The three justices on the B.C. Court of Appeal need to weigh whether or not “fair comment” is a good enough defence for defamatory comments made by former B.C. Teachers Federation (BCTF) president Glen Hansman about Chilliwack School Board trustee Barry Neufeld.
Neufeld’s appeal of his defamation lawsuit dismissal wrapped up Thursday after a day and a half of submissions by Neufeld’s lawyer Paul Jaffe and Hansman’s lawyer Robyn Trask. The hearing was held over videoconferencing.
In 2018, Neufeld filed a civil lawsuit against Hansman for comments for 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 is highly critical of 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.”
This was the first time the anti-SLAPP legislation has been used in court.
Neufeld’s affidavit was just three paragraphs long. The second paragraphs said only: “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.
READ MORE: Anti-SOGI school trustee files defamation lawsuit against BCTF president
READ MORE: Chilliwack ‘fair comment’ case dismissed by judge
At one point in the proceedings Thursday (Nov. 26), Justice Peter Willcocks articulated the compelling dilemma facing the court in this case, namely, defamation is a break in freedom of expression but does that mean the fair comment unfairly means a public figure can be defamed?
“Is the cost of participating in this debate, that [Neufeld] can be defamed?” Willcocks pondered in interrupting Trask. “We have to weigh that interest as part of the balancing exercise.… There is not just one side to the freedom of expression in this case.”
Trask responded that she did not mean to say that specifically, “but my friend indicated that it was his client’s freedom of expression that was at issue, but this is a defamation suit against my client.”
Trask also 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. “I also want to be clear that his comments do not need to be reasonable and proportionate, that is addressed in the Simpson decision.”
A day prior, Neufeld’s lawyer argued, in part, that BC Supreme Court Justice who tossed out the original lawsuit “has turned the SLAPP act on its head. He’s preventing 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.”
At the end of the hearing on Nov. 26, the Justices reserved their decision, which means they will render that decision at a date in the future.
READ MORE: BC Court of Appeal hearing Barry Neufeld’s arguments why defamation suit should go ahead
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