'Our position from the get-go was that none of these posts are discriminatory or hateful'
A former British Columbia school trustee is preparing to challenge a $750,000 penalty after the B.C. Human Rights Tribunal found he poisoned the workplace for LGBTQ+ teachers through a sustained public campaign against classroom resources on sexual orientation and gender identity.
Lawyer James Kitchen said his client, former Chilliwack Board of Education trustee Barry Neufeld, will apply for judicial review in B.C. Supreme Court of the tribunal’s decision ordering him to compensate members of the Chilliwack Teachers’ Association who identify as LGBTQ+, according to a report from The Canadian Press (CP).
The ruling, released on Feb. 18, followed a human rights complaint filed by the BC Teachers’ Federation and the Chilliwack Teachers’ Association on behalf of members spanning the period from October 2017 to 2022, CP said.
Kitchen told CP that he and Neufeld anticipated turning to the courts even before the tribunal hearing began. He described the outcome as a “foregone conclusion” and said they intend to contest “pretty much all of the findings” at B.C. Supreme Court, with the possibility of a further appeal to the B.C. Court of Appeal.
He said he expects the judicial review application to be ready in early to mid-March. “Our position from the get-go was that none of these posts are discriminatory or hateful and so we’ll get to the B.C. Supreme Court and we’re going to argue pretty much the same thing,” Kitchen said in the CP report.
Public comments created discriminatory work environment: tribunal
In its reasons, the tribunal concluded that over about five years Neufeld engaged in a public campaign that “publicly denigrated LGBTQ people and teachers and associated them with the worst forms of child abuse,” creating a discriminatory work environment for teachers in the Chilliwack district, according to the decision.
“We have found that Mr. Neufeld poisoned the Class members’ workplace with anti-LGBTQ discrimination,” the tribunal said. “The right to work free of discrimination is a fundamental right in societal participation.”
The tribunal found that Neufeld’s statements, while framed as criticism of SOGI 123 — a set of classroom resources addressing sexual orientation and gender identity — went beyond policy disagreement. It held that he exposed educators to repeated messages that “their very existence was a threat to children, families and social order,” and said he drew on “the most insidious discriminatory stereotypes and tropes” while teachers were attempting to create inclusive classrooms for LGBTQ+ students.
The decision also stated that Neufeld’s comments included warnings that teaching children about diverse sexual orientations primes them for sexual abuse and that he “characterized trans people, especially children, as confused, abused, manipulated, sexualized, mutilated and deceptive.”
Neufeld denied that his statements were derogatory and argued he was “simply targeting a set of ideas,” the CP report said. The tribunal rejected that argument and concluded his words targeted and harmed LGBTQ+ people and teachers themselves.
Posts seen on social media are drivers of emotion and motivation among employees, according to a previous report.
Legal strategy may target finding of 'hateful' expression
Kitchen said his submissions at the tribunal were crafted with a future court challenge in mind and that many of the same points will be raised on judicial review, CP reported. He indicated the legal team may place particular emphasis on the tribunal’s conclusion that Neufeld’s posts were hateful, not just discriminatory.
“We may focus more on the hateful bit than the discrimination bit because obviously the implications for that for society are more grave,” he said.
A judicial review will not re-hear all the evidence but will examine whether the tribunal acted within its legal authority and reached its conclusions in a way that meets the standard of reasonableness and procedural fairness.
Record award against individual draws legal questions
The size of the award has drawn attention among human rights practitioners. Human rights lawyer Susan Kootnekoff told CP that human rights tribunal decisions and damage awards are rising across Canada and Neufeld’s case appears to set a new benchmark in British Columbia.
“It’s certainly the highest award that I’m aware of that the BC Human Rights Tribunal has made against an individual to date,” she said. Kootnekoff, founder of Inspire Law in Kelowna, B.C., noted that the complaint itself was “not that common” because it was brought against an individual rather than an employer, and called the total “certainly a high award against only an individual.”
Kootnekoff said one possible ground of challenge lies in how the tribunal calculated the $750,000 figure. The decision records that the complainants estimated that between 15 and 16 per cent of their members “likely identify as LGBTQ,” and it set individual awards ranging from about $4,600 to nearly $17,000 per affected member.
“That’s quite a large range,” she said. “The number might be subject to challenge.”
She also said tribunals owe a duty of fairness to those appearing before them and suggested that larger monetary awards may demand a correspondingly higher standard of fairness. “If you have a higher damage award, arguably you’re required to exercise a higher level of fairness,” she said.
