[173]
It is undeniable that Mr. Hansman’s counter-speech concerned the
implementation of SOGI 123. But Mr. Hansman did not limit himself to criticizing
Mr. Neufeld’s views on SOGI 123 or to affirming his support for inclusive schools. He
made personal attacks and serious hate speech accusations that were likely to cause or
that did cause significant harm to Mr. Neufeld. This lowers the public interest in
protecting his speech, as “defamatory statements and personal attacks are ‘very
tenuously’ related to the core values which underlie s. 2(b) of the Charter” (Thorman
v. McGraw, 2022 ONCA 851, 476 D.L.R. (4th) 577, at para. 15; see also Hill, at
para. 106; Pointes, at paras. 74-75; Bent, at para. 163).
[174]
What is really going on in the present case is not an attempt to suppress
Mr. Hansman’s expression. Rather, this is “a case in which one party is attempting to
remedy seemingly legitimate harm suffered as a result of a defamatory communication”
(Bent, at para. 172). In other words, the harm likely to have been or to be suffered by
Mr. Neufeld strongly militates in favour of allowing the proceeding to continue
(para. 159).
[175]
Restricting the availability of tort actions for defamation can have a chilling
effect. In Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203, this Court refused to
extend the defence of qualified privilege to defamatory statements related to the fitness
of political candidates, in part because it would deter future candidates from seeking
office (pp. 208-9; see also Hill, at para. 106). Likewise, in the context of defamatory
2023 SCC 14 (CanLII)
importance of ensuring inclusive schools for LGBTQ students through the
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