Court dismissed school board's anti-SLAPP motion against teacher, saying claim meets threshold
A retired teacher who criticized books about gender identity at a school board meeting can proceed with her defamation lawsuit against the Waterloo Region District School Board, the Ontario Court of Appeal ruled Tuesday.
The OCA dismissed the school board’s anti-SLAPP motion against Carolyn Burjoski, reasoning that Burjoski’s lawsuit was focused on correcting the “serious harm to her reputation that she alleges she has suffered as a result of comments made by the board and the board chair” about her criticisms.
“In bringing her claim, the respondent was not preventing the board from expressing views or enforcing policies aimed at addressing the disadvantage experienced by transgender persons,” the OCA said.
Justices Patrick Monahan and Renee Pomerance authored the decision for the court. Justice Benjamin Zarnett concurred.
The dispute began at a public school board committee meeting in 2022, during which Burjoski gave a 10-minute presentation on the board’s library collection review. Burjoski criticized several books that discussed gender identity and continued with her discussion after the board’s chair cautioned her not to say anything that would violate Ontario’s Human Rights Code.
The board chair cut Burjoski’s presentation short and later gave interviews to local news outlets that called her comments transphobic and in violation of the Human Rights Code.
Burjoski filed a statement of claim against the chair, Scott Piatkowski, and the Waterloo school board, seeking damages for defamation and intentional infliction of mental or emotional suffering. Burjoski also applied for judicial review of the board’s decision to affirm Piatkowski’s choice to cut her presentation short.
The defendants responded with an anti-SLAPP motion to dismiss the case. Anti-SLAPP motions are designed to discourage abusive litigation that aims to silence or intimidate defendants.
A lower court dismissed Burjoski’s judicial review application, ruling that the school board acted reasonably when it upheld Piatkowski’s decision to stop her presentation. The court also dismissed the plaintiff’s claim that she suffered mental or emotional suffering at the hands of the school board.
However, the judge found that Burjoski’s defamation claim had merit. The judge said that a video recording of the meeting showed that while the retired teacher did express doubts that gender affirmation surgery was for everyone who was socially and emotionally distressed, she did not disparage transgender individuals or their right to exist. The judge also found that the school board had no valid defences to the defamation claim.
The OCA upheld the lower court’s decision. While the court said it acknowledged “the extreme vulnerability and disadvantage of transgender persons,” anti-SLAPP motions are not a “minitrial on the merits of a plaintiff’s claim.”
Instead, these motions are “intended to shut down plaintiffs who file abusive claims that have the effect of silencing opposing views, rather than to vindicate an apparently legitimate claim.”
The OCA said its role at this stage is narrow. “Our mandate on this appeal is not to make a final determination as to whether the statements by the board and the board chair were true or untrue, and whether the statements actually caused the harm which the respondent says she suffered as a result,” the court wrote.
“We merely assess whether there is sufficient merit to the respondent’s claim such that it should be permitted to continue to a hearing on the merits,” the OCA said, adding that “the respondent’s claim surpasses this modest threshold.”
Justin Heimpel, a partner at Sorbara, Schumacher, McCann LLP who represents Burjoski, told Law Times on Tuesday that he was pleased “that the court of appeal was able to distinguish the unique facts of this case from other anti-SLAPP cases involving issues with transgender persons and focus on what this case was really about.”
Heimpel added, “The court of appeal identified correctly that the board chair’s mischaracterization of what Ms. Burjoski said at the meeting was at the core of this action. It found that the board chair’s remarks would have led members of the public to perceive that Ms. Burjoski said something far more insidious than she did – while there is a public interest in defending the rights of those who are stigmatized, this does not license speech that derogates from the truth.”
The lawyer hoped the court’s decision would “serve as caution to future litigants about continued misuse of the [anti-SLAPP] legislation.”
Counsel for the school board did not respond to a request for comment.