“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.”
The SCC (6:1) allowed the appeal.
Justice Karakatsanis wrote as follows (at paras. 1-9, 46, 48, 62, 70-72, 77-78, 90-91, 94, 96-97, 99-100, 108, 112, 115, 118, 122):
“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.
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).
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.
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.
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.
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).
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.
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.
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.
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.]
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.
…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.
Nor do I agree with the Court of Appeal that the chambers judge found causation could not be established simply because Mr. Hansman was one of many speaking out against Mr. Neufeld. To link the few examples of harm he alleged to Mr. Hansman, Mr. Neufeld asserted only that the negative attention he received “commenced” after Mr. Hansman’s statements (Chambers Judge’s Reasons, at para. 147). The chambers judge held this, too, was a bald assertion and one belied by the record before him. He found it was clear that other people and entities had independently reacted negatively to Mr. Neufeld’s views, and there was nothing to indicate their reactions were influenced or motivated by Mr. Hansman’s comments (para. 150).
I would defer to the chambers judge’s conclusions. As noted, there was an immediate public outcry to Mr. Neufeld’s views, one which began the day he first posted on Facebook, even before Mr. Hansman’s first statement to the media. In the context of this case, I would not disturb the chambers judge’s finding that something more than a bare assertion that the harm commenced after Mr. Hansman’s statements was needed to prove a causal link.
Given the dearth of evidence from Mr. Neufeld on harm, the chambers judge did not err in concluding that Mr. Neufeld had adduced “almost no evidence of damage suffered” as a result of Mr. Hansman’s statements. Absent extricable error, his findings are entitled to deference (Bent, at para. 77).
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. Our 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 Mr. Hansman would chill Mr. Neufeld’s expression and those of others who wish to express unpopular views. Simply put, there is no chilling effect in barring potential plaintiffs from silencing their critics and collecting damages through a defamation suit. Just as our law protects Mr. Neufeld’s right to voice his opinions on matters of public interest, so it protects the right of others, like Mr. Hansman, to respond. As the Court of Appeal recognized, “freedom of expression is ‘the cornerstone of a pluralistic democracy’ and . . . there must be room for views to be forcefully and even intemperately presented in the public forum” (para. 70).
Mr. Hansman undoubtedly used words with the potential to inflict serious reputational harm. But the consideration of the public interest in continuing the proceeding must be grounded in harm to Mr. Neufeld, reputational or otherwise, caused by Mr. Hansman’s expression, and not in the consideration of a “chilling effect” on others if Mr. Neufeld could not proceed with his defamation suit.
Mr. Neufeld’s right to express himself is not in doubt, nor is it for this Court to assess the value of his expression. But Mr. Neufeld’s statements are critical context in characterizing Mr. Hansman’s expression, which is at issue. Despite Mr. Neufeld’s submissions, it is evident that his expression went beyond a critique of a government program. For instance, in his original post, Mr. Neufeld criticized the fact that SOGI 123 materials instruct children “that gender is not biologically determined, but is a social construct” and stated that permitting children to “choose to change gender is nothing short of child abuse” (A.R., vol. III, at p. 16). In the same post, Mr. Neufeld expressed concern that children were “being taught that heterosexual marriage is no longer the norm” and that “[i]ncreasing numbers of children are growing up in homes with same sex parents” (p. 16). And in his speech at the Culture Guard event about a month following his original post, Mr. Neufeld claimed that SOGI 123 “enabl[es] dysfunctional behavior and thinking patterns” and “coddl[es] and encourag[es] what [he] regard[s] as the sexual addiction of gender confusion”. Mr. Hansman was responding to these and other statements.
Mr. Hansman’s counter-speech fell close to the core of s. 2(b). His expression served a truth-seeking function, as he was contacted by the media to present an alternative perspective within a debate on a matter of public importance. In speaking out, he sought to counter expression that he and others perceived to undermine the equal worth and dignity of marginalized groups. Finally, his speech commenting on the fitness of an electoral candidate was political expression, which is “the single most important and protected type of expression” (Harper v. Canada (Attorney General), 2004 SCC 33,  1 S.C.R. 827, at para. 11, per McLachlin C.J. and Major J., dissenting in part, but not on this point; see also Able Translations Ltd. v. Express International Translations Inc., 2018 ONCA 690, 428 D.L.R. (4th) 568, at paras. 41‑44 (affording expression about a person’s suitability for elected office significant protection under s. 137.1 of the Ontario Courts of Justice Act)).
