This case is about the proper interpretation and application of BC’s Protection of Public Participation Act (PPPA). The PPPA was enacted to stop corporations and people with power from using the legal system to silence those who speak out on public interest matters. Section 4 of the PPPA allows a court to dismiss an otherwise meritorious lawsuit when the public interest in protecting the targeted speech outweighs the public interest in allowing the lawsuit to continue. The Supreme Court of Canada will be asked to consider this weighing exercise in Hansman v Neufeld, a case that affects the dignity, security, and equality interests of a highly vulnerable group: 2SLGBTQQIA+ children and youth.
The appeal arises from a defamation lawsuit by former Chilliwack school trustee Barry Neufeld against former BC Teachers’ Federation president Glen Hansman. Mr. Hansman had spoken out against Mr. Neufeld’s criticisms of BC’s Sexual Orientation and Gender Inclusion curriculum (SOGI 123), which included attacks on the existence and humanity of trans children and youth, as well as on those who care for and support trans children and youth (due to their harmful nature, we will not repeat these comments or describe them in more detail in this summary). Mr. Neufeld argued in his defamation lawsuit that Mr. Hansman had harmed his reputation by describing his anti-SOGI 123 comments as bigoted, hateful, and discriminatory.
Mr. Hansman sought the dismissal of Mr. Neufeld’s lawsuit under the PPPA. He argued that the public interest in protecting his ability to speak out on behalf of inclusive schools and 2SLGBTQQIA+ students outweighed the public interest in allowing Mr. Neufeld to defend his reputation. The BC Supreme Court agreed with Mr. Hansman and dismissed Mr. Neufeld’s lawsuit. However, the BC Court of Appeal overturned the BC Supreme Court’s decision after interpreting the PPPA to protect the ability of people like Mr. Neufeld to express “contentious opinions” without “the risk of being tarred with negative labels (and corresponding self-censorship).”
Mr. Hansman will argue before the Supreme Court of Canada that the BC Court of Appeal erred in its interpretation and application of the PPPA, including by assigning public interest to the use of defamation claims to protect the plaintiff’s freedom of expression. He will argue that the PPPA was designed to protect people from being sued, not safeguard the ability to sue.
WEST COAST LEAF’S INVOLVEMENT
West Coast LEAF is intervening in this case based on our long-standing interest and expertise in the relationship between freedom of expression and the substantive equality of groups who experience gender-based discrimination in society, including sexual assault survivors and transgender people.
In Maia Bent, et al. v Howard Platnick, et al. and 1704604 Ontario Limited v Pointes Protection Association, et al., the Supreme Court of Canada said that the public interest weighing exercise under laws like the PPPA should include consideration of “the possibility” that the expression or claim “might provoke hostility against” a vulnerable group. However, the Court did not provide more guidance in these cases about when or how to assess such a risk.
West Coast LEAF is concerned that without such guidance lower courts too often overlook the important interests of vulnerable groups when deciding PPPA applications. For example, in this case, neither the BC Supreme Court nor the BC Court of Appeal considered the possibility that Mr. Neufeld’s claim could provoke hostility against 2SLBGTQQIA+ children and youth by silencing or intimidating them and their allies. To address this gap, West Coast LEAF will propose an analytical framework for making a finding that an expression or claim might provoke hostility against a vulnerable group. We will also discuss the significance of such a finding to a court’s ultimate decision about whether to dismiss a claim.
West Coast LEAF will file our factum in July 2022. The hearing of the appeal has not yet been scheduled.