The key ingredient to avoid dismissal as a SLAPP: harm, says the Supreme Court of Canada in Hansman v. Neufeld

Defendants in British Columbia, Ontario and Québec have increasingly invoked provincial anti-SLAPP legislation to defeat tactical lawsuits designed to supress free expression. The Supreme Court of Canada’s recent decision in Hansman v. Neufeld provides helpful guidance regarding when a court should dismiss a lawsuit as a SLAPP. Confirming that SLAPPs are not always initiated by the “rich and powerful”, the Court explained the “consistent defining feature” of SLAPPs as proceedings that “[act] to silence the defendant, and more broadly, to suppress debate on matters of public interest, rather than to remedy serious harm suffered by the plaintiff”.

What you need to know

• The Supreme Court confirmed that a plaintiff must demonstrate actual harm, not presumed or inferred harm, to defeat an anti-SLAPP motion.
• A plaintiff must provide more than a “bare assertion” that the defendant’s statements caused the plaintiff’s harm (particularly where the defendant is not the only cause of the alleged harm).
• The harm to be considered in the weighing exercise is harm to the plaintiff, caused by the defendant’s expression in issue, not the possible chilling effect from the plaintiff’s inability to sue.
• Counter-speech (speech that presents a response to an issue being publicly debated) is important to the exchange of ideas that underpins freedom of expression. Counter-speech falls close to the core of section 2(b) of the Charter and should weigh heavily in favour of protection.

The background

Mr. Neufeld, a school-board trustee, took to social media to publicly criticize a British Columbia government initiative targeted at ensuring that educators were equipped to teach students about gender identity and sexual orientation. His comments were widely considered to be derogatory and led to significant public backlash. Mr. Hansman, a teacher and former president of the British Columbia Teachers’ Federation, spoke out against Mr. Neufeld’s comments, calling them “bigoted, transphobic and hateful,” among other things¹. Mr. Neufeld sued Mr. Hansman for defamation. Mr. Hansman applied to have the action dismissed under British Columbia’s anti-SLAPP legislation, the Protection of Public Participation Act (the PPPA).

The anti-SLAPP legislation

Section 4 of the PPPA instructs a judge to dismiss an action arising from expression on a matter of public interest unless the plaintiff can satisfy the judge that the action has substantial merit; the defendant has no valid defence in the proceeding; and the harm to the plaintiff caused by the defendant’s expression is serious enough to outweigh the public interest in protecting that expression. Section 4 is “nearly identical” to Ontario’s anti-SLAPP framework at section 137 of the Courts of Justice Act.

The decisions below

At first instance, the Chambers Judge held that the defence of fair comment was available to Mr. Hansman, which was sufficient to dismiss the action entirely. The Chambers Judge nonetheless turned to the weighing exercise, in the event he was wrong on the merits of the action. He held that the public interest in protecting Mr. Hansman’s expression outweighed the harm likely suffered by Mr. Neufeld, because Mr. Neufeld had provided almost no evidence of harm, nor any evidence of a causal link that would allow the judge to conclude that Mr. Hansman’s statements caused the alleged harm. This was problematic for Mr. Neufeld given that Mr. Hansman was one of many speaking out against Mr. Neufeld.

The Court of Appeal reversed the Chambers Judge finding errors in the fair comment and weighing analysis. At the weighing stage, the Court of Appeal held that the Chambers Judge was overly focused on the subject matter of Mr. Hansman’s statements; failed to give effect to the presumption of damages in defamation and wrongly assumed that causation would be difficult to establish because others had made similar comments about Mr. Neufeld. Finally, the Court of Appeal held that the Chambers Judge failed to give effect to the potential chilling effect on future expression by the plaintiff, or others in his position.

The key issues

The Supreme Court considered two issues:

• If the Chambers Judge erred in the weighing exercise by concluding that the public interest in protecting Mr. Hansman’s expression mandated dismissal of the underlying action; and
• If the Chambers Judge erred in finding that Mr. Neufeld did not show grounds to believe Mr. Hansman had no valid fair comment defence.

