Glen Hansman Appellant v. Barry Neufeld, 2023 SCC 14

SUPREME COURT OF CANADA Citation: Hansman v. Neufeld, 2023 SCC 14 Appeal Heard: October 11, 2022 Judgment Rendered: May 19, 2023 Docket: 39796 Between: Glen Hansman Appellant and Barry Neufeld Respondent - and - Attorney General of British Columbia, QMUNITY, Skipping Stone Scholarship Foundation, Canadian Human Rights Commission, Canadian Civil Liberties Association, Community-Based Research Centre, Canadian Centre for Gender & Sexual Diversity, West Coast Legal Education and Action Fund, B.C.

General Employees’ Union, Egale Canada and Centre for Free Expression Interveners Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ. R easons for J udgment : (paras. 1 to 122) Karakatsanis J. (Wagner C.J. and Rowe, Martin, Jamal and O’Bonsawin JJ. concurring) Dissenting Reasons : (paras. 123 to 179) Côté J. Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Glen Hansman Appellant v. Barry Neufeld Respondent and Attorney General of British Columbia, QMUNITY, Skipping Stone Scholarship Foundation, Canadian Human Rights Commission, Canadian Civil Liberties Association, Community-Based Research Centre, Canadian Centre for Gender & Sexual Diversity, West Coast Legal Education and Action Fund, B.C. General Employees’ Union, Egale Canada and Centre for Free Expression Interveners Indexed as: Hansman v. Neufeld 2023 SCC 14 File No.: 39796. 2022: October 11; 2023: May 19.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ. on appeal from the court of appeal for british columbia Courts — Dismissal of proceeding that limits debate — Defamation — Public interest weighing exercise — Valid defence — Fair comment — British Columbia framework for dismissal of strategic lawsuits against public participation (SLAPPs) — Defamation action concerning statements made by defendant in response to school board trustee plaintiff’s opposition to sexual orientation and gender identity initiative dismissed under provincial anti-SLAPP legislation by chambers judge — Whether chambers judge erred in public interest weighing exercise — Whether chambers judge erred in finding that plaintiff did not show grounds to believe defendant had no valid fair comment defence — Protection of Public Participation Act, S.B.C. 2019, c. 3, s. 4(2) .

N, a public school board trustee in Chilliwack, British Columbia, made online posts criticizing a provincial government initiative designed to equip educators to instruct students about gender identity and sexual orientation. Many considered his comments to be derogatory of transgender and other 2SLGBTQ+ individuals. H, a gay man, teacher, and former president of a large teachers’ union in the province, was prominent among the dissenting voices and made statements to media.

H called N’s views bigoted, transphobic, and hateful; accused him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools; and questioned whether he was suitable to hold elected office. N sued H for defamation. H then applied to have N’s defamation action dismissed as a strategic lawsuit against public participation (“SLAPP”) under s. 4 of British Columbia’s Protection of Public Participation Act (“ PPPA ”). The chambers judge allowed the application and dismissed the action.

He held both that H had a valid fair comment defence and that the value in protecting his expression outweighed the resulting harm done to N. The Court of Appeal disagreed on both counts and reinstated the action. Held (Côté J. dissenting): The appeal should be allowed. Per Wagner C.J. and Karakatsanis , Rowe, Martin, Jamal and O’Bonsawin JJ.: The chambers judge did not err in concluding that the public interest weighing exercise mandated dismissal of the underlying action or that N failed to adequately challenge the validity of H’s fair comment defence.

Accordingly, his order dismissing the defamation action should be restored.

Section 4 of the PPPA creates a pretrial screening mechanism that instructs a judge to dismiss an action arising from expression on a matter of public interest unless the plaintiff can satisfy the judge that their action has substantial merit ( s. 4(2) (a)(i)); the

defendant has no valid defence in the proceeding ( s. 4(2) (a)(ii)); and the harm to the plaintiff as a result of the defendant’s expression is serious enough to outweigh the public interest in protecting that expression ( s. 4(2) (b)). A s. 4 application first requires the defendant to prove that the proceeding arises from expression that relates to a matter of public interest ( s. 4(1) ), at which point the onus shifts to the plaintiff under s. 4(2) . The order in which a judge chooses to address each of the elements under s. 4(2) is at the discretion of the court, but the court must dismiss the proceeding if the plaintiff does not meet its onus as to either s. 4(2) (

a) or 4(2) (b).

Section 4 is nearly identical to the pretrial screening mechanism established by subss. (3) and (4) of s. 137.1 of Ontario’s Courts of Justice Act : the core feature of both laws is the recognition that even claims with substantial merit will be dismissed where the public interest in preserving free debate outweighs the harm to the plaintiff that the litigation purports to address. Given the substantial similarity between the laws, the Court’s

interpretation of s. 137.1 in 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22 , [2020] 2 S.C.R. 587, and Bent v. Platnick , 2020 SCC 23 , [2020] 2 S.C.R. 645, applies with equal force to s. 4 of the PPPA . Under s. 4(2)(

b) of the PPPA , on one side of the public interest weighing exercise, the factor to be considered in favour of the public interest in continuing the proceeding is the likely harm to the plaintiff as a result of the defendant’s expression. Although general damages are presumed in defamation law, the weighing exercise prescribed by s. 4(2)(

b) requires that the harm to the plaintiff be serious enough to outweigh the public interest in protecting the defendant’s expression. While the presumption of damages can establish the existence of harm, it cannot establish that the harm is serious. To succeed on the weighing exercise, a plaintiff must provide evidence that enables the judge to draw an inference of likelihood of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression.

Moreover, the legislation requires some evidence that enables the judge to infer a causal link between the defendant’s expression and the harm suffered. Where the defendant is not the only one speaking out against the plaintiff, inferring a causal link between the defendant’s expression and the harm suffered by the plaintiff becomes both more important and more difficult. In the instant case, given the dearth of evidence from N on harm, the chambers judge did not err in concluding that N had adduced almost no evidence of damage suffered as a result of H’s statements.

The harm relevant to the public interest weighing exercise is harm to the plaintiff caused by the defendant’s statements, not by the plaintiff’s inability to sue. The loss of a right to sue is a possible outcome of the public interest weighing exercise, not an input. In the instant case, the Court of Appeal’s consideration of a chilling effect flowing from a plaintiff’s inability to pursue a defamation claim turns the concept on its head.

The Court’s freedom of expression jurisprudence addresses the concern that the possible imposition of a legal penalty would cause speakers to refrain from commenting on matters of public interest. Instead, the Court of Appeal held that the inability to inflict a legal penalty on H would chill N’s expression and those of others who wish to express unpopular views. There is no chilling effect in barring potential plaintiffs from silencing their critics and collecting damages through a defamation suit. The other side of the weighing exercise evaluates the public interest in protecting the defendant’s expression.

In making this assessment, s. 2(

b) Charter jurisprudence grounds the level of protection afforded to the defendant’s expression in the nature of the expression. Similarly, s. 15(1) considerations may factor into the weighing analysis. As the Constitution recognizes, not all expression is created equal, and the level of protection to be afforded to any particular expression can vary widely according to the quality of the expression, its subject matter, the motivation behind it, or the form through which it was expressed.