While the weighing exercise may be the core of the anti-SLAPP legislation, the chambers judge first grounded his dismissal of the action in the finding that Mr. Hansman had a valid fair comment defence. Section 4(2)(a)(ii) 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 defendant must first point to any defences they intend to raise at trial, after which the burden shifts to the plaintiff. “[G]rounds to believe” means “something more than mere suspicion, but less than . . . proof on the balance of probabilities” (Pointes, at para. 40, quoting Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40,  2 S.C.R. 100, at para. 114). To satisfy this burden, a plaintiff must show the defences advanced by the defendant “are not legally tenable or supported by evidence that is reasonably capable of belief such that they can be said to have no real prospect of success” (Pointes, at para. 59).
The fair comment defence has five elements. First, the “comment must be on a matter of public interest” (Grant, at para. 31). Second, it must be “based on fact” (para. 31). Third, “though it can include inferences of fact, [it] must be recognisable as comment” (para. 31). Fourth, it must satisfy an objective test: “could any person honestly express that opinion on the proved facts?” (para. 31). Finally, even if the above elements are met, “the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice” (para. 31). Consideration of the elements of the fair comment defence requires an assessment of the defamatory words used in the full context surrounding their use (WIC Radio, at paras. 55-56). In this appeal, the only elements at issue are the second and third elements of the defence, along with the question of malice.
When invoked at trial, the defendant must prove the elements of the fair comment defence before the onus switches to the plaintiff to defeat the defence by establishing malice by the defendant (para. 52). On a s. 4 application, however, the onus is on the plaintiff to show grounds to believe that the defendant cannot establish one or more of its elements and thus the defence has no real prospect of success.
To constitute fair comment, a factual basis for the impugned statement must be explicitly or implicitly indicated, at least in general terms, within the publication itself or the facts must be “so notorious as to be already understood by the audience” (WIC Radio, at para. 34). The defence is unavailable if “the factual foundation is unstated or unknown, or turns out to be false” (para. 31). There is, however, no requirement that the facts support the comment, in the sense of confirming its truth (para. 31). The expression must relate to the facts on which it is based, but the comment need not be a reasonable or proportionate response (paras. 39, 51 and 59). The purpose of this element is not to measure the fairness of expression, but to ensure the reader is aware of the basis for the comment to enable them “to make up their own minds” as to its merit (para. 31).
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 (WIC Radio, at para. 27). A comment includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof” (para. 26, quoting Ross v. New Brunswick Teachers’ Association, 2001 NBCA 62, 238 N.B.R. (2d) 112, at para. 56). This is a low threshold; “the notion of ‘comment’ is generously interpreted” (WIC Radio, at para. 30).
A few statements are arguably closer to the line between comment and fact. While not strictly necessary to decide, given my conclusion as to the public interest weighing exercise, I would agree with the chambers judge that, in the specific context of this case and given the supporting facts included in each publication, a reasonable reader would have interpreted the statements as expressions of Mr. Hansman’s opinion. For example, the statement that Mr. Neufeld violated his obligations as a school board trustee could arguably be taken as an imputation of fact, especially given that Mr. Hansman’s role as president of the BCTF might give readers the impression he is an authority figure on such matters. But an allegation that a politician has not lived up to their obligations is generally understood to be a critique, not a declaration of fact. Mr. Neufeld has not shown grounds to believe that it would not be seen as a comment in the context of this case.
A showing of malice defeats a valid fair comment defence. This can be done by demonstrating the defendant made the statement knowing it was false, with reckless indifference as to its truth, to injure the plaintiff out of spite or animosity, or for some other improper purpose (WIC Radio, at paras. 100-101 and 104; see also Bent, at para. 136; Smith v. Cross, 2009 BCCA 529, 314 D.L.R. (4th) 457, at para. 34). Proof of malice “may be intrinsic or extrinsic: that is, it may be drawn from the language of the assertion itself or from the circumstances surrounding the publication of the comment” (WIC Radio, at para. 100). A finding of a subjective honest belief negates the possibility of finding malice (para. 53).
I also do not agree with the Court of Appeal that the chambers judge held as a matter of law that once a defendant expresses an honest belief in their statements, malice can be proved only by an admission on cross-examination. The chambers judge noted that, while the PPPA provides for a right of cross-examination on affidavits, Mr. Neufeld declined to use this opportunity. The judge determined that, short of an admission of malice by Mr. Hansman on cross-examination, it was difficult to imagine how malice could be found on the “evidence before [him]” (para. 141). This simply amounted to a statement that Mr. Neufeld failed to meet his persuasive burden on this s. 4 application.
I would allow the appeal, set aside the order of the Court of Appeal for British Columbia, and restore the order of the chambers judge dismissing the defamation action. I would make an order for costs to the appellant assessed on a party and party basis in this Court and on an ordinary costs basis at the Court of Appeal, with costs in the Supreme Court of British Columbia to be awarded on a full indemnity basis pursuant to s. 7(1) of the PPPA.”