The decision

The Supreme Court, with Justice Côté dissenting, overturned the Court of Appeal’s decision and restored the Chambers Judge’s decision. The central issue was “whether Mr. Hansman had a right to respond to Mr. Neufeld in the way he chose without the threat of civil liability”². The Court concluded that he did. Although Mr. Hansman used words such as “bigoted”, “intolerant”, and “hateful”, his words needed to be considered in the context of Mr. Neufeld’s own speech, which targeted a historically marginalized people. Mr. Neufeld demonstrated no real harm from Mr. Hansman’s expression while Mr. Hansman’s speech was made to “to counter expression he perceived to be untrue, prejudicial towards transgender and other 2SLGBTQ+ individuals, and potentially damaging to transgender youth”³.

At the weighing stage, the Court held that the Court of Appeal made three errors in concluding that the harm to Mr. Neufeld outweighed the public interest in protecting Mr. Hansman’s expression:

1. Mr. Neufeld failed to demonstrate any harm flowing from the impugned statements serious enough to outweigh the public interest in protecting Mr. Hansman’s expression.
2. The Court of Appeal’s consideration of the “chilling effect” factor was improper and contrary to how a chilling effect has been considered in freedom of expression jurisprudence.
3. The Court of Appeal failed to recognize Mr. Hansman’s expression as valuable counter-speech “motivated by a desire to promote tolerance and respect for a marginalized group in society.” It was thus deserving of significant protection.

Harm

The Court agreed with the Chambers Judge that Mr. Neufeld’s “bare assertions” of harm should be given little weight⁴. The weighing exercise in an anti-SLAPP motion requires a consideration of whether the harm is sufficiently serious to outweigh the public interest in expression. While general damages are presumed in defamation law, that presumption only establishes the existence of harm, not the seriousness of it. Giving effect to a presumption of damages in the anti-SLAPP analysis would “tip the scales in favour of the plaintiff”⁵. A plaintiff must provide evidence sufficient to enable a judge “to draw an inference of likelihood” of harm⁶. Presumed damages and bare assertions of harm will be insufficient to do so.

The Court also held that more than a bare assertion of causation was needed to demonstrate the link between a defendant’s statements and the plaintiff’s harm. Demonstrating a causal link is particularly important where, as in this case, multiple sources of harm to the plaintiff were present.

Chilling effect

The Court clarified that the harm relevant to the weighing exercise is harm from the defendant’s impugned statements, not the harm caused by the plaintiff’s inability to sue the defendant for those statements. Moreover, the possible chilling effect to a plaintiff’s ability to speak out, cited by the Court of Appeal, “turns the concept on its head”⁷. The Court rejected this application and confirmed that the chilling effect relevant to the weighing exercise on an anti-SLAPP motion is the concern that a possible legal penalty will limit expression on matters of public interest, because speakers fear punishment.

Public interest in expression

When assessing the weight to be given to the public interest in Ms. Hansman’s expression, the Court highlighted the importance of his expression as “counter-speech.” This form of expression “inheres in the recognition that the open exchange of ideas is a precondition to unlocking the value of free expression”⁸. Mr. Hansman’s expression was to be considered in the context of Mr. Neufeld’s statements—specifically, in that Mr. Hansman perceived those statements to be harmful and spoke out accordingly.

Conclusion

Ultimately, the importance of Mr. Hansman’s counter-speech outweighed the public interest in permitting the lawsuit to continue—particularly without any evidence of actual harm flowing from the counter-speech. The appeal was allowed on this basis. The Court went on to consider Mr. Hansman’s defence of fair comment and allowed the appeal on that basis as well, holding that Mr. Hansman’s comments were based in fact and recognizable as comment, in the context in which they were made.

This decision closes the emerging gap in the anti-SLAPP analysis between courts in British Columbia, where harm was being presumed, and Ontario, where courts required actual evidence of harm. The Supreme Court has made clear that some evidence of actual harm will be required to defeat an anti-SLAPP motion.