THE ADVOCATE 223
VOL. 78 PART 2 MARCH 2020
The First Decision Rendered Under the Protection of Public Participation Act
In the first anti-SLAPP decision released by the B.C. Supreme Court, Neufeld
v. Hansman,24 the defendant applied to dismiss the plaintiff’s defamation
action pursuant to s. 4 of the PPPA. He argued that the plaintiff sued him
because of comments that he made in relation to a subject that was of public
interest—namely, sexual orientation and gender identity materials distributed
to public schools.
The court found that the PPPA required it to balance the seriousness of
the harm suffered by the plaintiff and the public interest in continuing the
proceeding against the public interest in protecting the defendant’s expression.
The court found that while the plaintiff had an interest in claiming
damages and clearing his good name, the public had an interest in protecting
expression relating to public debate.
Notwithstanding the defendant’s conceding that some of his words could
be capable of defamatory meaning, the court found that the defendant had
a valid defence of fair comment. In balancing the interests at play, the court
concluded that the interest in public debate outweighed the interest in continuing
Neufeld illustrates that even a meritorious defamation claim can be dismissed
pursuant to the PPPA, provided there is a valid defence to the claim.
With the advent of the Internet, public discourse is louder than ever. Anyone
can speak at “speaker’s corner” any hour of the day, any day of the year.
Defamation claims seem to be on the rise. In this milieu, and to state the
obvious, the PPPA is a bold and important legislative development.
While there is a growing body of case law in Ontario, it is not yet known
if courts in B.C. will follow along or go their own way in interpreting the language
of the PPPA. While Attorney General David Eby, Q.C., in speaking
about the legislation during legislative debate, emphasized that the legislation
is not intended to provoke a contest of liability as determinative of the
outcome, it seems predictable that many counsel will make this the battleground.
But the intention of the legislation is not to create a new form of preliminary
trial. Rather, the essential aspect of the legislation, and the essential
challenge for the courts, is to find the balance between the right to vindication
of reputation and the right to speech free from fear of a defamation
claim. To put it another way, the legislation is intended to provide a mechanism
for the dismissal of otherwise meritorious claims in favour of freedom