Chilliwack school trustee Barry Neufeld (left) and former BCTF president Glen Hansman (right).

Chilliwack school trustee Barry Neufeld (left) and former BCTF president Glen Hansman (right).

BC Court of Appeal left to walk tightrope of freedom of expression in Neufeld-Hansman case

Is defamation lawsuit aimed at stifling free expression or does the defamation hinder free speech?

The three justices on the B.C. Court of Appeal need to weigh whether or not “fair comment” is a good enough defence for defamatory comments made by former B.C. Teachers Federation (BCTF) president Glen Hansman about Chilliwack School Board trustee Barry Neufeld.

Neufeld’s appeal of his defamation lawsuit dismissal wrapped up Thursday after a day and a half of submissions by Neufeld’s lawyer Paul Jaffe and Hansman’s lawyer Robyn Trask. The hearing was held over videoconferencing.

In 2018, Neufeld filed a civil lawsuit against Hansman for comments for former BCTF president made about the trustee in 2017 in the debate about anti-bullying gender identity materials used in schools in B.C., SOGI-123. Neufeld is highly critical of SOGI, criticism that has been labelled anti-LGBTQ and homophobic by many people, Hansman included.

BC Supreme Justice Alan Ross tossed out the defamation suit in 2019 following anti-SLAPP (Strategic Lawsuit Against Public Participation) legislation, also saying it had no reasonable prospect of success, and calling Neufeld’s submissions “skeletal at best.”

This was the first time the anti-SLAPP legislation has been used in court.

Neufeld’s affidavit was just three paragraphs long. The second paragraphs said only: “That, the public portrayal of me as a hateful, intolerant, homophobic, religious bigot and a threat to the safety of children commenced with the defendant’s statement on October 24, 2017 as I have pleaded herein.”

Neufeld then appealed the dismissal, that hearing was held Nov. 25 and 26, 2020.

READ MORE: Anti-SOGI school trustee files defamation lawsuit against BCTF president

READ MORE: Chilliwack ‘fair comment’ case dismissed by judge

At one point in the proceedings Thursday (Nov. 26), Justice Peter Willcocks articulated the compelling dilemma facing the court in this case, namely, defamation is a break in freedom of expression but does that mean the fair comment unfairly means a public figure can be defamed?

“Is the cost of participating in this debate, that [Neufeld] can be defamed?” Willcocks pondered in interrupting Trask. “We have to weigh that interest as part of the balancing exercise.… There is not just one side to the freedom of expression in this case.”

Trask responded that she did not mean to say that specifically, “but my friend indicated that it was his client’s freedom of expression that was at issue, but this is a defamation suit against my client.”

Trask also relied on the landmark Supreme Court of Canada case involving radio broadcaster Rafe Mair. In the 2008 decision, WIC Radio Ltd. v Simpson, the case addressed Mair’s on-air comments about Kari Simpson, a socially conservative activist with Culture Guard. Mair said Simpson was encouraging violence, and he compared her to Adolf Hitler, the Ku Klux Klan and skinheads.

In 2006, the BC Court of Appeal found that Mair did defame Simpson and that fair comment could not be relied upon. The Supreme Court similarly agreed about the defamation, but allowed Mair’s appeal, essentially rewriting the law, stating that the old test for defamation could no longer be used.

“With respect to fair comment, we say Mr. Hansman’s comments were a reasonable and proportionate response [to Neufeld’s comments about the LGBTQ community],” Trask said. “I also want to be clear that his comments do not need to be reasonable and proportionate, that is addressed in the Simpson decision.”

A day prior, Neufeld’s lawyer argued, in part, that BC Supreme Court Justice who tossed out the original lawsuit “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.”

At the end of the hearing on Nov. 26, the Justices reserved their decision, which means they will render that decision at a date in the future.

READ MORE: BC Court of Appeal hearing Barry Neufeld’s arguments why defamation suit should go ahead


Do you have something to add to this story, or something else we should report on? Email:
editor@theprogress.com

@TheProgress
Like us on Facebook and follow us on Twitter.