The closer the expression lies to the core values of s. 2(b), including truth-seeking, participation in political decision-making and diversity in the forms of self-fulfillment and human flourishing, the greater the public interest in protecting it. Some speakers seek to contribute to public discourse by countering ignorant or harmful expression with an informed or compassionate response. In s. 2(

b) jurisprudence, this idea of “counter-speech” inheres in the recognition that the open exchange of ideas is a precondition to unlocking the value of free expression. While counter-speech is not necessarily a complete solution to harmful expression, its close proximity to the values at the core of s. 2(

b) is beyond doubt. Counter-speech motivated by the defence of a vulnerable or marginalized group in society also engages the values at the core of s. 15(1); namely, the equal worth and dignity of every individual. Targets of degrading expression belonging to a vulnerable group in society may lack the ability or authority to effectively combat the harmful speech themselves. Discourse can then take on an uneven quality, making protective counter-speech by the group or individual’s more powerful advocates all the more influential and important.

In the instant case, H’s expression is counter-speech motivated by a desire to promote tolerance and respect for a marginalized group in society. H spoke out to counter expression he perceived to be untrue, prejudicial towards transgender and other 2SLGBTQ+ individuals, and potentially damaging to transgender youth. The transgender community is undeniably a marginalized group in Canadian society. The history of transgender individuals in Canada has been marked by discrimination and disadvantage.

Transgender and other gender non-conforming individuals were largely viewed with suspicion and prejudice until the latter half of the 20th century, and have been stereotyped as diseased or confused simply because they identify as transgender. Significant legal advancements in transgender rights have only come in the last 35 years, with most change taking place in the last decade, and judicial recognition of the plight of transgender individuals in Canada is growing in the wake of legislative progress.

Yet, despite some gains, courts and tribunals have recognized that transgender people remain among the most marginalized in Canadian society, and continue to live their lives facing disadvantage, prejudice, stereotyping, and vulnerability. H’s counter-speech fell close to the core of s. 2(b). His expression served a truth-seeking function, and in speaking out, he sought to counter expression that he and others perceived to undermine the equal worth and dignity of marginalized groups. There is a great public interest in protecting H’s freedom of speech on such matters.

The subject matter of H’s speech (commenting on the value of a government initiative, the need for safe and inclusive schools, and the fitness of a candidate for public office), the form in which it was expressed (solicited by the media to present a counter-perspective within an ongoing debate), and the motivation behind it (to combat discriminatory and harmful expression and to protect transgender youth in schools) are all deserving of significant protection.

The chambers judge’s conclusion that the public interest in protecting H’s expression outweighed the public interest in remedying the harm to N should be affirmed. The chambers judge also did not err in concluding that N failed to challenge the validity of the fair comment defence. Section 4(2) (a)(ii) of the PPPA provides that a court must make a dismissal order unless the plaintiff satisfies the court that there are grounds to believe that the defendant has no valid defence in the proceeding. The fair comment defence is premised on the idea that

citizens must be able to openly declare their real opinions on matters of public interest without fear of reprisal in the form of actions for defamation. The fair comment defence has five elements: the comment must be on a matter of public interest; be based on fact; be recognisable as a comment; satisfy an objective test (could any person honestly express that opinion on the proved facts?); and the speaker cannot be actuated by express malice. Consideration of the elements of the fair comment defence requires an assessment of the defamatory words used in the full context surrounding their use.

In the instant case, N failed to adequately challenge the fair comment defence. First, N has not shown grounds to believe that H’s statements lacked a factual basis. To constitute fair comment, a factual basis for the impugned statement must be explicitly or implicitly indicated within the publication itself or the facts must be so notorious as to be already understood by the audience. There is, however, no requirement that the facts support the comment, in the sense of confirming its truth.

At trial, H need not demonstrate that N is bigoted, transphobic, or promoted hatred, as the question is merely whether the statement can be tethered to an adequate factual basis so the reader can be an informed judge. N’s original online post could provide the requisite factual basis for most statements at issue, as N’s views were available to readers and grounded H’s statements. Additionally, this was a high-profile local controversy that spanned over a year, involving two public figures. N’s statements had likely achieved a level of notoriety such that they would have been known to the reading audience.

Furthermore, the chambers judge was entitled to find that the sting of H’s statements was comment and it would have been understood as such by readers. For expression to constitute fair comment, the statement must be one that would be understood by a reasonable reader as a comment, rather than a statement of fact. Context is essential in distinguishing comment from fact. N has not shown grounds to believe that H’s statements would not be seen as a comment in the context of the instant case.

An allegation of bias or prejudice is a debatable assertion as to a state of mind and will typically be classified as a comment. Similarly, an allegation that a politician has not lived up to their obligations is generally understood to be a critique, not a declaration of fact. Finally, accusations of hate speech would not necessarily be understood by ordinary readers as referring to a Criminal Code offence. Such allegations have permeated public discourse in a way that well exceeds their narrow meaning within the legal system.

It is clear, when read in context, that H’s statements were an expression of H’s beliefs based on his own

interpretation of N’s statements. Finally, the chambers judge did not err in his malice assessment. A finding of a subjective honest belief negates the possibility of finding malice; such a finding can be based on the thrust of the defendant’s evidence, read as a whole. Ultimately, the chambers judge found that H’s affidavit made it clear that he honestly believed the views he espoused, and he was entitled to do so. Per Côté J. (dissenting): The appeal should be dismissed.

The question is not whether the Court agrees with either party’s expression, but whether N’s action should be dismissed at this early stage of the proceeding. It should not. N deserves to have his day in court. There is disagreement with the structure of the majority’s analysis, which begins with the public interest weighing exercise and then examines the validity of H’s fair comment defence. That is not how the analysis must be conducted.

When an application is brought under s. 4 of the PPPA , the plaintiff in the proceeding must first overcome a merits-based hurdle by demonstrating that there are grounds to believe that the proceeding has substantial merit and demonstrating that there are grounds to believe that the applicant under the PPPA has no valid defence in the proceeding. Only then should the court conduct the public interest weighing exercise mandated by s. 4(2) (b), which is the final step of the analysis.

In asserting that the order in which a judge chooses to address each of the elements under s. 4(2) is at the discretion of the court, the majority is effectively ignoring the Court’s recent decision in Pointes , and undermining the legislative objective behind s. 137.1 of Ontario’s Courts of Justice Act and s. 4 of the PPPA alike, namely, to ensure that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to vindicate that claim. Under s. 4(2)(a)(ii) of the PPPA , the plaintiff must demonstrate that the defendant has no valid defence in the proceeding.

The standard is not a very demanding one: it requires showing that there is a basis in law and in the record for finding that there is no valid defence, taking into account the stage of the proceeding at which the application is brought. To succeed, the plaintiff does not have to establish that the defendant has no valid defence for every impugned statement; it suffices that a valid defence is unavailable for some statements or even only one. For this reason, it is important to examine the defamatory sting and the context of each of the impugned statements in order to assess the availability of a defence.

