Supreme Court of Canada addresses value of “counter-speech” in new anti-SLAPP decision
In a recently released decision, the Supreme Court of Canada reaffirmed the important role of anti-SLAPP legislation in protecting those who speak out on matters of public interest and against whom legal action is taken. In particular, the Court made clear that so called “counter-speech” seeking to defend a vulnerable group weighs in favour of protection.
Hansman v Neufeld has been a closely watched anti-SLAPP case from British Columbia. By a 6-1 vote, the Supreme Court of Canada determined that a defamation lawsuit brought by a public school trustee against a former president of a large teachers’ union should be dismissed (with Justice Côté as the lone dissenter).
The Court’s decision clarifies several important points about how the “public interest weighing” component of the anti-SLAPP test ought to be applied. It is at this stage where a court assesses whether the harm or likely harm of the defendant’s expression on the plaintiff (which is the key factor reflecting the public interest in allowing the litigation to proceed) outweighs — or is outweighed by — the public interest in protecting the expression. The Court had previously described this weighing exercise as the “fundamental crux” of the anti-SLAPP test.[1] As a practical matter, it drives the result in most anti-SLAPP motions.
Hansman focuses on three key points in the public interest weighing analysis: (i) whether the “chilling effect” can ever weigh in the plaintiff’s favour or whether it can only assist the defendant; (ii) the public interest in so-called “counter-speech” designed to protect a vulnerable group; and (iii) the difficult but important requirement for the plaintiff to show some causal link between the defendant’s expression and harm to the plaintiff in circumstances were other non-parties were making similarly defamatory public comments about the plaintiff.
Given that Ontario has nearly identical legislation, the result in Hansman will have implications for anti-SLAPP cases in both jurisdictions.
The Facts
Barry Neufeld is a public school trustee. In a Facebook post, he made negative comments about the way schools were implementing a program designed to teach children about sexual orientation and gender identity. Among other things, he wrote as follows: “At the risk of being labeled a bigoted homophobe, I have to say that I support traditional family values and I agree with the College of pediatricians that allowing little children [to] choose to change gender is nothing short of child abuse. But now the BC Ministry of Education has embraced the LGBTQ lobby and is forcing this biologically absurd theory on children in our schools…”
Glen Hansman, who was then-president of the BC Teachers’ Federation, was interviewed by the media about Neufeld’s comments. Hansman made several highly critical comments about Neufeld, including statements that Neufeld has “tiptoed quite far into hate speech”; that Neufeld was “creating a school environment… that is discriminatory and hateful”, and that Neufeld was “continuing to spread hate about the LGBTQ people”.
Neufeld brought a claim in defamation against Hansman, arguing that Hansman’s comments to the media communicated the defamatory meaning that Neufeld promoted hatred, engaged in hate speech, made it unsafe for students in the school system and presents a safety risk to students (among other things).
Hansman responded by bringing an anti-SLAPP motion to have the case dismissed.
Lower Court Decisions
Before the British Columbia Supreme Court, Hansman was successful. With respect to the first part of the anti-SLAPP test, the parties accepted (and the court agreed) that Hansman’s expression related to a matter of public interest. The next part of the anti-SLAPP test required Neufeld to establish that his claim has “substantial merit” and Hansman had “no valid defences”. The court concluded that Hansman had a valid fair comment defence, meaning that Neufeld had failed to meet the requirements to avoid his lawsuit being dismissed.
While not strictly necessary to do so, the court went on to consider the final part of the anti-SLAPP test: the weighing of the public interest in protecting Hansman’s expressions against the public interest in allowing Neufeld’s lawsuit to proceed. Here, the court sided firmly with Hansman, relying on the fact that Neufeld had “submitted almost no evidence of damages suffered”, as well as the fact that several other entities and individuals also had a negative reaction to Neufeld’s comments.
Neufeld appealed to the British Columbia Court of Appeal (BCCA). The BCCA reversed the lower court’s conclusion on the fair comment issue (for reasons that are of less interest to us, given the focus of this post).
Since the BCCA found that Neufeld met his onus to show there was “no valid defence” in respect of fair comment, the appeal would now turn on the outcome of the weighing stage – the last step and so-called “crux” of the anti-SLAPP analysis. Again, at this stage, the court weighs the interests in favour of allowing the case to continue against the public interest in dismissing the litigation.
