Dear Colleagues;

The Supreme Court of Canada has handed down a decision on a defamation case in Hansman v. Neufeld, 2023 SCC 14 (19 May 2023). The case concerned a specific statute precluding a defamation action in some circumstances, the British Columbia Protection of Public Participation Act (“PPPA”). This is an example of a so-called anti-SLAPP law, designed to deal with the problems caused by strategic lawsuits against public participation (“SLAPP”).

The facts involved statements made online by the plaintiff Mr Neufeld, then a public school board trustee in Chilliwack, British Columbia, criticising government educational materials on gender identity, which then led to Mr Hansman, former president of a large teachers’ union in the province, calling the plaintiff’s comments bigoted, transphobic, and hateful; accusing him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools; and questioning whether he was suitable to hold elected office.

When sued by the plaintiff for defamation on the basis of these comments, the defendant relied on s 4 of the PPPA to dismiss the claim. As Karakatsanis J writing for the majority summed up this provision at [37]:

 

Section 4 creates a pretrial screening mechanism that instructs a judge to dismiss an action arising from expression on a matter of public interest unless the plaintiff can satisfy the judge that their action has substantial merit; the defendant has no valid defence in the proceeding; and the harm to the plaintiff as a result of the defendant’s expression is serious enough to outweigh the public interest in protecting that expression.

 

The court ruled in favour of the defendant 6:1 (Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O’Bonsawin JJ; Côté J dissenting.) The majority decision found that on weighing up the various interests involved, the public interest (especially relating to the equality rights of a vulnerable group) favoured giving the defendant’s comments immunity, and also that the defendant had made a plausible case that a defence of fair comment would succeed.

I have to say that I think the dissent by Côté J is much more persuasive. Her Honour notes the significant issues around balancing free speech and the right to reputation, and points out that disallowing actions based on “counter-speech” in a public debate,  like this one brought by the plaintiff, can have a serious chilling effect:

 

[175]…[I]n the context of defamatory counter-speech, interpreting s. 4 of the PPPA so as to deprive defamed parties who have suffered serious harm of their day in court could very well be detrimental to public debate. It could prevent those who hold controversial or unpopular views from entering the public arena to share them.

 

Her Honour criticises her colleagues for addressing the statutory issues in the wrong order, for ignoring some statements which clearly seem to be statement of “fact” rather than mere “opinion” (and hence disallowing the defence of fair comment), for down-playing the serious harm to reputation caused by the comments, and for in the end conducting the balancing exercise by weighing in on the defendant’s side of the contested issues. At [169]:

 

[169] The role of this Court is not and should not be to evaluate the soundness of Mr. Hansman’s and Mr. Neufeld’s respective positions ... Freedom of expression is content-neutral, which is why its scope even encompasses expression that is “unpopular, distasteful or contrary to the mainstream” (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 968). This fundamental freedom would be seriously undermined if the outcome of the public interest weighing exercise under the PPPA depended on the alignment between the views expressed by the applicant and those held by the court.

 

Of course, this decision relates to the specific type of anti-SLAPP law in force in BC, and it is not directly relevant to defamation at common law or the way it has been amended by statute in other jurisdictions. But there are some findings here which may connect with more general issues. For example, if someone is accused of “hate speech”, is that a statement of fact, or just a “slur” of a general nature that would be interpreted as opinion? The majority at [111] say that ““loose, figurative or hyperbolic” labels (WIC Radio, at para. 26), like homophobic, transphobic, bigoted, racist, or sexist are properly characterized as comment, not fact”. Cote J at [156] says that in this case it was an accusation of “precise wrongdoing”.

 

Regards

Neil