[111]
More on point are the many cases in which Canadian courts have
homophobic, transphobic, bigoted, racist, or sexist are properly characterized as
comment, not fact (see Mondal v. Evans-Bitten, 2022 ONSC 809, 82 C.C.L.T. (4th)
327, at paras. 3-7 and 34; see also Awan v. Levant, 2016 ONCA 970, 133 O.R. (3d)
401, at para. 84 (“[c]alling someone prejudiced will normally be a conclusion or
opinion”); Volpe, at para. 232 (a statement that a person is “homophobic, transphobic,
or anti-LGBTQ2S+” was a comment); Bernier v. Kinsella, 2021 ONSC 7451, 73
C.P.C. (8th) 280, at para. 50 (“A statement that a person is racist or a misogynist is a
generalization or conclusion that is not itself either true or false.”)). I agree that an
allegation of bias or prejudice is “a debatable assertion as to a state of mind” and will
typically be classified as a comment (P. A. Downard, The Law of Libel in Canada
(5th ed. 2022), at pp. 298-99).
[112]
A few statements are arguably closer to the line between comment and fact.
While not strictly necessary to decide, given my conclusion as to the public interest
weighing exercise, I would agree with the chambers judge that, in the specific context
of this case and given the supporting facts included in each publication, a reasonable
reader would have interpreted the statements as expressions of Mr. Hansman’s opinion.
For example, the statement that Mr. Neufeld violated his obligations as a school board
trustee could arguably be taken as an imputation of fact, especially given that
Mr. Hansman’s role as president of the BCTF might give readers the impression he is
an authority figure on such matters. But an allegation that a politician has not lived up
2023 SCC 14 (CanLII)
determined that “loose, figurative or hyperbolic” labels (WIC Radio, at para. 26), like
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