This is particularly critical where a fair comment defence is being advanced. Assessing the availability of such a defence requires a careful review of the impugned statement in the context of the publication in which it appeared to determine whether it is recognizable as a comment rather than as a statement of fact. There is a difference between comment or criticism and allegations of fact. A defining feature of a comment is that it is generally incapable of being proven.

Similarly, a comment must be clearly recognizable as such and not be so entangled with allegations of fact that inferences cannot be distinguished from facts. Any ambiguity in this regard must benefit the plaintiff. The inquiry is an objective one aimed at discerning the perception of the reasonable viewer or reader. The chambers judge cursorily examined this issue. He concluded that the impugned statements could not be distinguished from those in WIC Radio v. Simpson , 2008 SCC 40 , [2008] 2 S.C.R. 420, which were found to be comments.

Characterizing speech as a comment or as a statement of fact involves a contextual analysis, the result of which is at most a finding of mixed law and fact. Transposing a finding of mixed law and fact to another case is a questionable practice that should be avoided. In the instant case, there are grounds to believe that the fair comment defence is not available for two of H’s statements because they were made as statements of fact and not comments. Those statements carry the defamatory sting that N engaged in hate speech.

Affirming that N engaged in hate speech is quite different from expressing a judgment or making a remark incapable of proof. Read in their context, such allegations appear similar to allegations of fraud, theft or other criminal conduct that have been found to be statements of fact for which a fair comment defence is not available. At the public interest hurdle under s. 4(2) (

b) of the PPPA , what is required of a plaintiff is not to prove harm or causation but only to provide evidence for the judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link. The seriousness of the harm can be inferred from the gravity of the impugned statements, and allegations of hate speech rank high on the scale of seriousness. Regardless of whether such conduct is characterized as a criminal offence or as the subject matter of a human rights complaint, accusing a person of hate speech or promoting hatred against an identifiable group is extremely damaging to that

person’s reputation. The absence of an apology is another aggravating factor increasing harm, as is the stature of the defendant. The greater thereputation of the defendant, the greater the impact that defamation can be expected to have on the plaintiff. In addition, the context of thepublication and the platform on which the impugned statements were published should have been considered.

The anonymity offered bythe Internet, combined with the increased accessibility and information sharing, can result in greater harm to a person’s reputation.Moreover, it is an error to discount the part played by a defendant in a plaintiff’s harm because others had expressed similar criticismtowards the plaintiff. A definitive determination of a defendant’s

part in a plaintiff’s harm is not required at this stage of the proceeding.Further, the fact that a plaintiff was not silenced by a defendant’s statements does not negate any harm suffered. The role of the court in the public interest weighing exercise under the PPPA is not and should not be to evaluate thesoundness of the parties’ respective positions on an issue. Freedom of expression is content-neutral and would be seriously underminedif the outcome of the weighing exercise depended on the alignment between the views expressed by the defendant and those held by thecourt.

The majority follows an improper path of reasoning when it justifies reinstating the chambers judge’s dismissal order on the basisthat H’s expression promotes equality. Equality is not one of the competing values at play under legislation designed to discourageSLAPPs; the protection of individual reputation and freedom of expression are. Moreover, the promotion of equality is not one of thecore values underpinning freedom of expression.

Assigning any role to the promotion of equality in the assessment of the public interestin protecting expression goes against the doctrine of content neutrality embraced by the Court in its jurisprudence. More importantly, thepromotion of equality is in no way a factor tethered to the text of s. 4(2)(b), and for this reason alone, is not a relevant factor in the publicinterest weighing exercise. Finally, restricting the availability of tort actions for defamation can have a chilling effect.

In the context of defamatorycounter-speech, interpreting s. 4 of the PPPA so as to deprive defamed parties who have suffered serious harm of their day in court couldvery well be detrimental to public debate. It could prevent those who hold controversial or unpopular views from entering the publicarena to share them. This conclusion does not turn the concept of chilling effect on its head. The deprivation, through a court order, of aparty’s right to vindicate a legitimate claim imposes a legal penalty on that party.

In the instant case, the chambers judge erroneously ignored factors aggravating the harm likely to have been or to besuffered by N, despite the fact that they were specifically argued by him. In addition, he gave little consideration to the competing publicinterests and failed to direct his mind to the quality of the expression, which constitutes a reviewable error. The chambers judge alsoerred in failing to consider the chilling effect that the dismissal of N’s claim might have on future expression by others.

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APPEAL from a judgment of the Court of Appeal for British Columbia (Willcock, Fenlon and Voith JJ.A.), 2021 BCCA 222 , 50 B.C.L.R. (6th) 217, 459 D.L.R. (4th) 121, [2021] 12 W.W.R. 488, 71 C.C.E.L. (4th) 191, 74 C.C.L.T. (4th) 216, [2021] B.C.J. No. 1245 (QL), 2021 CarswellBC 1816 (WL), setting aside a decision of Ross J., 2019 BCSC 2028 , 59 C.C.E.L. (4th) 205, 61 C.C.L.T. (4th) 107, [2019] B.C.J. No. 2269 (QL), 2019 CarswellBC 3513 (WL). Appeal allowed, Côté J. dissenting. Robyn Trask and Michael Sobkin , for the appellant. Paul E. Jaffe , for the respondent.

Chantelle Rajotte , Emily Lapper and Steven Davis , for the intervener the Attorney General of British Columbia. Brendan MacArthur-Stevens and Renee Reichelt , for the interveners QMUNITY and the Skipping Stone Scholarship Foundation.

Caroline Carrasco , for the intervener the Canadian Human Rights Commission. Lillianne Cadieux-Shaw and Alexi N. Wood , for the intervener the Canadian Civil Liberties Association. Dustin Klaudt , M. Tristan Miller and Grace McDonell , for the interveners the Community-Based Research Centre and the Canadian Centre for Gender & Sexual Diversity. Adrienne S. Smith and Kate Feeney , for the intervener the West Coast Legal Education and Action Fund. Jitesh M. Mistry and Thom Yachnin , for the intervener the B.C. General Employees’ Union. Adam Goldenberg and Solomon McKenzie , for the intervener Egale Canada.

Justin Safayeni and Yadesha Satheaswaran , for the intervener the Centre for Free Expression. The judgment of Wagner C.J. and Karakatsanis, Rowe, Martin, Jamal and O’Bonsawin JJ. was delivered by Karakatsanis J. — I. Introduction [ 1 ] At the core of defamation law are two competing values: freedom of expression and the protection of reputation. Each is essential to maintaining a functional democracy.

This appeal presents an opportunity to clarify the proper equilibrium between these two values where the expression at issue relates to a matter of public interest. [ 2 ] Defamation suits are a way to vindicate an individual’s personal or professional reputation in the face of attack, but can have the undesirable effect of suppressing the open debate that is the cornerstone of a free and democratic society.

For this reason, certain provincial legislatures have targeted strategic lawsuits against public participation (SLAPPs), or actions that disproportionately suppress free expression on matters of public interest.