Normally, the main interest in favour of allowing the case to continue is giving the plaintiff a chance to vindicate their reputation and obtain a remedy for any harm they have suffered as a result of the alleged defamation. The BCCA found that the lower court erred in discounting Neufeld’s harm due to his failure to provide evidence. The BCCA fairly noted that plaintiffs in a defamation case, like Neufeld, do not need to prove they suffered actual loss or injury. General damages for loss of reputation, injury to feelings, embarrassment and anxiety are presumed.
That being said, the magnitude of harm is relevant – indeed, often key – in the balancing analysis and will depend on the circumstances of the case. In assessing the magnitude here, the BCCA discounted the fact that several other outlets had made similar comments about Neufeld in response to Neufeld’s Facebook post: “Although it may well be found that Mr. Hansman was not the sole cause of any harm to Mr. Neufeld’s reputation, it must be remembered that ‘no definitive determination of harm or causation is required’ at this stage of the inquiry. Nor is causation an ‘all-or-nothing proposition’…” (para 59).
Simply put, the BCCA thought it was of little moment that many others, apart from Hansman, had made similar disparaging comments about Neufeld.
The BCCA also found that the court below erred when assessing the public interest in allowing Neufeld’s lawsuit to continue because it failed to account for the chilling effect that dismissing the lawsuit would have. In particular, the BCCA faulted the lower court for failing to 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 – that is, the risk 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” (para 65). The lower court should have considered “the collateral effect that preventing Mr. Neufeld from defending himself from such serious accusations could have on other individual’s willingness to express themselves on issues of public interest in the future” (para 68).
Key Take-Aways from the Supreme Court’s Decision
The Supreme Court allowed the appeal, overturned the BCCA’s decision and held that Neufeld’s lawsuit should be dismissed. The Court found that Neufeld had failed to meet the ‘merits’ stage of the anti-SLAPP test (i.e. he had failed to successfully challenge the validity of Hansman’s ‘fair comment’ defence). But the bulk of the Court’s analysis is on the ‘weighing’ stage of the anti-SLAPP analysis, which forms the focus of this blog post.
- Chilling effect can only weigh in favour of dismissing the lawsuit
As I wrote in a previous blog post, the BCCA’s approach to the chilling effect is a particularly troubling use of a concept that had previously only been relied upon to protect defendants rather than assist plaintiffs in the anti-SLAPP analysis:
To be sure, courts routinely rely on the chilling effect as part of the weighing analysis in anti-SLAPP motions. But they invariably do so by taking into account the concern that litigation (or the threat of litigation) brought by the plaintiff would chill the expression of the defendant (or those similarly situated), thus contributing to the public interest of having the case dismissed. In Neufeld, the BCCA does exactly the opposite, relying on the chilling effect on those in the plaintiff’s position to support the conclusion that the case should continue.
The Supreme Court decision definitively rejects the BCCA’s approach to the chilling effect. (In the interests of full disclosure, I represented CFE in its role as an intervener before the Supreme Court in Hansman. CFE’s submissions were focused on the proper approach to the chilling effect and were cited with approval by the Court.)
The Court found that the BCCA’s approach to the chilling effect “turns the concept on its head”. The only relevant chilling effect in the weighing analysis is “the concern that the possible imposition of a legal penalty would cause speakers to refrain from commenting on matters of public interest”, and not whether “the inability to inflict a legal penalty” would chill a plaintiff’s expression or those of others who wish to express unpopular views (para 77).
Put differently, a chilling effect can only ever assist a defendant in the public interest weighing analysis. (That is not to say it will always do so, of course. There may be no chilling effect at all, depending on the circumstances, in which case it may be a neutral factor or one that is simply irrelevant to the public interest weighing analysis. But the point is it cannot assist the plaintiff.)
This was an important clarification of a point left unresolved in the Supreme Court’s previous anti-SLAPP decision in 1704605 Ontario Ltd v Pointes Protection, where the Court used ambiguous language to describe the role of the chilling effect at the weighing stage, stating that it “may be relevant for the motion judge to consider… the potential chilling effect on future expression either by a party or by others” (underlining added; italics in original) (para 80). By not limiting this list to the chilling effect on future expression by the defendant, Pointes could be read as leaving the door open to exactly the line of reasoning adopted by the BCCA in Hansman where the chilling effect was relied upon to buttress the plaintiff’s side of the weighing equation.
