Chilliwack school board trustee Barry Neufeld has won his appeal against a court decision dismissing his defamation lawsuit against former B.C. Teachers’ Federation president Glen Hansman.
In a written decision posted Wednesday morning, the Court of Appeal for B.C. found that the judge who dismissed Neufeld’s claim under the Protection of Public Participation Act erred in assessing whether there was likely a valid defence of fair comment.
The three justices relied in part on a 2013 academic law paper that pointed out how fragile freedom is because those who seek its protection are often those who are least sympathetic, those whose views are “offensive, confrontational, and even abusive.”
“[T]ransgressions that are merely offensive must be tolerated and addressed by other means,” Prof. Jamie Cameron wrote as quoted by the appeals court decision.
“Defamatory comments that accuse someone of committing hate speech can inflict serious reputational harm,” Justice Lauri Ann Fenlon wrote in the decision. “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 willingness to express themselves on issues of public interest in future.”
In 2018, Neufeld filed a civil lawsuit against Hansman for comments the former BCTF president made about the trustee in 2017 in the debate about anti-bullying gender identity materials used in schools in B.C., SOGI-123.
Neufeld has been vocal in his staunch opposition to SOGI, criticism that has been labelled anti-LGBTQ and homophobic by many people, Hansman included.
BC Supreme Justice Alan Ross tossed out the defamation suit in 2019 following anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation, also saying it had no reasonable prospect of success, and calling Neufeld’s submissions “skeletal at best.”
READ MORE: Chilliwack ‘fair comment’ case dismissed by judge
READ MORE: BC Court of Appeal left to walk tightrope of freedom of expression in Neufeld-Hansman case
This was the first time the anti-SLAPP legislation has been used in court.
Neufeld’s affidavit in that court hearing was just three paragraphs long. The second paragraph said: “That, the public portrayal of me as a hateful, intolerant, homophobic, religious bigot and a threat to the safety of children commenced with the defendant’s statement on October 24, 2017 as I have pleaded herein.”
Neufeld then appealed the dismissal, that hearing was held Nov. 25 and 26, 2020.
Hansman’s lawyer Robyn Trask relied on the landmark Supreme Court of Canada case involving radio broadcaster Rafe Mair. In the 2008 decision, WIC Radio Ltd. v Simpson, the case addressed Mair’s on-air comments about Kari Simpson, a socially conservative activist with Culture Guard. Mair said Simpson was encouraging violence, and he compared her to Adolf Hitler, the Ku Klux Klan and skinheads.
In 2006, the BC Court of Appeal found that Mair did defame Simpson and that fair comment could not be relied upon. The Supreme Court similarly agreed about the defamation, but allowed Mair’s appeal, essentially rewriting the law, stating that the old test for defamation could no longer be used.
“With respect to fair comment, we say Mr. Hansman’s comments were a reasonable and proportionate response [to Neufeld’s comments about the LGBTQ community],” Trask said.
Neufeld’s lawyer argued that tossing out the lawsuit prevented “Neufeld from having a day in court for a libel claim for the benefit of a party [Hansman] that has used libel to shut down debate.”
That hearing was held Nov. 26, 2020, with the decision reserved until Wednesday (June 8, 2021).
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