This case concerns the application of s. 4 of British Columbia’s anti-SLAPP statute, the Protection of Public Participation Act , S.B.C. 2019, c. 3 ( PPPA ). [ 3 ] The defamation suit at the heart of this proceeding arises out of a high-profile public debate — spanning traditional print media, the internet, rallies, protests, and a local election — on British Columbia’s efforts to combat discrimination against transgender and other 2SLGBTQ+ youth. [ 4 ] The parties are both local public figures.

Barry Neufeld, a public school board trustee in Chilliwack, British Columbia, made online posts criticizing a provincial government initiative designed to equip educators to instruct students about gender identity and sexual orientation. Mr. Neufeld’s posts triggered significant local controversy, spurring protests and calls for Mr. Neufeld to resign. Many considered his comments to be derogatory of transgender and other 2SLGBTQ+ individuals.

Glen Hansman, a gay man, teacher, and former president of the British Columbia Teachers’ Federation (BCTF), a large teachers’ union in the province, was prominent among the dissenting voices and made statements to media. Mr. Hansman called Mr. Neufeld’s views bigoted, transphobic, and hateful; accused him of undermining safety and inclusivity for transgender and other 2SLGBTQ+ students in schools; and questioned whether he was suitable to hold elected office. [ 5 ] Mr. Neufeld sued for defamation. Mr. Hansman then applied to have Mr. Neufeld’s defamation action dismissed as a SLAPP under s. 4 of the PPPA .

The core feature of the PPPA is that it instructs courts to dismiss even meritorious claims where the public interest in protecting the defendant’s freedom of expression outweighs the public interest in remedying the harm done to the plaintiff. It also requires the plaintiff to meet a merits threshold by demonstrating grounds to believe that the underlying proceeding has substantial merit and that the defendant has no valid defence in the proceeding. [ 6 ] The chambers judge found that Mr.

Neufeld’s defamation action had the effect of unduly suppressing debate on matters of public interest and dismissed the suit ( 2019 BCSC 2028 , 59 C.C.E.L. (4th) 205). The chambers judge held both that Mr. Hansman had a valid fair comment defence and that the value in protecting his expression outweighed the resulting harm done to Mr. Neufeld. The Court of Appeal disagreed on both counts and reinstated the action ( 2021 BCCA 222 , 50 B.C.L.R. (6th) 217). [ 7 ] I agree with the chambers judge. Mr.

Neufeld argued in the courts below and in this Court that he only criticized a policy; he never expressed hatred towards the transgender community, nor did his words create an unsafe school environment for transgender students. But his submissions miss the mark. Mr. Neufeld’s right to criticize a government initiative is not in dispute. Rather, the central issue is whether Mr. Hansman had a right to respond to Mr. Neufeld in the way he chose without the threat of civil liability. In my view, he did. [ 8 ] The fair comment defence asks whether a person could honestly hold the views Mr.

Hansman expressed and whether Mr. Hansman’s statements related to a matter of public interest and were recognizable as comments based on facts. The chambers judge found that Mr. Neufeld did not adequately challenge any of these elements and he was entitled to dismiss the proceeding on this basis. [ 9 ] Even if Mr. Neufeld had discharged his burden as to the fair comment defence, however, the chambers judge was entitled to dismiss the defamation claim because the public interest in protecting Mr. Hansman’s expression is not outweighed by the limited harm to Mr. Neufeld. Mr.

Hansman’s words were not a disproportionate or gratuitous response to Mr. Neufeld’s statements, and there is a substantial public interest in protecting his counter-speech. Mr. Hansman spoke out to counter expression that he and others perceived to be discriminatory and harmful towards transgender and other 2SLGBTQ+ youth — groups especially vulnerable to expression that reduces their worth and dignity in the eyes of society and questions their very identity. Not only does protecting Mr.

Hansman’s expression preserve free debate on matters of public interest, it also promotes equality, another fundamental democratic value. [ 10 ] I would restore the order of the chambers judge dismissing the defamation action. II. Background [ 11 ] The public debate from which this appeal arises centered on provincial efforts to promote inclusion and counter discrimination against transgender and other 2SLGBTQ+ people in schools. In 2016, British Columbia amended its Human Rights Code , R.S.B.C. 1996, c. 210 , to include a prohibition against discrimination based on “gender identity or expression”.

Gender identity refers to one’s deeply felt and inherent sense of self in relation to gender, or the social system of roles, behaviours, and expressions associated with sex at birth. [1] Gender identity is distinct from gender expression, which refers to the way one outwardly expresses gender, through clothes, behaviour, speech, pronouns, and more. [2] While gender was once understood only in the binary of “male” or “female”, today, society’s understanding of gender has broadened to encompass a spectrum of gender identities, modes of expression, and related terminology, all of which continue to evolve. [3] [ 12 ] Transgender people are individuals whose gender identity does not align with the sex assigned to them at birth. [4] In April 2022, Canada became the first country in the world to publish census data on transgender and non-binary people. [5] The census estimated that, as of May 2021, there were over 100,000 transgender or non-binary people aged 15 and older in Canada — about 1 out of every 300 people. [ 13 ] Shortly after British Columbia’s amendment to its Human Rights Code in 2016, the Ministry of Education ordered school boards in British Columbia to add “gender identity or expression” as a prohibited ground of discrimination in their student codes of conduct.

The Ministry also collaborated with others, including the BCTF, to develop Sexual Orientation and Gender Identity 123 (SOGI 123), an initiative to guide educators on instruction about sexual orientation and gender identity. The aim of SOGI 123 is to foster inclusion and respect for students who, because of their identity or expression, may face discrimination in British Columbia schools. [ 14 ] Mr. Neufeld publicly criticized SOGI 123. His first critique was posted on Facebook on October 23, 2017.

In it, he called SOGI 123 a “weapon of propaganda” that teaches the “biologically absurd theory” that “gender is not biologically determined, but is a social construct” (A.R., vol. III, at p. 16). He also lamented that children were “being taught that heterosexual marriage is no longer the norm” (p. 16). He voiced his support for “traditional family values” and heralded countries like Russia and Paraguay, which have “had the guts to stand up to these radical cultural nihilists” (p. 16).

He acknowledged that he posted at the risk of “being labelled a bigoted homophobe”, but felt his voice needed to be heard (p. 16). [ 15 ] Mr. Neufeld’s post was met with quick and forceful criticism. Within hours, major media outlets reported on the post, quoting members of the public, educational professionals, and other public figures denouncing Mr. Neufeld’s views. The former chair of the Vancouver School Board called for Mr. Neufeld to resign and apologize. The Chilliwack District Parent Advisory Council chair said that Mr.

Neufeld’s “comments promote the exclusion and isolation of a growing subset of children, including those with same-sex parents” and transgender students in contravention of Mr. Neufeld’s “duty to ensure a safe and positive learning environment for all” (A.R., vol. III, at p. 144). [ 16 ] Mr. Hansman was among Mr. Neufeld’s more vocal critics. At issue in this appeal are 11 publications quoting statements made by Mr. Hansman to the media in his capacity as president of the BCTF. Mr.

