Case Summary and Outcome

On May 19, 2023, the Supreme Court of Canada held that the public interest in protecting expression justified the dismissal of a defamation suit filed by a public school board trustee against a teacher who publicly criticized the trustee’s comments on an educational initiative aimed at fostering inclusion and respect for students who may face discrimination in school because of their gender identity and sexual orientation. After the trustee, Barry Neufeld, posted disparaging remarks about the initiative on Facebook, the teacher, Glen Hansman, was quoted in several media interviews describing Neufeld’s comments as “bigoted,” “hateful,” and “transphobic.”  Neufeld filed a defamation action against Hansman. Following a reversal in the Court of Appeals, the Supreme Court upheld the trial court’s dismissal order, reasoning that Hansman’s speech was dissenting political speech in defense of a vulnerable group. For the Court, Hansman’s speech was within the “core” speech protected by the Canadian Constitution. As a result, the Supreme Court considered that the public interest in allowing Hansman’s speech outweighed any harm the speech caused to Neufeld.

Facts

In 2016, British Columbia’s Ministry of Education launched the initiative “Sexual Orientation and Gender Identity 123” (SOGI 123), a project aimed at fostering inclusion and respect for students who may face discrimination in school—because of their gender identity or expression—by equipping teachers to instruct students on those topics. Barry Neufeld, an elected public school board trustee in Chilliwack, British Columbia, Canada, made online posts criticizing SOGI 123.  In a series of public Facebook posts, Neufeld wrote that the initiative was a “weapon of propaganda” that teaches the “biologically absurd theory” that “gender is not biologically determined, but is a social construct.” [para. 14] He also lamented that children were “being taught that heterosexual marriage is no longer the norm,” pointed to countries like Russia and Paraguay as examples of countries that “had the guts to stand up to these radical cultural nihilists,” and voiced his support for “traditional family values.” [para. 14]

Glen Hansman, a gay man, teacher, and former president of a large teachers’ union in British Columbia, became a prominent voice among the critics of Neufeld’s posts. In media interviews, Hansman described Neufeld’s views as “bigoted,” “transphobic,” and “hateful.” [paras. 18, 29] Hansman also publicly accused Neufeld of undermining the safety of 2SLGBTQ+ students in schools and questioned his fitness for public office.

Neufeld brought a defamation claim against Hansman based on his public comments regarding Neufeld’s views and fitness for office. Hansman raised a defense based on Section 4 of British Columbia’s Protection of Public Participation Act, S.B.C. 2019, c. 3 (PPPA)—a statute intended to limit strategic lawsuits against public participation (SLAPPs). Section 4 of the PPPA provides that if a defamation suit is filed against someone based on expressions regarding matters of public interest, the court must dismiss the suit unless (a) the plaintiff is likely to prevail and (b) the harm suffered by the plaintiff as a result of the expression “is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.” [s. 4(2)(b)]

The trial court dismissed Neufeld’s suit considering that it had the effect of unduly suppressing debate on matters of public interest. In doing so, the trial court held that Hansman had a valid fair comment defense to a defamation suit and that the value in protecting his expression outweighed the resulting harm done to Neufeld.

The Court of Appeal for British Columbia reversed on both counts. According to it, the trial court “ought to have considered as part of the weighing analysis ‘the potential chilling effect on future expression’ by the plaintiff, or others in his position, about ‘this or other highly charged matters of public interest’ that might occur if the action were dismissed.” [para. 43]

Hansman appealed to the Supreme Court of Canada.

Decision Overview

Justice Karakatsanis delivered the judgment for the Supreme Court of Canada, joined by Chief Justice Wagner and Justices Rowe, Martin, Jamal, and O’Bonsawin. Justice Côté wrote a lone dissent. The main issue before the Court was whether the public interest in protecting Hansman’s expression—criticizing a public school board trustee for making disparaging remarks about an initiative aimed at fostering inclusion and respect for students who may face discrimination in school—justified the dismissal of Neuman’s defamation suit under section 4 of the PPPA.

