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DEFAMATION - Fair comment - Foundation of true facts - Matters of public interest

Friday, July 09, 2021 @ 5:40 AM  

Lexis Advance® Quicklaw®
Appeal by the plaintiff Neufeld from the dismissal of his defamation action under the Protection of Public Participation Act. The appellant was a public-school trustee who, in a Facebook post, made negative comments about the way a program designed to teach children about sexual orientation and gender identity, was being implemented in schools. The respondent Hansman, the then-president of the BC Teachers’ Federation, was highly critical of Neufeld’s statements when interviewed by the media. The judge found that a trier of fact would inevitably conclude that the defence of fair comment was valid. He also found that the public interest in protecting Hansman’s expressions outweighed the harm suffered by Neufeld, who submitted almost no evidence of damages suffered. The judge concluded there was no prospect of a finding that Hansman made the statements, either knowing them to be false or with reckless indifference because Hansman’s affidavit made it clear that he honestly held the beliefs he expressed.

HELD: Appeal allowed. The judge erred in his interpretation and application of the Act. The judge worked from a summary of the type of comments made by Hansman rather than addressing the specific expressions in issue. The judge’s failure to consider the specific expressions led him to overlook the constituent elements of the fair comment defence as applied to each expression. There were also grounds to believe that Hansman would not be able to establish that the facts relied on to support several comments about Neufeld were either stated in the publications or so notorious as to be known to readers and listeners. Although Hansman denied that his comments about refugees and immigrants referred to Neufeld, there were grounds to believe that Neufeld could establish this as part of his burden in establishing defamation. The judge placed an inordinate burden on Neufeld by requiring him to provide evidence on the fair comment defence to establish there was no basis for the defamatory comments. It was sufficient for Neufeld to rely on the 11 impugned publications. The judge erred in concluding that the reasoning in the WIC Radio case would preclude a trier of fact from finding a defence of fair comment in the present case. To the extent that the judge understood Hansman to have expressly stated he had an honest belief in the defamatory expressions published, that was an error of fact. It was an error in principle to suggest that, once a defendant explained and asserted a belief in their comments, malice could only be proved by a full admission on cross-examination. The judge also erred in his assessment of the competing public interests. The judge failed to distinguish between the subject matter of public interest and the actual expression complained of. Neufeld identified statements referring to him as bigoted, transphobic, anti-immigrant, racist, misogynistic, and hateful. The weighing exercise required the judge to consider the statements identified as containing the defamatory sting and to weigh whether those statements deserved protection. By focusing on the subject matter and the many non-defamatory components of the publications, the judge fell into error. The judge 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, and that people would withdraw or not engage in public debate for fear of being inveighed with negative labels and accusations of hate speech with no opportunity to protect their reputation.

Neufeld v. Hansman, [2021] B.C.J. No. 1245, British Columbia Court of Appeal, P.M. Willcock, L.A. Fenlon and P.G. Voith JJ.A., June 9, 2021. Digest No. TLD-July52021009