A lawyer for controversial Chilliwack school trustee Barry Neufeld argued in court Wednesday that a precedent-setting anti SLAPP ruling dismissing a defamation lawsuit launched by Neufeld should be overturned.
The hearing in the B.C. Court of Appeal, which had been scheduled for some time, came just days after Neufeld became embroiled in a controversy over remarks he made about the staff of a Chilliwack newspaper that prompted calls for his resignation.
Neufeld’s appeal related to a November 2019 decision by B.C. Supreme Court Justice Alan Ross throwing out the trustee’s defamation suit against former B.C. Teachers Federation (BCTF) president Glen Hansman.
A Facebook post by Neufeld in October 2017 that was critical of a gender inclusivity education program known as SOGI 123, with SOGI standing for sexual orientation gender identity, had sparked a media storm with comments from Hansman in a number of publications and calls for Neufeld to step down.
Jaffe said his client should have his day in court in what he claimed was a “very compelling” libel claim and said that when powerful parties like the BCTF use libel to silence critics, that has to be a real concern and something that the courts should denounce.
“That’s why I say the judgment below has turned the SLAPP Act on its head,” Jaffe said.
Robyn Trask, a lawyer for the Hansman, told the panel that based on the law and with guidance from the Supreme Court of Canada, the Neufeld case was a “textbook” example that is properly dismissed under the SLAPP legislation.
“The respondent has a strong fair comment defence. The appellant has not established the likelihood of significant harm if the action does not proceed and the public interest in protecting the respondent’s expression is high,” Trask said.
He said the B.C. Supreme Court judge did not err in dismissing the defamation claim and argued it was important to view the alleged defamatory statements, which occurred over the period of about a year, in context.
She is expected to finish her submissions Thursday. The panel, comprised of Justices Paul Willcock, Lauri Ann Fenlon and Peter Voith are expected to hand down their ruling at a later date.
Neufeld responded by filing a defamation suit claiming that Hansman’s statements suggested that he was bigoted, hated homosexuals and transgender people, that he had committed the criminal offence of hate speech and that he should not be allowed near children.
Hansman reacted to the suit by seeking to have the case thrown out under a new B.C. law passed in March 2019, the Protection of Public Participation Act, whose purpose is to protect participation in matters of public interest. There had been a trend toward lawsuits aimed at silencing or punishing a person or company’s critics, which had come to be known as Strategic Lawsuits against Public Participation or SLAPP suits.
Hansman’s anti-SLAPP suit, the first launched in B.C., claimed that while some of his words could be capable of defamatory meaning, there was a strong case for the defence of fair comment.
In his decision, Justice Ross found that while Neufeld had an interest in claiming damages and clearing his good name, the public had an interest in protecting expressions that relate to public debate and that the interest in public debate outweighed the interest in proceeding with the defamation suit.
Paul Jaffe, a lawyer for Neufeld, argued Wednesday that the SLAPP legislation was seeking to respond to mischief arising from powerful and wealthy people seeking to silence critics. He told a three-judge panel of the B.C. Court of Appeal that the Neufeld case was not a case that was contemplated when the act was brought into effect.