Anti-SLAPP Strikes Back: SCC Grants Leave to Appeal in Glen Hansman v Barry Neufeld
If one is engaged in public discourse, are comments that might damage another’s reputation protected? This is the question to be taken up in Glen Hansman v Barry Neufeld, SCC Case No. 39796, and a central concern of anti-SLAPP legislation, which seeks to strike a balance between protecting reputation and the value of rigorous debate. On January 13, 2022, the Supreme Court of Canada (“SCC”) granted leave to appeal from the decision of the British Columbia Court of Appeal (“BCCA”) in Neufeld v Hansman, 2021 BCCA 222 (“Neufeld”).
Barry Neufeld is a Chilliwack school board trustee. Mr. Neufeld made several posts on Facebook criticizing the SOGI 123 (Sexual Orientation and Gender Identity) curriculum introduced after the inclusion of “gender identity or expression” as a ground of discrimination under BC’s Human Rights Code, RSBC 1996, c 210. These posts allegedly expressed a range of hateful ideas about LGBTQ+ persons and immigrants, though Neufeld insists that he is supportive of individuals and their rights and only criticizes the curriculum.
Glen Hansman is a teacher, a gay man, and a former president of the British Columbia Teachers’ Federation. Mr. Hansman was contacted by members of the media to comment on Mr. Neufeld’s statements. Among Mr. Hansman’s remarks, he alleged that Mr. Neufeld was creating an unsafe environment for teachers and students and that his comments “tiptoed quite far into hate speech” (Neufeld, para 13). Mr. Neufeld claims that Mr. Hansman’s allegations that he spreads hate about LGBTQ+ persons, immigrants, and refugees, are not grounded in fact and has or will cause damage to his reputation.
Mr. Neufeld filed a defamation suit against Mr. Hansman, claiming harm to his reputation caused by Mr. Hansman’s comments to the media. Mr. Hansman, in turn, filed an application for the British Columbia Supreme Court (“BCSC”) to dismiss Mr. Neufeld’s suit under the Protection of Public Participation Act, SBC 2019, c 3 [PPPA], section 4.
The BCSC ruled in Mr. Hansman’s favour and dismissed the defamation suit. The BCCA overturned the BCSC decision. Mr. Hansman appealed to the SCC.
Anti-SLAPP, Pointes Protection, and the Public Interest Hurdle
While Mr. Hansman and Mr. Neufeld both made public statements, the defamation suit represents one manifestation of the dark side of public discourse: legal action. Of course, legislatures have contemplated that parties engaged in this type of discussion might use legal action as a means of silencing their opposition. Thus, the rise of anti-SLAPP legislation.
A SLAPP is a Strategic Lawsuit Against Public Participation — a legal action where one party sues the other to prevent or discourage them from, among other things, adding their voice to a conversation. Mr. Hansman applied to dismiss Mr. Neufeld’s defamation suit on the basis that it was a SLAPP, under legislation designed to protect against such a tactic.
Mr. Hansman’s appeal to the SCC centres around the correct application of an anti-SLAPP provision, section 4(2)(b) of the PPPA:
4(2) If the applicant satisfies the court that the proceeding arises from an expression referred to in subsection (1), the court must make a dismissal order unless the respondent satisfies the court that
(b) the harm likely to have been or to be suffered by the respondent as a result of the applicant’s expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.
This is the last in a four-step framework, the step that 1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 (“Pointes Protection”) terms the “public interest hurdle.” (For a more in-depth discussion of anti-SLAPP in the Ontario context, see Julia Schabas’s discussion of the Pointes Protection decision.)
Section 4(2) of the PPPA is almost identical to section 137.1 of the Ontario Courts of Justice Act, RSO 1990, c C.43 [CJA], which the SCC considered just two years ago in Pointes Protection and Bent v Platnik, 2020 SCC 23. Accordingly, the BCCA relied heavily on the SCC’s reasons in those two cases when deciding Neufeld (the decisions had not been released when the BCSC ruled on Hansman’s PPPA application).
As the test established in Pointes Protection stemmed from a near-identical provision to that at issue here, the BCCA saw fit to import the Ontario-based test when deciding this matter. Mr. Hansman does not seem to dispute the first three steps of that framework, only the last: the weighing exercise.
Party Positions in the SCC Appeal
Hansman: Anti-SLAPP Cannot Consider “Chilling Effects” on Plaintiffs
The BCCA indicated that the lower court’s failure to consider “the potential chilling effect on future expression either by a party or by others” amounted to a reversible error (Neufeld, para 65, quoting Pointes Protection, para 80). This chilling effect was only one of a list of factors that a motion judge “may” consider, and not a necessary consideration (Pointes Protection, para 80).
In his Memorandum of Argument (“Memo”), Mr. Hansman submits that this factor refers only to the defendant’s expression (here, the expression alleged to be defamatory). Mr. Hansman points to the organization of the SCC’s reasons in Pointes Protection, a position that holds a significant degree of salience, as the SCC’s discussion in this section of Pointes Protection has no reference to the plaintiff’s expression whatsoever (Pointes Protection, paras 78-80).
Mr. Hansman’s Memo goes on to submit that the BCCA’s interpretation of the Public Interest Hurdle frustrates the very purpose of the PPPA:
Plaintiffs sue defendants in defamation, not the other way around. The very purpose of the statute is to screen out such litigation when it unduly limits the defendant’s expressive activity. To allow a claim to proceed because of a concern for the plaintiff’s expressive activity is to turn the Act on its head (Memo, para 54).
Neufeld: Free Expression Entitles Plaintiffs to a Defamation Suit
Mr. Neufeld’s Memorandum of Argument, in stark contrast to Mr. Hansman’s Memo, avoids any discussion of the issues raised by Mr. Hansman. Instead, Mr. Neufeld’s position seems to be that the SCC need not waste its time considering any clarification on the Public Interest Hurdle. Instead, Mr. Neufeld’s “freedom of debate”—his freedom of expression—is of paramount importance, entitling his defamation action to proceed, no matter the relative values of his expression and Mr. Hansman’s.
This bare assertion holds significant problems. The lack of response to the legal issues enumerated in Mr. Hansman’s Memo makes it difficult to predict what arguments Mr. Neufeld will make before the SCC. When the hearing comes, Mr. Neufeld will have to make his position clear and known, and argue it well. Anti-SLAPP legislation like the PPPA operates by its very definition as a limit on free expression. A simple claim that Mr. Neufeld’s expressive rights are at stake may not suffice to sway the SCC.
The free expression guaranteed by section 2(b) of the Charter has significant limits. Promoting hatred is one such limit that the SCC finds reasonable (Criminal Code, RSO 1985, c C-46, section 319; R v Keegstra,  3 SCR 697). However, as the BCCA pointed out, the SCC has set quite a high standard for expression to be considered “hatred” (Neufeld, para 67; Saskatchewan Human Rights Commission v Whatcott,  1 SCR 467 (“Whatcott”)). Hatred requires “detestation” and “vilification”; that expression “risks causing discrimination or other harmful effects” (Whatcott, para 57).
The question of the nature of Mr. Neufeld’s comments is a matter for the defamation suit. At issue in the upcoming SCC appeal is not whether Mr. Neufeld’s comments are protected, but whether he should be permitted to safeguard his reputation against someone else’s accusations. Do Mr. Neufeld’s comments rise to the level of hatred? Do they carry a risk of discrimination? For Mr. Hansman, as for many, the answer is clearly yes. But for a court trending increasingly towards a strict interpretation of rights, it seems likely that Mr. Neufeld’s right to participate, express, and protect his reputation will win out.