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Protection of Public Participation Act – SOGI Defamation Action Dismissed

The Protection of Public Participation Act (“PPPA”) came into force in British Columbia earlier this year.

The PPPA is of utmost importance. It protects British Columbians from being sued for expressing their views on matters of public interest. This new law safeguards people from strategic lawsuits against public participation (known as SLAPPs) which aim to limit or prevent freedom of speech and expression. The Act provides a defence to individuals and organizations from claims of defamation, libel and slander made against them for expressing their views on matters of public interest.

In order to successfully rely on the PPPA, there is a 2 stage process with the 2nd stage requiring the application to meet three separate requirements. First, the defendant/applicant must persuade the court that the action arises from an expression that relates to a matter of public interest. Second, if the first part of the test is satisfied, then the onus shifts to the plaintiff/respondent who must establish that:

(1) There are grounds to believe that:

(a) the proceeding has substantial merit, and

(b) the applicant has no valid defence in the proceeding, and

(2) The harm suffered, or to be suffered, by the plaintiff/respondent from the defendant/applicant’s expression is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.

Neufeld v. Hansman 2019 BCSC 2028 considers whether a defamation claim can be dismissed by the PPPA.

The background of the underlying defamation action lies within a dispute over the Ministry of Education’s publication of tools and resources relating to sexual orientation and gender identity (“SOGI”). The Ministry published these tools for teachers to use to discuss gender identity and roles in the classroom with a goal of promoting inclusiveness.

Barry Neufeld, the plaintiff, is an elected Chilliwack school trustee. He is an outspoken critic of SOGI. He criticized the Ministry and SOGI on social media saying that it allowed young children to “choose” their gender and that this amounted to “child abuse”. These comments sparked much public debate and they garnered a lot of media attention.

The defendant, the President of the British Columbia Teachers’ Federation (BCTF), publically called for the Barry Neufeld’s resignation made several statements disapproving of his statements including calling him transphobic, referring to his bigoted views and suggesting that he “tip toed quite far into hate speech”. In response, Barry Neufeld sued him for defamation.

In this case, the defendant applied to dismiss the defamation action brought against him by Barry Neufeld by relying on the PPPA.

In reviewing the evidence and considering whether or not the PPPA was applicable to the facts in this case, the trial judge dismissed Barry Neufeld’s defamation action against the Defendant:

[177] This action arises out of significant philosophical differences regarding the propriety of the Ministry of Education’s SOGI 123 materials. However, the outcome of this application has nothing to do with the “correctness” of either party’s position on that issue.

[178] Rather, this is a decision under the new PPPA legislation, which allows for the dismissal of an action if certain criteria are met. The plaintiff commenced a defamation action against the defendant in relation to a matter of public interest. The defendant concedes that some of his words could be capable of defamatory meaning. However, he argues that there is strong precedent from the Supreme Court of Canada, on very similar facts, stating that the defence of fair comment would apply to his statements. I have found that, viewing the facts through the “reasonableness lens”, no reasonable trier of this case could distinguish the facts in this case from the facts in WIC.

[179] I have further found that the PPPA requires me to balance the seriousness of the harm suffered by the plaintiff and the public interest in continuing the proceeding against the public interest in protecting the defendant’s expression. The plaintiff has an interest in claiming damages and clearing his good name. However, the public has an interest in protecting expressions that relate to public debate. In balancing those interests, I find that the interest in public debate outweighs the interest in continuing the proceeding on these facts.

[180] On the basis of the evidence before me and the analysis set out above, I find that the defendant has established the necessary grounds for a dismissal of the plaintiff’s action against him under the PPPA.

We offer legal representation to individuals and organizations who are being sued for expressing free speech on matters of public interest. Contact us for a free initial consultation to learn more about protecting your rights.

Tags: 3P Application, Anti-SLAPP Application, defamation

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