Want to support local journalism during the pandemic? Make a donation here.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Ripy Jubbal of Abbotsford has received a 30-month jail sentence for the fraudulent use of credit cards and credit card data. (Facebook photo)
Abbotsford woman sentenced for $80K in fraudulent credit card purchases

Ripy Jubbal and spouse used identities of 19 different victims, court hears

A woman in the Harrison Mills area was attacked by a cougar on Tuesday, May 4. (File photo)
UPDATE: 2 cougars killed following attack in Harrison Mills

Attack victim remains in hospital in stable condition

....
Abbotsford graphic designer pitches Flyers rebrand for AHL team

Alex Svarez suggests new affiliate team turns back the clock and brings back Flyers moniker

Mike Haire, a former vice-principal at W. A. Fraser Middle School in Abbotsford, began court proceedings on Monday, May 3 in New Westminster for two child pornography offences.
Trial paused for former Abbotsford vice-principal charged with child porn

Judge reserves decision on admissibility of evidence against Mike Haire

Abbotsford’s Jake Virtanen is now under investigation from the Vancouver Police Department following sexual misconduct allegations. (John Morrow/Abbotsford News)
Vancouver police investigating sexual misconduct claims against Canucks’ Jake Virtanen

Abbotsford native remains on leave with the Vancouver Canucks following recent allegations

Jose Marchand prepares Pfizer COVID-19 vaccination doses at a mobile clinic for members of First Nations and their partners, in Montreal, Friday, April 30, 2021. The National Advisory Committee on Immunization is coming under fire after contradicting the advice Canadians have been receiving for weeks to take the first vaccine against COVID-19 that they’re offered. THE CANADIAN PRESS/Ryan Remiorz
Trudeau says he is glad he got AstraZeneca, vaccines are only way out of pandemic

‘The most important thing is to get vaccinated with the first vaccine offered to you’

Solar panels on a parking garage at the University of B.C. will be used to separate water into oxygen and hydrogen, the latter captured to supply a vehicle filling station. (UBC video)
UBC parkade project to use solar energy for hydrogen vehicles

Demonstration project gets $5.6M in low-carbon fuel credits

FILE – A student arrives at school as teachers dressed in red participate in a solidarity march to raise awareness about cases of COVID-19 at Ecole Woodward Hill Elementary School, in Surrey, B.C., on Tuesday, February 23, 2021. THE CANADIAN PRESS/Darryl Dyck
B.C. ‘should be able to’ offer 1st dose of COVID vaccine to kids 12+ by end of June: Henry

Health Canada authorized the vaccine for younger teens this morning

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

A woman wears a face mask and shield to curb the spread of COVID-19 while walking in North Vancouver, B.C., on Wednesday, January 6, 2021. THE CANADIAN PRESS/Darryl Dyck
B.C. CDC updates info, acknowledging small respiratory droplets can spread COVID-19

Large droplets, not aerosols had been fixture of public health messaging for many months

A picture of Shirley Ann Soosay was rendered from a postmortem photographer and circulated on social media. (DDP graphic)
B.C. genealogist key to naming murder victim in decades-old California cold case

In July 1980, Shirley Ann Soosay was raped and stabbed to death

Mary Kitagawa was born on Salt Spring Island and was seven years old when she was interned along with 22,000 B.C. residents in 1942. (B.C. government video)
B.C. funds health services for survivors of Japanese internment

Seniors describe legacy of World War II displacement

Meghan Gilley, a 35-year-old emergency room doctor and new mom was vaccinated from COVID-19 in January, while she was pregnant. She’s encouraging others to do the same. (Submitted)
‘The best decision’: B.C. mom encourages other pregnant women to get COVID-19 shot

Meghan Gilley, 35, delivered a healthy baby after being vaccinated against the virus while pregnant

Most Read