Hansman has admitted making the statements as alleged (Chambers Judge’s Reasons, at para. 44). [ 17 ] The first three were published the day after Mr. Neufeld’s Facebook post, when Mr. Hansman was contacted by the media for comment. An

article by the Vancouver Sun included the following quote: [Mr. Neufeld] should step down or be removed . . . . It’s not OK. The public school system in this province and in Canada have the obligation to ensure safe and inclusive school environments for all kids regardless of race, nationality, or religion. They have to proactively address sexism and misogyny, they have to address transphobia and homophobia and racism. And Mr. Neufeld, I’m doubtful that Mr. Neufeld did not know that. I’m doubtful that he’s not aware if he’s been around as a trustee for some time. (Amended notice of civil claim, A.R., vol.

I, p. 80 (ANCC), at para. 14) (Statement 1) [ 18 ] Then, in an interview with Global News, Mr. Hansman described Mr. Neufeld’s views as “intolerant”, “bigoted” and stated that “whether [Mr. Neufeld] likes it or not, members of the LGBTQ school community are here to stay” (ANCC, at para. 15) (Statement 2). [ 19 ] Finally, a Huffington Post

article reported that Mr. Hansman “said Neufeld should resign because he ha[d] violated his obligations as a school board trustee to ensure that students and staff have a safe, inclusive environment (ANCC, at para. 16). This

article also reported that “Hansman said trustees with faith-based views need to figure out how they’ll work in a secular public school

system” or should look to work elsewhere (ANCC, at para. 16) (Statement 3). [ 20 ] Others contributed to the chorus of public critiques condemning Mr. Neufeld’s Facebook post, including the president of the British Columbia School Trustees Association, other members of the Chilliwack School Board, transgender activists, and the Minister of Education, who called Mr. Neufeld’s views “outdated and bigoted” (A.R., vol. III, at p. 169). Many people posted statements of opposition or statements of support on Mr. Neufeld’s Facebook page. [ 21 ] Two days after his post, Mr.

Neufeld issued a public apology on his Facebook page, in which he stated that he was “critical of an educational resource, not individuals” and that he “believe[s] in inclusion and a safe learning environment” for all students (C.A. Reasons, at para. 12). [ 22 ] But that was not the end of the matter. Both Mr. Neufeld and Mr. Hansman continued to express themselves publicly during the next year. Others also continued to speak out against Mr. Neufeld. [ 23 ] About a month after his original post, Mr.

Neufeld spoke at a rally organized by a group called Culture Guard, which has a mandate to end the “political tyranny of politically-correct idiotology” (A.R., vol. IV, at p. 70). As part of its efforts, Culture Guard seeks to “STOP SOGI 123” (p. 87). During his speech, Mr. Neufeld described SOGI 123 as “an institutionalization of codependency: encouraging and enabling dysfunctional behavior and thinking patterns” and as “coddling and encouraging what I regard as the sexual addiction of gender confusion” (A.R., vol. V, at p. 10).

He claimed that using SOGI 123 resources in classrooms amounts to “[g]aslighting” and an “attack [on] the foundation of a child’s being which is child abuse” (p. 10). [ 24 ] Mr. Neufeld’s remarks at the rally were not limited to SOGI 123. He also commented that “gender is . . . rooted in biology”, and lamented that media coverage of famous transgender individuals has spurred a “new fad” of “gender confusion” (p. 11).

He stated that “rushing into the use of puberty blockers, hormone therapy and gender reassignment [is] child abuse” and referred to gender reassignment surgery as “lopping off perfectly good body parts” (pp. 10-11). [ 25 ] In January 2018, the Chilliwack Teachers’ Association (CTA) passed a motion of non-confidence in the Chilliwack Board of Education for its failure to intervene in the wake of Mr. Neufeld’s statements about SOGI 123. In a letter to the media, the CTA cited growing concerns for “the emotional and physical safety of students, staff and teachers” (A.R., vol. IV, at p. 157). Mr.

Hansman was quoted in the letter as stating that: “[s]ometimes our beliefs, values, and responsibilities as professional educators are challenged by those who promote hatred” (ANCC, at para. 20) (Statement 4). That letter was published in two local newspapers. [ 26 ] Subsequently, the Chilliwack School Board and the Minister of Education asked Mr. Neufeld to resign from office. He refused and issued a press release declaring that he supports all students, regardless of sexual orientation, gender identity, race, religion, or background.

He concluded: I have simply taken issue with one facet of the SOGI 1-2-3 learning resources; the teaching of the controversial gender-fluid theory as fact. Despite the pressure to resign, I believe that I must remain on the Board to be a lonely voice protecting impressionable children who I believe will be confused and harmed, resulting in increased occurrences of gender dysphoria in at-risk children. (A.R., vol. V, at p. 18) [ 27 ] Gender dysphoria is a clinical diagnosis received by some transgender and other gender diverse people.

It denotes an “aversion to some or all of [the] physical characteristics or social roles” associated with the sex one was assigned at birth. [6] [ 28 ] At the end of January 2018, the BCTF and the CTA jointly filed a complaint against Mr. Neufeld in the British Columbia Human Rights Tribunal, alleging that Mr. Neufeld had violated British Columbia’s Human Rights Code . The complaint alleges that Mr. Neufeld created a discriminatory work environment for union members, and published statements that are discriminatory or are “likely to expose transgender individuals to hatred” (A.R., vol. II, at p. 116).

The local branch of the Canadian Union of Public Employees (CUPE) had filed a similar complaint against Mr. Neufeld and the Chilliwack School Board earlier that month. [ 29 ] In April 2018, Mr. Hansman was interviewed by various media outlets about the teachers’ human rights complaint. In one article, Mr. Hansman is quoted as calling Mr. Neufeld’s comments “transphobic” and alleging that Mr. Neufeld was “creating a school environment for [BCTF] members and students that is discriminatory and hateful” (ANCC, at para. 24) (Statement 5). In another, Mr. Hansman is quoted as saying that Mr.

Neufeld “tip toed quite far into hate speech” and did not fulfill his duty to ensure student safety (para. 25) (Statement 6). A third

article said the human rights complaint referred to Mr. Neufeld’s comments as “hateful” and that they created an unsafe school environment, and quoted Mr. Hansman as stating that Mr. Neufeld should not be “anywhere near students” (para. 26) (Statement 7). [ 30 ] Also in April, duelling rallies were held outside the BCTF office, one supporting SOGI 123 and another, organized by Culture Guard, against it. When interviewed by media about the rallies, Mr. Hansman said he was glad to see the public show of support for SOGI 123, given “the hateful comments” made by Mr.

Neufeld and the need for schools to be free from discrimination and safe for all students (ANCC, at para. 28) (Statement 8). [ 31 ] As the October 2018 Chilliwack civic election approached, Mr. Hansman was interviewed by media about his thoughts on an anti-SOGI slate of candidates vying for seats on the Chilliwack School Board. In September, an

article was posted by a local news outlet quoting Mr. Hansman as stating: It is extremely problematic to have somebody who is running as a school trustee continuing to spread hate about LGBTQ people — especially trans people . . . .

