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'Chilling effect' of comments against trustee Barry Neufeld revive defamation suit

VANCOUVER — A defamation lawsuit by a school trustee in Chilliwack, B.C., will proceed against the former president of a teachers union after the B.C. Court of Appeal overturned a lower court ruling. 

In a unanimous decision, three justices of the Appeal Court say the trial judge’s rejection of Barry Neufeld’s defamation case “failed to consider the chilling effect” comments made by Glen Hansman could have on public debate, and that the judge erred in assessing whether there was likely a valid defence of fair comment.

The court says Hansman, who was then the president of the BC Teachers’ Federation, made “highly critical” comments after Neufeld issued negative statements about the way a program designed to teach children about sexual orientation was being implemented in the province. 

Writing for the panel, Justice Lauri Ann Fenlon says the case has nothing to do with the correctness of the policy and instead turns on whether the trial judge properly applied legislation protecting comments related to the public interest. 

The court ruling says Neufeld’s social media post questioned the policy by arguing that allowing children to change gender amounted to “child abuse,” prompting Hansman to allege the trustee had “tiptoed quite far into hate speech.”

Fenlon has reinstated Neufeld’s defamation lawsuit, saying the trial judge “failed to distinguish” between the subject matter of public interest and Hansman’s comments, which Neufeld claims defame him as “bigoted, transphobic, anti-immigrant, racist, misogynistic and hateful.”

“The judge in the present case did not consider the potential chilling effect on future expression by others who might wish to engage in debates on this or other highly charged matters of public interest,” Fenlon writes.

The lower court ruling raises the risk that people might avoid public debate out of fear of being accused of hate speech “with no opportunity to protect their reputation,” says Fenlon.

The case has been returned to a lower court for further hearings and Neufeld has been awarded costs of the appeal.

“A determination of whether the expressions in the present case are defamatory or defensible is not before this court,” Fenlon says. “Nothing in these reasons should be taken as prejudging the merits of the action. But in my view, in the circumstances of this case, Mr. Neufeld’s claim deserves a trial on the merits ….”

This report by The Canadian Press was first published June 9, 2021.

The Canadian Press