At the outset of its analysis, the Court noted that Section 4(2)(b) of the PPPA required Neuman to prove on a balance of probabilities that—due to “the harm likely to have been or to be suffered” by him as a result of Hansman’s expression—the public interest in allowing Neuman’s defamation suit to continue outweighs the suit’s “deleterious effects on expression and public participation.” [para. 59]

In order to weigh the conflicting interests, the Court used the factors outlined in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, [2020] 2 S.C.R. 587 (Pointes). The Pointes factors include “the importance of the expression, the history of litigation between the parties, [the] broader or collateral effect on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group.” [para. 60] [emphasis in original].

Taking this into consideration, the Court concluded that the suit’s dismissal was appropriate for three reasons. First, the Court ruled that Neufeld “failed to identify any specific harm flowing from the statements serious enough to outweigh the public interest in protecting Mr. Hansman’s expression.” [para. 62]  The Court observed that although criticism of Neufeld’s comments was widespread and pervasive, any harm suffered as a result of that criticism could not be fairly traced to Hansman’s statements alone. Moreover, Justice Karakatsanis noted that Neufeld “continued to express the same contentious views despite the public reaction and won re-election a year later,” undercutting Neufeld’s claim of reputational harm. [para. 69]

Second, the Court rejected the argument, adopted by the appellate court’s opinion, that the dismissal of the suit would lead to a “chilling effect” on “others who might wish to engage in debates on . . . highly charged matters of public interest.” [para. 73]  Holding that the potential chilling effect on would-be-plaintiffs like Neufeld fell outside the scope of harm considered by Section 4, Justice Karakatsanis noted that this factor had previously only been considered by courts to assess whether allowing lawsuits to continue would chill speech, and not to address the concern that the inability to sue would have that effect. The Court emphasized that section 4(2)(b) of the PPPA considers “the harm likely to have been or to be suffered by the respondent as a result of the application’s expression.” [para. 74] [emphasis in original] Thus, it concluded, “loss of a right to sue is a possible outcome of the public weighing exercise, not an input.” [para. 74] [emphasis in original].

Finally, the Court found that Hansman’s expression was “counter-speech motivated by a desire to promote tolerance and respect for a marginalized group in society.” [para. 62]  As a result, his expression deserved significant protection. Justice Karakatsanis observed that under the Canadian Constitution, the closer the expression lies to the core values of “truth-seeking, participation in political decision-making and diversity in the forms of self-fulfillment and human flourishing, ‘the greater the public interest in protecting it.’” [para. 79] [quoting Pointes at para. 77]

In reaching this conclusion, the majority reasoned that “counter-speech,” or dissenting speech, was particularly valuable to the core Constitutional value of truth-seeking when it concerns vulnerable minority groups. Acknowledging the historical and ongoing marginalization of transgender and other 2SLGBTQ+ individuals, the Court emphasized the importance of protecting speech that addresses the structural discrimination faced by transgender persons. While the majority highlighted recent advancements in legal protections, such as the recognition of gender identity and expression as protected grounds under Canadian human rights law, it stressed that these individuals remain among the most marginalized in society. Hence, the Court reasoned that speech promoting tolerance and inclusivity, particularly in defense of marginalized communities, aligns with the core values of freedom of expression under Section 2(b) of the Canadian Charter of Rights and Freedoms. As a consequence, “[t]here is a great public interest in protecting freedom of speech on such matters.” [para. 47]

Since Hansman’s speech was political counter-speech—as the Court concluded—intended to combat discriminatory expression, and because Neufeld failed to show serious harm resulting from Hansman’s speech, the Court dismissed Neufeld’s suit in light of the protection afforded to expression by Section 4 of the PPPA.

Concurring and dissenting votes

In her dissent, Justice Côté argued that the case should not have been dismissed prematurely and that Neufeld deserved his day in court. Côté criticized the majority for beginning their analysis with the public interest weighing exercise, rather than first determining whether Neufeld’s claim had substantial merit and whether Hansman had a valid defense. She contended that some of Hansman’s statements might have been seen as factual assertions rather than opinions, thereby weakening the fair comment defense. Côté also highlighted the significant harm that allegations of hate speech could inflict on a person’s reputation, arguing that dismissing the case at that stage risked suppressing controversial but legitimate viewpoints. By focusing on the potential chilling effect of the dismissal, Côté suggested that the public interest in adjudicating Neufeld’s claim outweighed the interest in protecting Hansman’s expression, emphasizing the importance of a full trial to resolve those complex issues.