(ANCC, at para. 29) (Statement 9) Mr. Hansman also commented that racism and misogyny still exist in the British Columbia school system, and that trustee candidates need “to commit to eradicating those things, not spreading hate and not spreading bigotry” (A.R., vol. II, at p. 34). The

article did not name Mr. Neufeld or any other candidate, but noted that “some candidates” had shared “controversial views surrounding issues like refugees and LGBTQ supports in schools” (p. 33). [ 32 ] One month before election day, counsel for Mr. Neufeld wrote to Mr. Hansman demanding that he retract the statements he had made “over a number of months” about Mr. Neufeld (A.R., vol. II, at p. 139). The letter stated that proceedings would be launched unless a retraction and an apology were received within 10 days. [ 33 ] The next day, Mr. Neufeld declared that he was suing Mr.

Hansman for defamation in an interview with a local news outlet. Counsel for Mr. Hansman wrote to Mr. Neufeld, explaining that Mr. Hansman would not be issuing an apology, given that interview. The letter contended that the request for an apology was “insincere at best, and most likely a political ploy” given that, as Mr. Neufeld was “demanding an apology as a way to avoid litigation”, he was simultaneously “declaring his intention to proceed with that litigation” (A.R., vol. II, at pp. 147-48). [ 34 ] Eight days before election day, Mr. Neufeld filed and served his defamation action against Mr. Hansman.

The media picked up on the lawsuit and contacted Mr. Hansman for comment. Mr. Hansman told a local newspaper that he stood by his statements and that, along with Mr. Neufeld’s remarks about SOGI 123, “[h]is other misogynist and problematic statements reported by Press Progress are also cause for alarm and not becoming of a school trustee” (ANCC, at para. 42) (Statement 10). [ 35 ] The Press Progress

article to which Mr. Hansman was referring was entitled “This Man is Probably The Worst School Trustee in British Columbia” (A.R., vol. II, at p. 46). In addition to describing Mr. Neufeld’s campaign against SOGI 123, the

article included screenshots of other past Facebook posts by Mr. Neufeld, including one in which Mr. Neufeld contended that male seminal fluid is “[o]ne of the most under-rated natural anti-depressants for women” (p. 49). He claimed that women who regularly have unprotected sex are happier and less suicidal than women who have protected sex, sharing a link to an

article about a controversial study that had found the same. The Press Progress

article quoted another Facebook post in which Mr. Neufeld wrote that he and other trustee candidates “are worried about the safety of children who are being taught silly ideas that they can choose what gender they can be and are being told that they must approve of gay ‘rainbow’ families” (p. 50). Mr. Neufeld criticized Christian churches for being “slow to stand up against this evil agenda” and claimed that more tolerant churches were infected with “Pink Christianity” (p. 50). [ 36 ] Mr. Neufeld was re-elected to another term on the Chilliwack School Board. Mr.

Hansman was interviewed about the results of the election, where he spoke about the human rights complaint the BCTF had filed against Mr. Neufeld, and declared that “[h]ate and bigotry have no place on school boards” (ANCC, at para. 44) (Statement 11). [ 37 ] Mr. Neufeld’s defamation action was set for hearing in December 2019. In March, the PPPA was enacted. Mr. Hansman moved under s. 4 of the PPPA to dismiss Mr. Neufeld’s defamation action against him.

Section 4 creates a pretrial screening mechanism that instructs a judge to dismiss an action arising from expression on a matter of public interest unless the plaintiff can satisfy the judge that their action has substantial merit; the defendant has no valid defence in the proceeding; and the harm to the plaintiff as a result of the defendant’s expression is serious enough to outweigh the public interest in protecting that expression. III. Procedural History A. British Columbia Supreme Court, 2019 BCSC 2028 , 59 C.C.E.L. (4th) 205 (Ross J.) [ 38 ] The chambers judge granted Mr.

Hansman’s application for dismissal. He concluded that Mr. Neufeld had not established grounds to believe that Mr. Hansman had no valid defences in the proceeding (para. 135). He held that Mr. Hansman had a valid fair comment defence, relying on this Court’s reasoning in WIC Radio Ltd. v. Simpson , 2008 SCC 40 , [2008] 2 S.C.R. 420, and on the lack of a compelling challenge to the defence by Mr.

Neufeld (paras. 126 and 137). [ 39 ] If he was wrong as to the validity of the fair comment defence, the chambers judge considered the final step of his analysis: the public interest weighing exercise (paras. 144 et seq.). He determined that the public interest in protecting Mr. Hansman’s expression outweighed the harm likely suffered by Mr. Neufeld (para. 145). Mr. Neufeld had “submitted almost no evidence of damage suffered” (para. 161), nor did he offer any evidence that would allow the judge to draw a causal link between any alleged harm and Mr.

Hansman’s statements (paras. 147-50 and 158). [ 40 ] The chambers judge considered that many of Mr. Hansman’s statements either commented on the need for safe and inclusive schools or did not mention Mr. Neufeld. Those statements deserved significant protection. The weighing exercise thus favoured dismissing the action (para. 160). B. Court of Appeal for British Columbia, 2021 BCCA 222 , 50 B.C.L.R. (6th) 217 (Willcock, Fenlon and Voith JJ.A.) [ 41 ] Fenlon J.A., writing for the Court of Appeal, allowed the appeal and reinstated the defamation action.

She concluded that the chambers judge erred in his assessment of the fair comment defence in several ways. The chambers judge erred in relying on WIC Radio , given material differences between that case and this one, and by “work[ing] from a

summary of the type of comments made by Mr. Hansman rather than addressing the specific expressions” (paras. 26-27 and 34). This analytical approach caused the chambers judge to overlook elements of the fair comment defence (paras. 27-29). In Fenlon J.A.’s opinion, there were grounds to believe that several statements were not based on fact, making the defence unavailable. Fenlon J.A. further held that the chambers judge erred in his assessment of malice. [ 42 ] Fenlon J.A. also concluded that the chambers judge erred in the public interest weighing analysis.

First, the chambers judge focused on the subject matter of Mr. Hansman’s statements to the exclusion of the defamatory sting of those statements (paras. 61- 62). Second, the chambers judge erred in his harm analysis by “fail[ing] to give full effect to the presumption of damages in defamation

and wrongly assum[ing] causation would be difficult to establish because others had made similar comments about Mr. Neufeld” (para. 51). [ 43 ] Finally, Fenlon J.A. held that the chambers judge ought to have considered as part of the weighing analysis “the potential chilling effect on future expression” by the plaintiff, or others in his position, about “this or other highly charged matters of public interest” that might occur if the action were dismissed (para. 65). IV. Analysis [ 44 ] This appeal presents two issues: (

i) Did the chambers judge err in the weighing exercise set out in s. 4(2) (

b) of the PPPA by concluding that the public interest in protecting Mr. Hansman’s expression mandates dismissal of the underlying action? (ii) Did the chambers judge err in finding that Mr. Neufeld did not show, under s. 4(2) (a)(ii) of the PPPA , grounds to believe Mr. Hansman had no valid fair comment defence? [ 45 ] Answering either of these questions in the negative would result in the dismissal of the action. I would answer “no” to both. The Court of Appeal should not have overturned the chambers judge’s findings on the fair comment defence. More significantly, even if Mr.

