Reaction to trustee's gender identity comments led to a defamation suit. Now it's going to Canada's top court

Canada's top court has agreed to hear an appeal from a former B.C. teachers' union boss being sued for saying an outspoken school trustee "tiptoed ... into hate speech" with public criticisms of provincial plans to teach children about gender identity.

In a case grounded in issues of free speech and minority protections, the Supreme Court of Canada agreed Thursday to hear Glen Hansman's appeal of a lower court ruling that gave Chilliwack school trustee Barry Neufeld the green light to continue with his defamation suit.

Last summer, B.C.'s Appeal Court sided with Neufeld, saying it was important to ensure that "people who hold contentious opinions on hotly debated topics" do not feel discouraged from defending their reputations when attacked.

In his application to convince the Supreme Court of Canada to take the case, Hansman — former president of the B.C. Teachers Federation — claimed the Appeal Court missed the point of provincial legislation aimed at stopping people from using the courts to stifle free speech.

Hansman's lawyers argue the Protection of Public Participation Act B.C. introduced in 2019 is meant to protect the people being sued for speaking out — not the ones suing them.

"Plaintiffs sue defendants in defamation, not the other way around. The very purpose of the statute is to screen out such litigation when it unduly limits the defendant's expressive activity," Hansman's argument reads.

"To allow a claim to proceed because of a concern for the plaintiff's expressive activity is to turn the Act on its head."

'Potential chilling effect'

Neufeld sued Hansman in 2018 for his reactions to comments Neufeld made criticizing the B.C. Ministry of Education's sexual orientation and gender identity program.

The controversy began with a Facebook post in which Neufeld said allowing children to "choose to change gender is nothing short of child abuse."

In interviews, Hansman said Neufeld's statements were "bigoted," calling on him to step down for violating "his obligations as a school board trustee to ensure that students have a safe, inclusive environment."

Neufeld went on to make more comments about the teaching materials, saying at one point that the day might come when the "government will apprehend your children and put them in homes where they will be encouraged to explore homosexuality and gender fluidity."

Hansman was then quoted in articles saying Neufeld had "tiptoed quite far into hate speech" and was creating a school environment "that is discriminatory and hateful."

Neufeld's initial B.C. Supreme Court claim alleged that Hansman left the public with the impression Neufeld had promoted hatred, committed hate speech and made school unsafe for gay and transgender students.

The lower court cited the Protection of Public Participation Act in throwing the case out — saying Hansman's statements might fall into the category of fair comment and that "the public interest in continuing the proceeding did not outweigh the public interest in protecting Hansman's expressive activity."

But the B.C. Court of Appeal overturned the decision, concluding the judge who made it failed to consider "the potential chilling effect" on others who want to engage in controversial debates.

Consider 'plight of transgender and non-binary people'

The Supreme Court of Canada has previously weighed in on considerations lower courts need to make when hearing cases involving what are known as SLAPP suits — Strategic Lawsuits Against Public Participation.

Judges have to balance the public interest in allowing a lawsuit to proceed against the chilling effect on people being sued for speaking their minds.

Hansman's lawyers say their case is unlike others that have come before the Supreme Court of Canada because it involves an outspoken claimant like Neufeld trying to silence someone while asking the court to protect his own right to expression.

"Neufeld has continued to make a variety of statements on social media, including praise for anti-LGBTQ laws in Hungary and likening the 'new gender ideology' to 'grooming children for [sexual] abuse,'" the documents say.

Neufeld filed a response asking the top court to reject Hansman's appeal.

His lawyer claims the B.C. Court of Appeal reached the correct decision, because B.C.'s anti-SLAPP law was intended to "protect freedom of debate."

"The entire scheme gets turned on its head if it provides cover for the president of a powerful public sector union whose protracted defamation of Mr. Neufeld through the media sought to destroy a critic and shut down public debate on a matter of public interest," the trustee's response reads.

Hansman claims his views were informed by his experiences as a gay man, as a member of B.C.'s LGBTQ community and as a teacher.

His application to the court says the B.C. Court of Appeal "incredibly ... did not even mention that Hansman's expressions were directed at protecting and promoting the equality of one of the most vulnerable groups in society, transgender individuals."

They say the appeal will be an opportunity for the Supreme Court of Canada to "consider the plight of transgender and non-binary people in Canadian society" in the same way the top court has done with legal protections for gay and lesbian individuals.