BCTF vs. Neufeld

BC’s Office of the Human Rights Commissioner is intervening in this case to seek clarity on where victims of hate crimes can turn for justice and about the boundaries between discriminatory speech and speech that is offensive but does not breach the Human Rights Code. 

Published on: August 24, 2023

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• Hate & racism

Background 

The case stems in part from a series of Facebook posts made by then-Chilliwack School Board Trustee Barry Neufeld, who made a series of statements about trans and queer-inclusive education.  

The BC Teacher’s Federation (BCTF) filed a complaint with the BC Human Rights Tribunal (BCHRT) alleging, among other things, that Mr. Neufeld engaged in speech that is likely to expose people to hatred or contempt on the basis of their gender identity or expression and sexual orientation.  

Mr. Neufeld applied to have the case dismissed by the BCHRT without a full hearing but the BCHRT declined to dismiss the complaint at that stage. Mr. Neufeld filed for judicial review of BCHRT’s decision declining to dismiss the case. The Commissioner intervened in the judicial review. 

B.C. Supreme Court review 

One of the questions in this case is whether the BCHRT has jurisdiction to hear a complaint about alleged hate speech published online or if the BCHRT cannot hear the complaint because internet content is within exclusive federal jurisdiction. This question is important because the answer determines where alleged online hate crime victims can turn to for a hearing of their human rights complaint—and whether there is a place they can seek justice. 

Another important question that may arise in this case is how to apply the legal test for hate speech when the speech targets people who are transgender or non-binary. 

The B.C. Supreme Court granted the Commissioner leave to make arguments on both these issues.   

The review was heard in B.C. Supreme Court on June 19–20, 2023. Shortly before the hearing began, Mr. Neufeld abandoned the jurisdictional issue described above. While the Commissioner’s written submission (linked under “Documents” below) still included her arguments on the jurisdictional issue due to the timing of the change in the case, her oral submission did not address these points since the Court was no longer considering them. For this judicial review, the Commissioner’s submission focused exclusively on how hate speech-related law should consider the unique stereotypes and forms of hate directed at transgender and non-binary people and communities. Those arguments are summarized in paragraphs 72–76 and 78 of the written submissions. 

On August 22, 2023, the B.C. Supreme Court released reasons dismissing Mr. Neufeld’s petition for judicial review (see the court documents tab below). The Court found that the petition was premature because it was brought before proceedings at the Tribunal fully concluded, which can only be done under exceptional circumstances. The Court acknowledged recent Supreme Court of Canada caselaw that suggests that transgender individuals may experience unique forms of hate speech and that, in all likelihood, this caselaw will be considered by the Tribunal at a full hearing into the present complaint.  

Human Rights Tribunal hearing 

The BC Human Rights Tribunal is holding a hearing about BCTF’s complaint against Neufeld beginning in July 2024. On July 4, the Tribunal focussed on the question of whether it has jurisdiction over allegations related to hate speech published online. Further topics will be discussed when the hearing resumes in the fall.  

The Commissioner’s Office made arguments about the BC Human Rights Tribunal’s jurisdiction over hate speech published online during the July portion of the hearing. On Aug. 8, 2024, the BC Tribunal issued a decision affirming its ability to hear cases about allegations of online hate speech.

This will be the Commissioner’s first intervention at the BC Human Rights Tribunal.

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