Burjoski v. Waterloo Region District School Board, 2023 ONSC 6528

COURT FILE NO.: 415/22

DATE: 20231123

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Caroline Burjoski, plaintiff, responding

AND: Waterloo Region District School Board and Scott Piatkowski, defendants, moving parties

BEFORE: Mr Justice J.A. Ramsay

COUNSEL: Justin Hempel for the plaintiff; Kevin A. McGivney, Natalie Kolos for the defendants

HEARD: November 22, 2023 at Kitchener by videoconference

ENDORSEMENT

[1] The defendants moved under s.137.1 of the Courts of Justice Act for summary dismissal of this action in defamation and intentional infliction of emotional suffering. Here are the reasons for my disposition of the motion from the bench and my decision on costs.

[2] The plaintiff is now a retired school teacher. She spent much of her career teaching English as a second language to immigrant and refugee children. The plaintiff believes that gender dysphoria is a serious issue. She became concerned about two books which, in her opinion, portrayed transsexual themes in a misleading way. She thought, for instance, that it was misleading for a character to conclude that he was asexual before puberty. In another case she thought that the implications of infertility were not adequately explored. On January 27, 2022 she was given 10 minutes to make a presentation to the school board. She began to express her concerns without disparaging transsexual persons. She did not deny the right to exist of trans persons and she did not make remarks that are disrespectful of trans persons. She did express doubt that gender affirmation surgery was appropriate for everyone who presented with “emotional and social distress.” After four minutes, she was stopped on the ground that she was in breach of the Human Rights Code.

[3] As counsel for the defendants correctly conceded, the Human Rights Code does not prohibit public discussion of issues related to transgenderism or minors and transgenderism. It does not prohibit public discussion of anything.

[4] After the meeting, the chairman of the board gave interviews to the media. On January 18, 2022, in an interview with CTV News he said:

a. The plaintiff’s comments were “transphobic”.

b. Her comments “questioned the right to exist of trans people”.

c. He had no choice but to stop the presentation and expel the plaintiff from the meeting.

[5] The board made the following public posting:

The recording of the livestream [of the meeting] was not officially posted due to concerns over a Human Rights Code violation. We are also sensitive to the many students, staff and members of the wider community who were impacted by comments made during the meeting.

[6] On January 19, 2022, the chairman gave an interview to 570 News. He said:

a. The plaintiff’s presentation “violated WRDSB policy and the Human Rights Code”.

b. He had to warn the plaintiff and after giving her a second chance, she “doubled down”.

c. The plaintiff was “out of order.”

d. He did not want to “give oxygen” to the plaintiff’s comments that Burjoski made during the meeting.

e. The plaintiff spoke at the meeting in a way that was “disrespectful” and that “would cause transgendered people to be attacked.”

f. The plaintiff was “not respectful or courteous towards transgendered people” during her presentation.

g. The plaintiff “violated the rules for delegations”.

h. The plaintiff had reached the point of a violation, her comments were escalating, and they needed to be stopped.

i. The plaintiff was “not promoting healthy debate” during the meeting.

j. In referring to the decision to stop the plaintiff’s presentation, the board “had a responsibility to not allow hate into our board meeting”.

[7] The chairman admitted in cross-examination that what the plaintiff had said to provoke his comments was, “this book makes very serious medical interventions seem like an easy cure for emotional and social distress.” Members of the public could not check to see for themselves what she had said because the board removed the recording of the meeting from its website, although they might have found it on the CTV site.

Prevention of Gag Proceedings

[8] The Courts of Justice Act provides:

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non- verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity. 2015, c. 23, s. 3.

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. 2015, c. 23, s. 3.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. 2015, c. 23,

s. 3.

[9] The defendants say that the motion raises the following issues:

a. Do the defendants’ expressions relate to a matter of public interest?

b. If so, can the plaintiff establish that there are there grounds to believe that:

i. The plaintiff’s claims have substantial merit, and

ii. The defendants have no valid defence in the proceeding, and

c. That the harm alleged to have been suffered by the plaintiff is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the defendants’ expression?

Public interest

[10] Why the chairman of the school board silenced a member of the public was a matter of public interest. The impugned comments of the chairman are expressions on a matter of public interest.

Substantial merit and available defences

[11] The plaintiff’s claims, however, have substantial merit. The comments of the board’s agents were defamatory. For example, they accused her of breaching the Human Rights Code, questioning the right of trans persons to exist and engaging in speech that included hate. She did not do any of those things.

Defences – justification

[12] In view of the plain words, all of which are recorded, I see no reasonable grounds to believe that the defence of justification will succeed.

Defences – fair comment

[13] The defence of fair comment requires the defendant to prove that the statement constituted comment, that it had a basis in true facts, and that it concerned a matter of public interest. If the defendant establishes that, the plaintiff has the burden to prove malice: Simpson v. Mair, 2008 SCC 40.

