A Chilliwack, B.C., school trustee who drew harsh criticism for his outspoken opposition to provincial plans to teach children about gender identity has won a battle to continue a defamation lawsuit against the former head of the B.C. Teachers' Federation.
In a case that represents an ongoing test of a law meant to prevent the courts from being used to stifle free speech, B.C.'s Court of Appeal said it was important to ensure that "people who hold contentious opinions on hotly debated topics" do not feel discouraged from defending their reputations when attacked.
Barry Neufeld sued former BCTF president Glen Hansman in 2018 over a series of comments Neufeld made criticizing the B.C. Ministry of Education's Sexual Orientation and Gender Identity program.
The initial B.C. Supreme Court claim alleged that Hansman left the public with the impression Neufeld had promoted hatred, committed hate speech and made school unsafe for gay and transgender students.
The lower court threw the case out after an application under the Protection of Public Participation Act, a 2019 law which allows for the dismissal of defamation suits where comments are made in an area of public interest, a valid defence exists and the harm of going ahead with the case outweighs the harm in stopping it.
'Potential chilling effect on future expression'
The appeal court found that the judge who made the decision was mistaken on all three counts.
Justice Lauri Ann Fenlon — the author of the unanimous ruling — said the judge did not consider "the potential chilling effect" on others who want to engage in controversial debates.
"Defamatory comments that accuse someone of committing hate speech can inflict serious reputational harm," Fenlon wrote.
"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."
The controversy began with a Facebook post in which Neufeld said that "at the risk of being labelled a bigoted homophobe" he supported "traditional family values" and that allowing children to "choose to change gender is nothing short of child abuse."
He later issued a news release apologizing to "those who felt hurt by my opinion" and saying he believes "in inclusion and a safe learning environment for all of our students."
According to the decision, Hansman reacted immediately and the two men continued to spar over the issue over the following months.
The Appeal Court ruling cites 2018 interviews in which Hansman said Neufeld was creating a "discriminatory and hateful school environment" and "had tiptoed quite far into hate speech."
Parallels to 'shock jock' case dismissed
In dismissing the case, the lower court judge drew heavily on another well-known B.C. defamation case in which Christian activist Kari Simpson sued the late legendary local broadcaster Rafe Mair for comparing her to Hitler, the Ku Klux Klan and skinheads.
In that case, the Supreme Court of Canada concluded that Mair, who died in 2017, was saved by the law of fair comment, which needed to "provide broader accommodation to the value of freedom of expression."
But the Appeal Court found the two cases were not as similar as they appeared, starting with the fact that while Mair was a journalistic "shock jock" whose listeners expected to hear "extravagant opinions," Hansman was "the president of a professional union of 45,000 teachers speaking in an official capacity about a school trustee."
Fenlon also wrote that, while Simpson was "the person associated by the media with the anti-gay side," there was no evidence at the time of Neufeld's Facebook post that he was associated with the "anti-LGBTQ side" or that readers and listeners might know of his positions.
Neufeld was re-elected as a trustee after the controversy, which the lower court judge took to suggest that his damages were limited, but the Appeal Court said defamation damages can also include amounts for loss of reputation, hurt feelings and vindication.
In concluding that the case should proceed, the Appeal Court judges cited a 2013 academic paper on "Giving and Taking Offence."
"Freedom is fragile because those who seek its protection are often or invariably the ones who are least sympathetic," the author wrote.
"As much as we may disapprove of the content or manner of their expression, that is not reason enough to silence or punish their interventions. Unless and until they cross a threshold of harm that justifies a regulatory response, transgressions that are merely offensive must be tolerated and addressed by other means."