[39]
If he was wrong as to the validity of the fair comment defence, the
exercise (paras. 144 et seq.). He determined that the public interest in protecting
Mr. Hansman’s expression outweighed the harm likely suffered by Mr. Neufeld
(para. 145). Mr. Neufeld had “submitted almost no evidence of damage suffered”
(para. 161), nor did he offer any evidence that would allow the judge to draw a causal
link between any alleged harm and Mr. Hansman’s statements (paras. 147-50 and 158).
[40]
The chambers judge considered that many of Mr. Hansman’s statements
either commented on the need for safe and inclusive schools or did not mention
Mr. Neufeld. Those statements deserved significant protection. The weighing exercise
thus favoured dismissing the action (para. 160).
B.
[41]
Court of Appeal for British Columbia, 2021 BCCA 222, 50 B.C.L.R. (6th) 217
(Willcock, Fenlon and Voith JJ.A.)
Fenlon J.A., writing for the Court of Appeal, allowed the appeal and
reinstated the defamation action. She concluded that the chambers judge erred in his
assessment of the fair comment defence in several ways. The chambers judge erred in
relying on WIC Radio, given material differences between that case and this one, and
by “work[ing] from a summary of the type of comments made by Mr. Hansman rather
than addressing the specific expressions” (paras. 26-27 and 34). This analytical
approach caused the chambers judge to overlook elements of the fair comment defence
(paras. 27-29). In Fenlon J.A.’s opinion, there were grounds to believe that several
2023 SCC 14 (CanLII)
chambers judge considered the final step of his analysis: the public interest weighing
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