimination in their student codes of conduct. The Ministry also worked with others, including the BC Teachers’ Federation (“BCTF”), to develop an initiative to guide teachers’ instruction on sexual orientation and gender identity in an effort to encourage inclusion and respect for students who might otherwise face discrimination due to their identity or expression.

Barry Neufeld, a school trustee in Chilliwack published social media posts criticizing the government’s initiative. He described it as a “weapon of propaganda” that teaches the “biologically absurd theory” that “gender is not biologically determined, but is a social construct”. His posts garnered significant controversy, spurring protests and calls from him to resign. Many considered his comments to be derogatory of transgender and other 2SLGBTQ+ individuals.

Glen Hansman, a gay man, teacher, and former president of the BCTF called Neufeld’s views bigoted, transphobic and hateful. Hansman accused Neufeld of undermining safety and inclusivity for transgender and 2SLGBTQ+ students and questioned his suitability as an elected trustee. In response, Neufeld sued Hansman for defaming him. Hansman then applied to have Neufeld’s defamation action dismissed as a strategic lawsuit against public participation (“SLAPP”) under section 4 of BC’s Protection of Public Participation Act.

At trial, Hansman successfully moved to have Neufeld’s claim dismissed as a SLAPP under the Protection of Public Participation Act, which permits a judge to dismiss a defamation claim unless the plaintiff can satisfy the judge that (i) their action has substantial merit, (ii) the defendant has no valid defence and (iii) the harm to the plaintiff as a result of the defendant’s expression outweighs the public interest in protecting that expression. The judge agreed that Hansman had a valid defence of fair comment and that the value in protecting his expression outweighed any harm to Neufeld.

On appeal, the BC Court of Appeal reinstated the defamation proceeding. It reasoned that the trial judge erred by assessing there was likely a valid defence of fair comment and in weighing the competing public interests. It also said the trial judge failed to consider the chilling effect Hansman’s remarks could have on public discourse.

The Supreme Court of Canada restored the original order dismissing the defamation action. Karakatsanis noted, for the majority, that Hansman had a right to respond to Neufeld the way he chose to without the threat of civil liability. The trial judge was entitled to dismiss the action on the basis that Hansman had a defence of fair comment. Further, the public interest protecting Hansman’s expression was not outweighed by the limited harm to Neufeld. Instead, Hansman’s counterspeech was valuable in that it preserved free debate on matters of public interest and promoted equality. The trial judge’s order was restored.

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