The Supreme Court’s decision provides the requisite clarity on the chilling effect’s proper role in the weighing analysis as one being limited to the kind of impact on defendants (and those similarly situated) that supports dismissing the action. The Court’s willingness to draw a bright line on this issue is critically important. Had the Court accepted the BCCA’s logic on the chilling effect, then that would have provided a powerful new argument in favour of allowing defamation cases to continue, tiling the playing field in favour of plaintiffs and significantly weakening the efficacy of BC and Ontario’s anti-SLAPP laws.
The Supreme Court’s framing of Hansman’s expression as “counter-speech” is unique in the Canadian anti-SLAPP jurisprudence. That very label suggests a degree of public interest in its protection. As the Court puts it, “the idea of counter-speech inheres in the recognition that the open exchange of ideas is a precondition to unlocking the value of free expression… While counter-speech is not necessarily a complete solution to harmful expression, its close proximity to the values at the core of s. 2(b) [of the Charter] is beyond doubt” (para 81).
The Supreme Court held that there was a particular value in protecting counter-speech “motivated by the defence of a vulnerable or marginalized group in society” as such expression “engages the values at the core” of the Charter’s right to equality – namely “the equal worth and dignity of every individual” (para 82).
That was the kind of expression at issue in this case. In particular, the Court found that H “spoke out to counter expression he perceived to be untrue, prejudicial towards transgender and other 2SLGBTQ+ individuals, and potentially damaging to transgender youth” (para 83). The Court further concluded that the “transgender community is undeniably a marginalized group in Canadian society” (para 84) and “transgender occupy a unique position of disadvantage in our society” (para 85).
While some have criticized this aspect of the Court’s decision as reflecting a value-laden judgment on the worth of expression — as it undoubtedly does — the reality is that such an exercise is inherent in the weighing analysis. Assessing the public interest in protecting expression cannot be divorced from the contents of that expression. As the Court explained in Pointes Protection, “the quality of the expression, and the motivation behind it, are relevant here” (italics in original) (para 74). The Court later added: “While judges should be wary of the inquiry descending into a moralistic taste test, this Court recognized as early as R v Keegstra that not all expression is created equal” (para 76).
But Pointes Protection did not seem to contemplate the “counter-speech” scenario that unfolded in Hansman. This can be seen from the list of factors that Pointes Protection highlights as potentially proving useful in the weighing analysis, which includes “the possibility that the expression or the claim might provoke hostility against an identifiably vulnerable group or a group protected under s. 15 of the Charter or human rights legislation” (underlining added) (para 80). This would appear to cover two different general categories of scenarios: a defendant’s expression that is hostile to vulnerable groups (favouring the plaintiff in the weighing analysis), and a plaintiff’s claim against members of a vulnerable group in circumstances that may subject them to hostility (favouring the defendants in the weighing analysis).
Hansman extends a similar logic to a third category of cases: where a defendant’s expression counters other expression and thereby seeks to protect vulnerable groups. This will weigh in favour of the public interest in protecting the expression, as a factor that tilts towards dismissing the underlying litigation.
While Hansman is perhaps the first case to frame the dynamic as “counter-speech”, previous anti-SLAPP decisions from Ontario have dealt with expression made in response to the plaintiff’s original controversial statements.
The Ontario cases adopt a somewhat different lens when it comes to the weighing analysis. Granted, the counter-speech at issue in those cases may not go as far as Hansman in terms of wanting to protect a vulnerable group. According to the Ontario cases, however, the mere fact the plaintiff voluntarily chose to engage on a controversial issue in a controversial way may be enough to dampen any reputational harm the plaintiff claims to have suffered and tilt the weighing scale in favour of dismissing the lawsuit. The Court of Appeal for Ontario explained in Levant v DeMelle that “[w]hen a person injects themselves into public debate over a contentious topic, they must expect that they are going to be met with some measure of rebuttal, perhaps forceful rebuttal, by those who take an opposite view”; accordingly, this is “a factor to consider in assessing the level of damages” caused by the allegedly defamatory response (para 70). As a lower court decision memorably put it when dismissing a defamation claim arising out of a Twitter exchange: “[the plaintiff] jumped in the turbulent river of Twitter commentary with some vulgarly worded observations that touched a nerve with the Defendants. He got it back as good as he gave it, and got wet in the process” (para 41).
In other words, the Ontario cases suggest a lawsuit arising from a “counter-speech” scenario may be more vulnerable to dismissal — depending on the nature, manner and forum of the plaintiff’s original expression — even if a defendant is not necessarily seeking to protect vulnerable groups from harm.
