The Supreme Court of Canada has released its much-anticipated decision in Hansman v. Neufeld (Hansman), a decision interpreting British Columbia’s anti-SLAPP legislation and adding to the discourse on how the public interest is weighed against personal rights of self-expression.
Background
Barry Neufeld was a public school board trustee in Chilliwack, British Columbia (BC). He was critical in online commentary of an initiative of the British Columbia government to make instructional material related to gender identity and sexual orientation available to educators. Mr. Neufeld’s statements were controversial and they attracted the attention of Glen Hansman, a teacher and former president of the British Columbia Teachers’ Federation, a teachers’ union. Mr. Hansman made media statements describing Mr. Neufeld’s comments as bigoted and transphobic, and he questioned Mr. Neufeld’s suitability for his role as trustee. Mr. Neufeld sued for defamation.
Anti-SLAPP proceedings
Mr. Hansman responded by seeking to have the court declare Mr. Neufeld’s defamation claim a “strategic lawsuit against public participation,” or a “SLAPP.” British Columbia, as in many other provinces, has legislation aimed at preventing the use of litigation as a tool of suppressing public discourse. British Columbia’s law is the Protection of Public Participation Act (the Act) and it requires courts to dismiss any claim, despite its merits, if the public interest in protecting a defendant’s freedom of expression outweighs the public interest in remedying the harm to the plaintiff. If Mr. Hansman was successful in having the defamation claim declared a SLAPP, Mr. Neufeld’s defamation action would be dismissed without further consideration.
Lower court sides with Mr. Hansman
Mr. Hansman’s motion was successful in the first instance. In responding to Mr. Hansman’s anti-SLAPP motion, Mr. Neufeld had the (high) burden under the Act of demonstrating that Mr. Hansman had no viable defence to Mr. Neufeld’s defamation claim. Mr. Hansman relied on the “fair comment” defence, a common defence to defamation claims in which the alleged defamer maintains that their statement was a legitimate opinion on a matter of public interest.[1] The judge determined that the fair comment defence could be viable for Mr. Hansman and further found that, regardless of the fair comment defence, the public interest favored Mr. Hansman’s position. Mr. Neufeld had “submitted almost no evidence of damaged suffered” by virtue of Mr. Hansman’s comments on his controversial statements, and so in the judge’s telling, Mr. Neufeld’s defamation claim would succeed in stifling Mr. Hansman’s rights of expression for no purpose. The judge granted Mr. Hansman’s motion and dismissed Mr. Neufeld’s defamation claim.
Appeal court sides with Mr. Neufeld
The BC Court of Appeal, however, overturned that decision and reinstated the defamation claim. The Court criticized the finding that the fair comment defence could be available to Mr. Hansman, as that defence requires the comments to be based on fact and the Court of Appeal thought there were grounds to question the factual basis for some of Mr. Hansman’s stated opinions. More importantly, the Court of Appeal concluded that the lower court was mistaken in its analysis of the public interest, on the basis that there is a presumption of damages in defamation and that the statements Mr. Hansman made, regardless of the merits of his defence, carried a particular defamatory “sting.”
The Supreme Court of Canada sides with Mr. Hansman
The Supreme Court of Canada (the Court), in a 6-1 decision,[2] restored the lower court’s decision and dismissed Mr. Neufeld’s defamation claim.
The Court addressed two issues – the weighing of the public interest and the availability of the fair comment defence in defamation. Justice Karakatsanis, writing for the majority, found that the Court of Appeal erred in both respects. We focus on the public interest argument as being the most important.
In addressing the public interest, the Court looked closely at the language of the Act. Section 4(2)(b) which required Mr. Neufeld, who was responding to Mr. Hansman’s motion to declare his claim a SLAPP, to show that the public interest in allowing his claim to continue outweighed the “deleterious effects on expression and public participation.” This weighing exercise is informed by the Court’s earlier decision in 1704604 Ontario Ltd. v. Pointes Protection Association (Pointes),[3] which identified a series of factors that could guide a court’s analysis, including the importance of the expression in question; the personal relationship of the parties; their history of litigation; the relative resources of each side in the lawsuit; and the prospect of the expression provoking hostility against a group protected by s. 15 of the Charter.
The Supreme Court noted that the Court of Appeal had given particular weight to the “chilling” effect on freedoms of expression that could arise if the remedy of defamation was not available to those who were subsequently criticized for expressing their own opinion. To the Court of Appeal, this “chilling” effect from the inability to sue was a competing interest that should be weighed against the interest of the defendant’s freedom of expression.
The Supreme Court identified that as a critical error in the Court of Appeal’s analysis. It found the chilling effect runs the other way – it is not the inability of those in Mr. Neufeld’s position to sue anyone who criticizes their expression that is concerning, but rather the ability of those in Mr. Neufeld’s position to use a lawsuit to stimy criticism of their own expression. The Court found this was particularly true here, where Mr. Hansman was defending a vulnerable group by his statements. The Court determined that the protection of that vulnerable group – LGBTQIA2S+ persons – merited particular protection in the public discourse.
The dissent
Showing her willingness to critically analyze and differ with the decisions of her fellow Justices, Justice Côté provided a dissent. In her view, public discourse, which by its nature can be both confrontational and an exercise of fundamental rights, can lend itself to the use of intemperate language aimed at discrediting one’s opponents. She notes that freedom of expression, fundamental as it is, does not protect such language if it unfairly offends against one’s reputation – this is the origin of the tort of defamation. The defamation lawsuit itself is the means by which a court should weigh the freedom of expression against reputational harms.
Justice Côté calls attention to the majority’s finding that, under the Act, the public interest question and the merits of the claim question are addressed in tandem. She points out that, under Pointes, public interest considerations are only engaged if the plaintiff clears the merits hurdle. Looking back at the Court of Appeal’s decision, Justice Côté found that there were grounds to believe Mr. Hansman might not have access to the fair comment defence for all of his statements and that the potential harm to Mr. Neufeld is serious. Her language is tentative, which is her point – the defamation claim has not (and by this judgment, will not) have its day in court. The ultimate merits of Mr. Neufeld’s claim will never be considered.
Finally, to Justice Côté, the public interest weighing exercise conducted by the majority is in error. She finds no authority for the proposition that the promotion of equality, of concern to the majority, is “one of the competing values at play under legislation designed to discourage SLAPPs,” but the protection of one’s reputation and rights to expression are such values.
Comment
Hansman v Neufeld will not be the final case considered by the Supreme Court on the balancing exercise of the public interest versus the right of expression and its interplay with the desire to prevent strategic litigation. Of all the judges weighing in on the case, seven found that the greater risk of lessened expressive rights was borne by Mr. Hansman, but four ostensibly made the opposite determination. Reading Pointes with the majority’s decision in Hansman, the right way to conduct the balancing exercise remains opaque.
For more information on this topic, please contact the authors Brandon Barnes Trickett and Laurie Livingstone.
[1] The test for relying on the fair comment defence was determined by the Supreme Court of Canada in WIC Radio Ltd. v. Simpson, 2008 SCC 40. That decision was relied upon by Mr. Hansman in the present case.
[2] Wagner CJ and Karakatsanis, Rowe, Martin, Jamal, and O’Bonsawin JJ for the majority; Côté dissenting
[3] 2020 SCC 22
