Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.

  1. The SCC is releasing its decision in Glen Hansman v. Barry Neufeld on Friday, May 19, 2023. At issue is anti-SLAPP legislation and how to balance the public interest in protecting expression with protecting the interest in continuing a defamation action.
  2. Anderson v. Anderson, 2023 SCC 13 was released on May 12, 2023. The SCC unanimously allowed the family law appeal, clarifying when judges must consider separation agreements in dividing family property.

Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.

Defamation Lawsuit to Protect Freedom of Expression?

Appeal by leave from Neufeld v. Hansman, 2021 BCCA 222

View the SCC webcast & read the factums

What Happened?

At trial: The appellant, Glen Hansman, is a gay man and teacher, and was President of the British Columbia Teacher’s Federation (“BCTF”). The respondent, Barry Neufeld, is a public school trustee who made negative comments about how a sexual orientation and gender identity program was being implemented in B.C. schools.

In his capacity as President of the BCTF, Hansman criticized Neufeld’s comments in a media interview. Hansman said that Neufeld “tip toed quite far into hate speech” with his statements. Neufeld alleged that Hansman defamed him and filed lawsuit against Hansman. Hansman applied to have Neufeld’s action dismissed under s. 4 of the B.C. Protection of Public Participation Act (“PPPA”), commonly known as anti-SLAPP legislation, which allows for the possibility of early dismissal of “Strategic Lawsuits Against Public Participation”.

The application judge granted Hansman’s application for dismissal of Neufeld’s defamation action, finding that Hansman had established the necessary grounds for dismissal under the PPPA and concluding that the public interest in allowing debate over this issue outweighed the public interest in allowing Neufeld to continue his defamation proceeding against Hansman.

At the Court of Appeal: The Court of Appeal unanimously allowed Neufeld’s appeal, holding that the application judge made several errors, and allowed Neufeld’s defamation action against Hansman to go forward. It found that the judge erred in assessing whether there was likely a valid defence of fair comment. The defence of fair comment must be considered for each separately pleaded publication. The judge erred in weighing the competing public interests and in failing to consider the chilling effect on public discourse.

What Was Argued at the SCC?

Appellant: The appellant argued that this is a textbook example of a case that is properly dismissed under the PPPA. Hansman has a strong fair comment defence and Neufeld has not established the likelihood of significant harm if the action does not proceed. There is also significant public interest in protecting Hansman’s expressions which were in response to an attack on LBGTQ persons.

Respondent: The respondent argues that the PPPA is being misused here. It should not be used to protect people who use libel as a means to shut down debate on matters of public interest. BCTF is a powerful institution, and allowing the appeal would have a chilling effect.

What Else Should You Know Before Making a Prediction?

The SCC released decisions on almost identical anti-SLAPP legislation from Ontario in 2020: 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 and Bent v. Platnick, 2020 SCC 23. In Pointes, the SCC unanimously dismissed the appeal, which meant the underlying lawsuit was dismissed. In Platnick, however, the Court was split 5:4, with the majority (Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ.) dismissing the appeal, meaning that the underlying defamation lawsuit could proceed. Justice Côté wrote that the legislation “provides courts with the ability to scrutinize what is really going on in the particular case before them.”

I could see this case being another split like Platnick. However, neither Platnick nor Pointes examined the role of a plaintiff’s expressive rights in the public interest weighing exercise. Normally the focus in these SLAPP cases is on protecting the expressive rights of the party being sued and not the expressive activity of the party suing in defamation. I’m leaning towards appeal allowed on the basis of deference to the application judge, who seemed to appreciate what was actually going on in the case.

Last Week at the SCC

On May 12, 2023, the SCC released Anderson v. Anderson, 2023 SCC 13. The Court unanimously allowed the appeal.

Held: Even though there was no independent legal advance or formal disclosure, the separation agreement was binding and should have been considered by the trial judge when dividing family property.

Key Points:

  • The analytical framework in Miglin v. Miglin, 2003 SCC 24 arose within a different statutory context, the federal Divorce Act, and should not be transposed into provincial family property legislation.
  • The Family Property Act of Saskatchewan provides that domestic contracts that do not meet certain statutory requirements remain an important factor in determining whether departure from equal division is fair and equitable in the circumstances.
  • Even without safeguards like financial disclosure and independent legal advice, an agreement should be considered unless it arose from an unfair bargaining process.
  • Only 27% correctly predicted the result. The fact most got it wrong was not overly surprising, given that the SCC agreed with the Court of Appeal in many respects but differed with respect to the amount to be paid from the respondent to the appellant.

-Tom Slade

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