Supreme Court Of Canada Affirms The Importance Of Protecting "Counter-Speech"

• Law Firm: McCarthy Tétrault LLP
• Subject Matter: Employment and HR, Government, Public Sector, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Human Rights, Libel & Defamation
• Author: Canadian Appeals Monitor, Adam Goldenberg, Solomon McKenzie, Andrew Weizman and Sabih Ottawa
• Published date: 30 May 2023

In Hansman v. Neufeld, the Supreme Court of Canada recognized a weighty public interest in protecting "counter-speech" by those who advocate for 2SLGBTQI+ equality. In doing so, the Court rendered a historic judgment that affirms the importance of protecting the dignity and equality of trans individuals under Canadian law. The Court also provided important guidance on the test to be applied in "anti-SLAPP" applications and the defence of "fair comment" in defamation actions.

Anti-SLAPP legislation

In British Columbia, Ontario, and Quebec, a defendant in a proceeding that arises out of their expression related to a matter of public interest may seek to have the proceeding dismissed at an early stage. The legislation that authorizes such applications is known as "anti-SLAPP" legislation; a "SLAPP" is a "strategic lawsuit against public participation".¹

In Hansman, the Supreme Court summarized the anti-SLAPP framework in British Columbia (which is nearly identical to the framework in Ontario) as follows:

[An anti-SLAPP] application first requires the applicant (the defendant) to prove, on a balance of probabilities, that the proceeding arises from expression that relates to a matter of public interest .... If the defendant does so, the onus shifts to the respondent (the plaintiff) ... to satisfy the court there are grounds to believe that: (1) the proceeding has substantial merit ... , and (2) the defences raised by the defendant are not valid, in that they can be said to have no real prospect of success .... If the court is not satisfied the plaintiff has met their onus as to one or both criteria, it must dismiss the proceeding. Even if, however, the plaintiff meets their burden, the court must conduct a public interest weighing exercise ... , in which the plaintiff must satisfy the court that the harm they are likely to have suffered or are likely to suffer due to the defendant's expression outweighs the public interest in protecting that expression.²

Two steps of the anti-SLAPP analysis were at issue in Hansman: the "no valid defence" requirement and the weighing of public interests.

Summary of the facts

Barry Neufeld was an elected public school trustee in Chilliwack, British Columbia. He posted comments online criticizing "SOGI 123", a provincial government initiative to help educators teach about sexual orientation and gender identity. Among other things, Mr. Neufeld condemned SOGI 123 as a "weapon of propaganda" and, in a Facebook post, expressed concern about its teachings on gender and "non-heterosexual norms".

Mr. Neufeld's comments provoked a forceful response, including from Glen Hansman, a former president of British Columbia's public school teachers' union. Among other things, Mr. Hansman characterized Mr. Neufeld's views as "intolerant" and "bigoted", condemned his comments as "transphobic", and stated that he had "tip toed quite far into hate speech" and that he should not be "anywhere near students". In the lead-up to the October 2018 Chilliwack school board election (in which Mr. Neufeld was a candidate), Mr. Hansman was also quoted as saying that "[i]t is extremely problematic to have somebody who is running as a school trustee continuing to spread hate about LGBTQ people ' especially trans people".

Mr. Neufeld sued Mr. Hansman for defamation. Mr. Hansman brought an "anti-SLAPP" application under British Columbia's Protection of Public Participation Act, seeking to have Mr. Neufeld's lawsuit dismissed.

Mr. Hansman won in the B.C. Supreme Court, which concluded that: (i) there were no grounds to believe that Mr. Hansman did not have a valid defence of "fair comment"; and (ii) even if Mr. Hansman did not have a "fair comment" defence, the public interest in protecting...