Controversial Chilliwack school trustee Barry Neufeld’s defamation case against former B.C. Teachers’ Federation (BCTF) president Glen Hansman made it all the way to the Supreme Court of Canada (SCC) on Tuesday.
The SCC justices now have to decide whether Neufeld’s lawsuit should go ahead, or whether Hansman’s statements about Neufeld amount to fair comment and/or whether the harm Neufeld suffered outweighs the public interest in free speech.
The case goes back five years, when Neufeld put out a lengthy anti-LGBTQ social media post about the provincial government’s Sexual Orientation and Gender Identity (SOGI) anti-bullying program.
He posted that “the BC Ministry of Education has embraced the LGBTQ lobby and is forcing this biologically absurd theory on children in our schools,” a reference to gender identity.
He ended the post by saying increasing numbers of children are growing up in homes with same sex parents and “if this represents the values of Canadian society, count me out! I belong in a country like Russia, or Paraguay, which recently had the guts to stand up to these radical cultural nihilists.”
In the weeks and months that followed, Neufeld faced a backlash from various organizations and individuals. One of his critics, then BCTF president Hansman, called Neufeld transphobic, said he should be removed from public office, and not be allowed anywhere near students.
Neufeld launched a defamation lawsuit against Hansman in October 2018. In response, Hansman filed his own suit through the Protection of Public Participation Act (PPPA) – so-called anti-SLAPP legislation – arguing that since Neufeld is a public figure, he was open to being criticized without threat of defamation.
PPPA is designed to eliminate frivolous lawsuits by public figures and allowing free speech and rigorous debate on issues of public interest.
In November 2019, a judge sided with Hansman and dismissed the lawsuit finding the interest in public debate outweighed the interest in continuing with the lawsuit.
Neufeld appealed, and in June 2021, the B.C. Court of Appeal sided with Neufeld, finding the original decision erred in assessing whether or not there was a likely a valid defence of fair comment.
READ MORE: Chilliwack ‘fair comment’ case dismissed by judge
READ MORE: Neufeld wins appeal for freedom of expression in defamation case
Then in January 2022, Hansman asked the SCC to reinstate the dismissal of the original lawsuit. That hearing was held Tuesday and livestreamed online.
Supreme Court of Canada hearing Oct. 11, 2022
Acting on behalf of Hansman, lawyer Robyn Trask introduced the case by saying that Neufeld could have brought his concerns with SOGI up with the school board.
“Instead, Mr. Neufeld made broad and inflammatory statements at public meetings and online,” she said. “When confronted, he continued to make inflammatory statements.”
She said Neufeld’s lawsuit is precisely the type of claim intended by the architects of the PPPA.
“What is really going is an attempt by Mr. Neufeld to silence Mr. Hansman.”
Trask told the SCC that Neufeld purported to be critical of SOGI and its creators in his comments, but in fact he was engaged in a much deeper attack on the LGBTQ community, including trans youth in schools.
One of the justices asked Trask if it was the case that “there is more than the curriculum at stake” when Neufeld denied the existence of trans people and disparaged same sex parents.
Trask agreed, suggesting that Hansman “was responding to a vulnerable group in society and a vulnerable group in schools.”
She pointed to a meme Neufeld posted supposedly comparing 1997 to 2017. In the 1997 image a father is telling his son he can’t get his ear pierced, and in 2017 a mother consoling her son who says “I think I’m supposed to be a girl,” and then saying “OK, sweetie. We’ll start hormone treatment immediately!”
“These type of statements acted to dehumanize transgendered people,” Trask told the high court.
On the issue of weighing free speech and harm, Hansman’s lawyers argued there was no evidence of actual harm since Neufeld was re-elected after Hansman made the statements.
In Neufeld’s defence, lawyer Paul Jaffe mainly argued that most of what was at stake should be a matter for a defamation trial rather than the screening process and the PPPA.
“He has a valid defamation claim, let it go to trial,” Jaffe said. “That’s where we can intelligently scrutinize some of these issues that have arised here. All of this can come out at trial.”
Jaffe said the PPPA was being used as a political tool, and he said for Neufeld this case is “a hill to die on”
One judge asked Jaffe, “(Neufeld) says children of same sex parents don’t represent Canadian society. How is that not homophobic?”
“He’s not trying to kick them out of schools,” Jaffe responded.
“No, he’s just saying they are not part of society,” was the response.
Lawyers for various intervenors on behalf of Hansman gave five-minute presentations to the high court after Trask and Jaffe. Among those intervening on behalf of Hansman included several LGBTQ organizations including Egale Canada, there was also the Attorney General of B.C., the Canadian Human Rights Commission, the Centre for Free Expression, and the Canadian Civil Liberties Association.
The high court dismissed applications to intervene on behalf of Neufeld by the Calgary-based Justice Centre for Constitutional Freedoms and Karin Litzcke, a People’s Party of Canada candidate from the Vancouver area.
The SCC will issue its decision at a later date.
Timeline:
October 2018 – Chilliwack Board of Education trustee Barry Neufeld files civil defamation suit against Glen Hansman who was then the president of the B.C. Teachers Federation. Hansman responded by filing a counter suit through the Protection of Public Participation Act (PPPA)
November 2019 – B.C. Supreme Court Justice Alan Ross dismisses Neufeld’s lawsuit citing the PPPA
November 2020 – The B.C. Court of Appeal hears Neufeld’s appeal of the lower court’s dismissal
June 9, 2021 – The B.C. Court of Appeal accepts the appeal, ordering the defamation lawsuit to continue.
January 12, 2022 – The Supreme Court of Canada agrees to hear Hansman’s appeal of the B.C. Court of Appeal decision.
October 11, 2022 – SCC hearing held.
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