The highest court in B.C. heard from Chilliwack school board trustee Barry Neufeld’s lawyer Wednesday morning in the first day of the appeal of his defamation lawsuit against former British Columbia Teachers’ Federation (BCTF) president Glen Hansman being dismissed in BC Supreme Court.
Jaffe’s main argument to the three-judge BC Court of Appeal is that the trial judge did not properly address the alleged defamation while coming to the conclusion, and that the media coverage that included Hansman’s alleged defamation was not properly examined by the judge.
It was just prior to the Oct. 20, 2018 municipal election when Neufeld filed the defamation lawsuit against Hansman who was BCTF president at the time.
Hansman has been one of Neufeld’s strongest critics over the SOGI 123 controversy and has been quoted in various media outlets as critical of Neufeld’s behaviour, calling it discriminatory, hateful, transphobic, and that Neufeld “shouldn’t be anywhere near students.”
Jaffe claimed that “the militant nature of some activists and fear of hostile backlash had a chilling effect on meaningful debate about SOGI on school boards across B.C.”
But on Nov. 26, 2019, Justice A. Ross dismissed the lawsuit in the first ever use of the province’s then brand new “anti-SLAPP” legislation. The Protection of Public Participation Act (PPPA) protects people from Strategic Lawsuits Against Public Participation (SLAPP).
Ross found that in balancing the interests of Hansman’s free expression and Neufeld’s harm suffered “I find the interest in public debate outweighs the interest in continuing the proceeding on those facts.”
Neufeld filed an appeal of that decision, and the first of a two-day hearing began Wednesday (Nov. 25, 2020).
In part, his lawyer Jaffe argued that BC Supreme Court Justice “has turned the SLAPP act on its head. He’s preventing Neufeld from having a day in court for a libel claim for the benefit of a party [Hansman] that has used libel to shut down debate.”
Jaffe argued that any claim of hatred or bigotry or transphobia is actually absent from Neufeld’s comments criticizing SOGI-123. The three Justices hearing the case occasionally had to interupt Jaffe to clarify his direction and to ensure he was not attempting to bring the original case forward yet again, and instead was focused on addressing where the trial judge supposedly erred in his decision.
Jaffe suggested that Justice Ross did not properly address the defamation alleged by Hansman’s comments in a series of news stories, instead too quickly reverting to a claim of “fair comment.”
Jaffe further argued in pointing to a Chilliwack Progress article on Oct. 19, 2018, that Hansman was commenting on Neufeld – “doubling down” – even though the lawsuit was filed a week prior.
Justice Willcock suggested to Jaffe that he might not want to make such a submission lest it undercut his own argument if he was implying that the lawsuit should have kept Hansman from commenting publicly.
“The whole point of the SLAPP legislation is to stop defamation suits from stopping people from engaging in public policy discussions and this argument cuts both ways,” Willcock said.
Jaffe wrapped up his submissions mid-afternoon on Wednesday (Nov. 25), followed by Hansman’s lawyer Robyn Trask who got started.
She began by suggesting the case was a textbook SLAPP case, there was a strong fair comment defence, and there is no harm flowing from the comments.
While Jaffe focused on the now infamous October 2017 Facebook post by Neufeld that started all the criticism against him, and he focused on Hansman’s comments, Trask pointed to numerous other comments Neufeld had made over the months and numerous news articles that do not include criticism from Hansman.
She said Hansman’s responses were “clearly fair comment” of an individual in the public realm who made several inflammatory public social media posts.
Earlier in the day, Jaffe anticipated the argument that Hansman’s criticism were one among many, by saying: “There is no refuge in a mob for a defendant in a libel case.”
Trask will continue Thursday (Nov. 26) and the hearing is scheduled to wrap up that day.
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