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Torts - Defamation - 'Counter-Speech'. Burjoski v. Waterloo Region District School Board
In Burjoski v. Waterloo Region District School Board (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from the denial of a SLAPP motion, here where a school board defendant was sued for defamation in the context of disputes over transgendered-issued books in school libraries.
The court considered the public interest, here in the form of 'counter-speech':(c) Public interest in the appellants’ speech
[86] The motion judge did not appear to attach any value to the Board Chair’s speech expressed in public media interviews after the shutdown of the respondent’s presentation. In weighing this interest anew, this court must consider both the quality of the speech, and the motivation behind it: Hansman, at para. 79. The closer the expression is connected to the core values of s. 2(b) of the Charter — “truth-seeking, participation in political decision-making and diversity in the forms of self-fulfillment and human flourishing” — the greater the public interest in its protection: Hansman, at para. 79.
[87] The defendants argue that the speech in question — offered in media interviews by the Board Chair — was counter-speech as defined by the Supreme Court of Canada in Hansman. They say that the Board Chair was motivated to counter the offensive statements made by the respondent, as those comments conveyed discriminatory stereotypes about transgender persons, and it was necessary to ensure that the school system was a welcoming place for all, including those in the trans community.
[88] The concept of counter-speech was described by the Supreme Court in Hansman, at para. 82:Counter-speech motivated by the defence of a vulnerable or marginalized group in society also engages the values at the core of s. 15(1); namely, the equal worth and dignity of every individual. Targets of degrading expression belonging to a vulnerable group in society may lack the ability or authority to effectively combat the harmful speech themselves. Discourse can then take on an uneven quality, making protective counter-speech by the group or individual’s more powerful advocates all the more influential and important. [Citations omitted.] [89] The motion judge, while referring to the concept of “counter speech”, found that the Board Chair was not motivated by a desire to defend persons from a marginalized group. He proceeded on the basis that the Board Chair was trying to justify his own behaviour in shutting down the respondent’s presentation. On the motion judge’s analysis, the Board Chair’s statements were rooted more in self-interest than a desire to vindicate the rights and dignity of transgender students.
[90] This characterization of the Board Chair’s motivation was undoubtedly influenced by the motion judge’s view that it was improper to shut down the respondent’s presentation, a view that was later rejected by the Divisional Court, albeit in different litigation. Even setting that aside, however, the motion judge was not moved by the argument that the Board Chair was acting in defence of a marginalized group. As he put it, “[r]egard for the historical and present plight of the transgendered, as articulated in paragraph 85 of Hansman, does not negate section 2(b) of the Charter.”
[91] There may well have been an element of self-justification in the Board Chair’s motives for speaking, but this is not necessarily nefarious. Public officials should explain their decisions to the communities that they serve. The Board Chair was pressed to explain why he had shut down the respondent’s presentation and it was appropriate for him to explain that decision to the public. The evidence would also support a finding that the Board Chair was motivated to respond to what he perceived to be inappropriate and discriminatory remarks.
[92] There is, accordingly, some public interest attaching to the Board Chair’s remarks, both as explanatory comment and as speech aimed at countering what he perceived to be the respondent’s “transphobic” remarks. To the extent that the Board Chair’s speech was aimed at countering speech that undermined the equal worth and dignity of a marginalized group, it has some of the hallmarks of counter speech.
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[98] However, it is one thing to counter discriminatory speech; it is quite another to counter speech that was not expressed. The mischaracterization of what the respondent said is at the core of the action. The Board Chair’s remarks would have led members of the public to perceive that the respondent said something far more insidious than she did. There is a public interest in defending the rights of those who are stigmatized, but this does not license speech that derogates from truth.
[99] In Hansman, the court, while recognizing the public interest in counter-speech, stressed that this does not translate into “open season” on reputation. As the court put it, at para. 92:Although one’s engagement in counter-speech does not amount to “open season” on reputation and speakers must always choose their words carefully, on the whole, Mr. Hansman’s words were not a disproportionate or gratuitous response to Mr. Neufeld’s statements. When confronted with views a person believes to be discriminatory, individuals often use words such as “bigoted”, “intolerant”, or even sometimes “hateful”. I note that Mr. Hansman’s expression generally focused on the views that Mr. Neufeld expressed, and not who he is as a person. [Citations omitted.] [100] Here, as in Hansman, the Board Chair’s comments focused on the respondent’s views rather than who she was as a person. However, here, unlike in Hansman, the Board Chair’s words could be seen as disproportionate or gratuitous in their characterization of the respondent’s remarks. The level of protection afforded to any particular expression will vary, but the public interest will invariably diminish for statements that contain deliberate misrepresentations or gratuitous attacks on a person’s reputation: Marcellin, at para. 102; Pointes Protection, at para. 75.
[101] The responsibility to be accurate took on an enhanced importance in this case, given that the Board chose not to post the recording of the meeting. As a result, the respondent’s words were not available to those members of the public who might want to check what she said for themselves. The public had only the Board Chair’s speech to rely upon. When he gave his interview to 570 News on January 19, 2022, the Board Chair knew that the recording was not available, and this ought to have reinforced the importance of accuracy in his own rendition of the respondent’s statements. In these circumstances, the public interest in protecting the Board Chair’s expression falls at the lower to middle range of the spectrum.
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