It is worth emphasizing that the approach in Levant is not necessarily inconsistent with Hansman. Indeed, it could be the case that both (i) counter-speech meant to protect a vulnerable group should weigh in favour of protecting the expression and (ii) where a plaintiff is suing over comments made in response to their own controversial expression, the weight given to any supposed reputational harm by the plaintiff is reduced. It is unfortunate that Hansman does not expressly address the reasoning from Levant (although it does cite Levant with approval on a different point at para 67). But simply because the Court in Hansman focused on the quality and motivation of Neufeld’s expression — rather than H’s decision to “inject themselves into a public debate over a contentious topic” (in the words of Levant) — does not undermine the precedential status or persuasiveness of the Ontario cases, in my view.
- Plaintiff must still meet causal burden where there is a chorus of defamatory voices
Finally, the Court’s decision in Hansman sheds some light on a particularly vexing issue in the world of anti-SLAPP cases: to what extent does a plaintiff have to tie harm they say they suffered to a particular defendant’s expression in a world where the defendant is only a voice in a choir of those making similarly defamatory statements?
In my initial blog post written when the Court announced it would hear the appeal in Hansman, I noted some of the considerations that make this question a thorny one:
Surely the extent to which others may have contributed to Neufeld’s reputational harm is at least relevant at the balancing stage. How much weight it should carry in the final analysis, however, is a more difficult question. There is a compelling argument that plaintiffs should not be lightly deprived of their day in court against a single defendant simply because they have been similarly defamed by a web of other potential defendants. But, at least in my view, there is a similarly compelling argument that the weight of broader reputational harm caused by a mob of defamers should not be laid at the feet of a single defendant.
Add to this the practical problems of expecting a plaintiff to tie any damage they have, or are likely to, suffer to a specific expression out of several similar ones (perhaps even several hundred, in a true “defamation by mob” scenario). Even accounting for the more modest evidentiary standard in the anti-SLAPP context — one “need not prove harm or causation, but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of harm and the relevant causal link” (Pointes at para 71) — this will still be extremely challenging for plaintiffs to establish in most cases.
Notwithstanding these concerns, Hansman affirms that the requirement to show a causal connection still applies in the ‘chorus of defamatory voices’ scenario: “Where the defendant is not the only one speaking out against the plaintiff, inferring a causal link between the defendant’s expression and the harm suffered by the plaintiff becomes more important and more difficult” (para 68). This reflects an important ‘holding of the line’ on the plaintiff’s need to address causation as part of their side of the balancing equation. Alleviating the causation requirement in a ‘multiple voices’ scenario risks having a serious chilling effect on expression.
In this case, the Court found the requisite causal link was missing. Relying on the findings of the motion judge, the Court found that “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” (para 71); 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 70); and that Neufeld had provided no more than a “bare assertion that the harm commenced after Mr. Hansman’s statements” (para 71).
Based on how the Court framed the causation analysis, some guidance may be taken for when causation could be satisfied in a ‘chorus of voices’ scenario. The Court’s focus on the independent nature of the other voices in the chorus suggests that the result of the causation analysis may have been different if the record showed that H’s statements precipitated or influenced the rest of the chorus. For example, in a case where a defendant’s social media post garners widespread attention and spurs an online chorus of similar defamatory statements, then the defendant would be harder pressed to rely on that chorus in arguing that the plaintiff has failed to meet their causation burden. (Moreover, it should be remembered that in defamation law, a defendant is responsible for republications of their defamatory statement by others, provided such republication had been reasonably foreseeable.)
The result in Hansman might also be different if the chronology of events could ground an inference that a specifically damaging event flowed from H’s statements. Here, however, the Court noted that the circumstances “pointed to a conclusion Mr. Neufeld had suffered limited reputational harm” since he “continued to express the same contentious views despite the public reaction and won re-election a year later” (para 69).
Conclusion
Overall, the result and reasoning in Hansman corrects some of the most problematic and potentially damaging aspects of the BCCA’s decision, demonstrates the Court’s commitment to afford significant protection to certain categories of expression at the public interest weighing stage, and reflects the Court’s continued willingness (as in Pointes) to use anti-SLAPP legislation to dismiss litigation at an early stage in the right circumstances.
[1] Bent v Platnick, 2020 SCC 23 at para 76.