Neufeld had disproved the validity of Mr. Hansman’s fair comment defence, the public interest in protecting Mr. Hansman’s expression mandates dismissal of the underlying action. Before turning to the two questions before the Court, I summarize the applicable statutory framework. A.

Section 4 of the PPPA [ 46 ] A SLAPP is a tactical action that seeks to suppress expression on matters of public interest. The goal of a SLAPP is not necessarily a legal victory, but a political one: to intimidate and suppress criticism with the threat of costly litigation (V. Pelletier, Strategic Lawsuits against Public Participation (SLAPPs) (and other abusive lawsuits) , August 2008 (online), at para. 4). A key feature of a SLAPP is thus the strategic use of the legal system to silence contrary viewpoints.

Binnie J. aptly described the problem posed by such litigious tactics in WIC Radio : The function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression.

There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. . . .When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation. Of course “chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship.

Public controversy can be a rough trade, and the law needs to accommodate its requirements. [Emphasis in original; para. 15.] [ 47 ] SLAPPs first emerged in the United States as a tendency of some powerful businesses to use the threat of litigation to frustrate public mobilization efforts against them ( R. A. Macdonald, P. Noreau and D. Jutras , Les poursuites stratégiques contre la mobilisation publique — les poursuites-bâillons (SLAPP) (2007), at p. 2).

Because of these origins, the archetypal SLAPP is generally described as a powerful or wealthy plaintiff, who has suffered only nominal damage, using litigation against a comparatively under- resourced defendant to silence criticism (see Platnick v. Bent , 2018 ONCA 687 , 426 D.L.R. (4th) 60, at para. 99 ). [ 48 ] But SLAPPs do not always embody the hallmarks of the archetype. A SLAPP may be initiated by the rich and powerful, but not always. Similarly, the plaintiff may not have a history of using litigation or the threat of litigation to silence critics.

In any case, however, the consistent defining feature of a SLAPP is that the proceeding acts to silence the defendant, and more broadly, to suppress debate on matters of public interest, rather than to remedy serious harm suffered by the plaintiff. [ 49 ] Anti-SLAPP legislation, such as the PPPA , creates a procedure for screening proceedings arising from expression on matters of public interest at an early stage. Legislative anti-SLAPP solutions have now been passed into law in British Columbia, Ontario, and Quebec.

In Ontario, the Protection of Public Participation Act, 2015 , S.O. 2015, c. 23, s. 3, amends the province’s Courts of Justice Act , R.S.O. 1990, c. C.43 , by adding s. 137.1 , which introduces a pretrial screening mechanism designed to weed out SLAPPs. This Court recently analyzed s. 137.1 in two decisions released concurrently: 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22 , [2020] 2 S.C.R. 587, and Platnick v.

Bent , 2020 SCC 23 , [2020] 2 S.C.R. 645. [ 50 ] British Columbia’s PPPA was modelled after the Uniform Protection of Public Participation Act (2017) , May 1, 2017 (online), adopted by the Uniform Law Conference of Canada, which, in turn, is based on Ontario’s statute. Like s. 137.1 of Ontario’s Courts of Justice Act , s. 4 of the PPPA creates a pretrial screening procedure that enables a defendant to apply to the court to dismiss a proceeding against them, provided certain criteria are satisfied.

Section 4 reads: Application to court 4

(1) In a proceeding, a person against whom the proceeding has been brought may apply for a dismissal order under subsection (2) on the basis that (

a) the proceeding arises from an expression made by the applicant, and (

b) the expression relates to a matter of public interest.

(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 (

a) there are grounds to believe that (

i) the proceeding has substantial merit, and (ii) the applicant has no valid defence in the proceeding, and (

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. [ 51 ]

Section 4 is nearly identical to the pretrial screening mechanism established by subss. (3) and (4) of s. 137.1. The core feature of both laws is the recognition that even claims with substantial merit will be dismissed where the public interest in preserving free debate outweighs the harm to the plaintiff that the litigation purports to address. In this way, anti-SLAPP legislation instructs judges to deny claimants a day in court on a meritorious claim, given a more compelling social goal ( Pointes , at para. 62). [ 52 ] Given the substantial similarity between the Ontario and British Columbia laws, this Court’s

interpretation of s. 137.1 in Pointes and Bent applies with equal force to s. 4 of the PPPA . [ 53 ] A s. 4 application first requires the applicant (the defendant) to prove, on a balance of probabilities, that the proceeding arises from expression that relates to a matter of public interest (s. 4(1); see Pointes , at paras. 18 and 31).

If the defendant does so, the onus shifts to the respondent (the plaintiff) under s. 4(2) to satisfy the court there are grounds to believe that: (1) the proceeding has substantial merit ( s. 4(2) (a)(i)), and (2) the defences raised by the defendant are not valid, in that they can be said to have no real prospect of success ( s. 4(2) (a)(ii)). If the court is not satisfied the plaintiff has met their onus as to one or both criteria, it must dismiss the proceeding.

Even if, however, the plaintiff meets their burden, the court must conduct a public interest weighing exercise under s. 4(2) (b), in which the plaintiff must satisfy the court that the harm they are likely to have suffered or are likely to suffer due to the defendant’s expression outweighs the public interest in protecting that expression. In other words, once the court is satisfied that the proceeding arises from expression that relates to a matter of public interest, it must dismiss the proceeding if the plaintiff does not meet its onus as to either s. 4(2) (

a) or (b). The order in which a judge chooses to address each of the elements under s. 4(2) is, of course, at the discretion of the court. [ 54 ] Only the “no valid defence” requirement ( s. 4(2) (a)(ii)) and the public interest weighing exercise ( s. 4(2) (b)) are at issue in this appeal. [ 55 ] As with a motion filed under s. 137.1, a s. 4 motion has evidentiary requirements distinct from other preliminary motions. A motion for

summary judgment, for example, permits the parties to file an extensive record, while a motion to strike is adjudicated based on the pleadings alone.

Section 4, by contrast, contemplates that parties will put forward a record beyond the pleadings, though a limited one, given that an anti-SLAPP motion is not the place for an ultimate adjudication of the issues ( Pointes , at para. 38). The PPPA provides that evidence must be given by affidavit and the affiant may be called for limited cross-examination (see s. 9(4) and (5) ). [ 56 ] Absent reviewable error, an application judge’s determination on a s. 4 motion is entitled to deference ( Bent , at para. 77, citing Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235, at paras. 8 and 36 ). B.

Issue 1: Public Interest Weighing [ 57 ] The key issue in the appeal before us is whether the chambers judge erred in the public interest weighing exercise under s. 4(2)(b). This issue was the most contentious in this Court, and invited considerable attention from parties and interveners, alike. Accordingly, although the chambers judge addressed the issues in a different order, I evaluate his findings as to the public interest weighing exercise before turning to his conclusion that Mr.