[14] I see no prospect that the defendant will be able to prove that his statements had a basis in true facts. He said that the plaintiff said things that she did not say. Furthermore, by taking the presentation off the website, the corporate defendant prevented members of the public from ascertaining the true facts.

[15] Finally, a showing of malice defeats a valid fair comment defence. This can be done by demonstrating that the defendant made the statement knowing it was false, with reckless indifference as to its truth, to injure the plaintiff out of spite or animosity, or for some other improper purpose. Proof of malice may be intrinsic or extrinsic: that is, it may be drawn from the language of the assertion itself or from the circumstances surrounding the publication of the comment. A finding of a subjective honest belief negates the possibility of finding malice. See Simpson v. Mair.

[16] It is a ready inference that the chairman of the board acted with malice or at least, with a reckless disregard for the truth. He had made an embarrassingly erroneous and arbitrary decision to silence a legitimate expression of opinion and he was widely criticized for it. It is not a stretch to infer that, realizing that, he tried to justify himself with the public by assassinating the plaintiff’s character.

Defences – qualified privilege

[17] The impugned comments were not made in the board meeting. But under s.281.4(e) of the

Education Act the chairman of the school board has the duty to act as spokesman for the board.

This may give him qualified privilege. Again, however, there are no grounds to believe that the plaintiff has no prospect of proving malice, as I have just said.

[18] The case is to be distinguished from Hansman v. Neufeld, 2023 SCC 14. In that case, the plaintiff made extreme statements questioning the validity and legitimacy of the LGBTQ lifestyle, which could fairly have been characterized as homophobic. The “counter speech,” which mostly consisted of comments on the plaintiff’s views, had to be evaluated in that context, and duly protected. Furthermore, in the present case, the chairman was not defending a disadvantaged group. He was defending himself.

Defences – jurisdiction

[19] Finally, this court has jurisdiction over the subject-matter of the action. The plaintiff may have been an employee of the board at the time of the alleged tort, but the subject-matter of the action has nothing to do with the interpretation or application of the collective agreement. The school board did not purport to exercise discipline or any other power that it has over an employee. The chairman stopped the plaintiff’s presentation, just as he was entitled to stop anyone’s presentation to a meeting. This is a matter for the court, not a labour arbitrator.

[20] In conclusion, the plaintiff’s case for defamation has substantial merit and I have no reasonable grounds to believe that the defendants have a valid defence.

Intentional infliction of emotional suffering

[21] The tort of intentional infliction of mental suffering has three elements. The plaintiff must prove:

a. The defendant's conduct was flagrant and outrageous;

b. The defendant's conduct was calculated to harm the plaintiff;

c. The defendant's conduct caused the plaintiff to suffer a visible and provable illness.

[22] For the conduct to be calculated to produce harm, either the actor must desire to produce the consequences that follow, or the consequences must be known by the actor to be substantially certain to follow. Intent, as opposed to negligence, is required: Boucher v. Wal- Mart Canada Corp., 2014 ONCA 419.

[23] I think the inference that the chairman intended to cause a visible illness, or that he knew that it was substantially certain to follow, is too much of a stretch. There are reasonable grounds to believe that the defendants have a valid defence to this claim. The injury, of course, remains relevant to damages on the tort of defamation.

Weighing the public interest in proceeding against protection of defendant’s expression

[24] Finally, the harm allegedly suffered is serious enough that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the defendant’s

expression. The media coverage went world-wide. The plaintiff alleges serious damage to the reputation that she spent decades establishing and emotional distress that led to physical harm.

[25] The purposes of section 137.1 are stated to be, among other things, to encourage individuals to express themselves on matters of public interest and to promote broad participation in debates on matters of public interest. Here it is not the plaintiff, but the defendant who seeks to discourage open discussion of matters of public interest.

[26] I find it regrettable that the defendant who is trying to shut down debate is an arm of the government. Regard 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. What happened here should not happen in a democratic society.

Conclusion

[27] The action for intentional infliction of mental suffering is dismissed. Otherwise the motion is dismissed and the action for defamation will continue.

Costs

[28] The normal rule that costs are awarded to the successful party does not apply. According to s.137.1(8), a successful defendant is prima facie entitled to full indemnity. A successful plaintiff is not entitled to costs, unless the judge determines that such an award is appropriate in the circumstances. Here success was mixed. I conclude that the plaintiff was more successful because the proceeding has been allowed to continue.

[29] In my view the circumstances, especially those mentioned in paragraph 25 and 26 of this decision, make partial indemnity to the plaintiff appropriate. The defendant’s bill of costs amounts to about $47,000 for full indemnity and about $31,500 for partial indemnity. The plaintiff’s amounts to about $37,000 for partial indemnity. I think that the plaintiffs should have partial indemnity.

[30] The amount sought by the plaintiff would reasonably have been contemplated. I award a bit less, $30,000, to reflect the defendants’ partial success. I order the defendants to pay

$30,000 costs to the plaintiff within 30 days.

J.A. Ramsay J.

Date: 2023-11-23