Hansman had a valid defence in the proceeding. [ 58 ] Even when a plaintiff shows the proceeding has substantial merit and the defendant has no valid defence, “it remains vulnerable to

summary dismissal as a result of the public interest weighing exercise . . ., which provides courts with a robust backstop to protect freedom of expression” ( Pointes , at para. 53). Pointes described this weighing exercise as the core of the analysis, as it allows the court to strike an appropriate balance between the protection of individual reputation and freedom of expression, the competing values at the heart of anti-SLAPP legislation. [ 59 ] Section 4(2)(

b) requires the plaintiff to prove on a balance of probabilities that — due to “the harm likely to have been or to be suffered” by the plaintiff as a result of the defendant’s expression — the public interest in allowing the proceeding to continue outweighs the proceeding’s “deleterious effects on expression and public participation” ( Pointes , at para. 82). [ 60 ] In Pointes , this Court outlined several factors that may help judges undertake the weighing exercise, provided those factors can be “tethered to the text of [the provision] and the considerations explicitly contemplated by the legislature to conduct the weighing exercise” (para. 80): For example, the following factors, in no particular order of importance, may be relevant for the motion judge to consider: the importance of the expression, the history of litigation between the parties, broader or collateral effects on other expressions on matters of public interest, the potential chilling effect on future expression either by a party or by others, the defendant’s history of activism or advocacy in the public interest, any disproportion between the resources being used in the lawsuit and the harm caused or the expected damages award, and the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation. [Emphasis in original; para. 80.] [ 61 ] The chambers judge found that Mr.

Neufeld had not shown harm substantial enough to outweigh the significant

public interest in Mr. Hansman’s expression. The Court of Appeal held that the chambers judge had erred both in his analysis of the harm to Mr. Neufeld and in his assessment of the public interest in protecting Mr. Hansman’s expression.

Specifically, the Court of Appeal found the chambers judge ought to have considered as part of the harm analysis “the potential chilling effect on future expression by” potential plaintiffs who might wish to engage in highly charged public debates, but would opt not to “for fear of being inveighed with negative labels and accusations of hate speech with no opportunity to protect their reputation” (para. 65). Finally, the Court of Appeal held that the chambers judge imposed too great a burden on Mr. Neufeld to prove harm and erred in affording Mr. Hansman’s speech significant protection.

On this basis, and without conducting any explicit weighing, the Court of Appeal determined that Mr. Neufeld’s action deserved to go on to a trial. [ 62 ] As I explain below, I disagree with the Court of Appeal both as to the extent of the harm to Mr. Neufeld and as to the public interest in protecting Mr. Hansman’s expression. First, Mr. Neufeld failed to identify any specific harm flowing from the statements serious enough to outweigh the public interest in protecting Mr. Hansman’s expression. Second, the Court of Appeal’s consideration of the “chilling effect” factor was divorced from a proper

interpretation of s. 4(2)(

b) and runs contrary to how a chilling effect has been conceived of in freedom of expression jurisprudence. Third, Mr. Hansman’s expression is counter-speech motivated by a desire to promote tolerance and respect for a marginalized group in society. His expression is deserving of significant protection. I would affirm the chambers judge’s conclusion that the public interest in protecting Mr. Hansman’s expression outweighed the public interest in remedying the harm to Mr. Neufeld.

(1) Harm Likely to Have Been or to Be Suffered by the Plaintiff as a Result of the Defendant’s Expression [ 63 ] Under s. 4(2)(b), the factor to be considered in favour of the public interest in continuing the proceeding is the likely harm to the plaintiff as a result of the defendant’s expression. (

a) Evidence of Harm and Causation [ 64 ] Mr. Neufeld pleaded generally that he suffered reputational harm and associated emotional distress due to Mr. Hansman’s statements. He contended that these assertions were corroborated by a few examples of steps taken against him by other entities: the Chilliwack School Board sought his resignation and directed him to stay away from schools (he refused and continued to serve as a trustee); he was uninvited from an annual trustee meeting; and he was uninvited from delivering high school commencement addresses. Mr.

Neufeld also argued that harm could be inferred based on circumstantial factors, including the identity of the accuser, the breadth, and distribution of the statements, and the republication of the statements (Chambers Judge’s Reasons, at para. 155). [ 65 ] The chambers judge recognized that Mr. Neufeld was not expected to present a fully developed damages brief on a s. 4 application (para. 157). Still, he found that Mr. Neufeld had presented only “bare assertions” of harm, leaving him with “precious little evidence” to weigh on Mr. Neufeld’s side of the equation under s. 4(2)(b) (paras. 147 and 152).

He found further that, “apart from one paragraph in his affidavit”, Mr. Neufeld presented no evidence that would link the minimal harm he alleged to Mr. Hansman’s statements (para. 158). [ 66 ] The Court of Appeal found two errors with the chambers judge’s analysis. First, the chambers judge failed to give effect to the general principle that damages are presumed in defamation law (para. 51). The Court of Appeal also noted that Mr. Neufeld had alleged examples of reputational harm and argued that harm could be inferred based on circumstantial factors (paras. 57-58).

Second, the chambers judge erred by assuming causation would be difficult to establish because others had made similar statements about Mr. Neufeld (paras. 51-59). I disagree. [ 67 ] Although general damages are presumed in defamation law, s. 4(2)(

b) prescribes a weighing exercise which requires that the harm to the plaintiff be serious enough to outweigh the public interest in protecting the defendant’s expression. While the presumption of damages can establish the existence of harm, it cannot establish that the harm is “serious” (see, e.g., Lachaux v. Independent Print Ltd. , [2019] UKSC 27, [2020] A.C. 612, at para. 13 ; see also United Soils Management Ltd. v. Mohammed , 2019 ONCA 128 , 23 C.E.L.R. (4th) 11, at para. 22 ; Levant v. DeMelle , 2022 ONCA 79 , 79 C.P.C. (8th) 437, at para. 68 ).

To hold otherwise would be to presumptively tip the scales in favour of the plaintiff in defamation cases and effectively gut the weighing exercise. Rather, to succeed on the weighing exercise, a plaintiff must provide evidence that enables the judge “to draw an inference of likelihood” of harm of a magnitude sufficient to outweigh the public interest in protecting the defendant’s expression ( Pointes , at para. 71; Bent , at para. 154).

Presumed general damages are insufficient for this purpose, as are bare assertions of harm. [ 68 ] Even where the extent of harm suffered by the plaintiff is serious, however, the legislation also requires some evidence that enables the judge to infer a causal link between the defendant’s expression and the harm suffered ( Pointes , at para. 71).

Where the defendant is not the only one speaking out against the plaintiff, inferring a causal link between the defendant’s expression and the harm suffered by the plaintiff becomes both more important (para. 72), and more difficult. [ 69 ] The chambers judge’s reasons on this issue are more

summary because he had already concluded that Mr. Neufeld did not discharge his burden regarding the fair comment defence, and he considered the public interest weighing exercise as an alternative argument. Thus, he did not specifically deal with the relevant circumstantial arguments that Mr. Neufeld made in support of the extent of the harm he suffered. Still, the judge’s ultimate conclusion on the record is clear. Even considering the circumstantial factors that Mr. Neufeld alleged, there is no basis to disturb the judge’s assessment of the harm to Mr. Neufeld.

And as the judge recognized, other circumstantial factors clearly pointed to a conclusion that Mr. Neufeld had suffered limited reputational harm: M

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