Ex-school trustee Barry Neufeld is appealing his loss in the defamation suit from trustee Carin Bondar for calling the science communicator a "striptease artist."
Neufeld's lawyer Paul Jaffe filed an "appellant's factum" in the B.C. Court of Appeal on Aug. 1, positing that the trial judge erred in deciding in favour of Bondar, awarding her $45,000 in damages for the "impugned words" uttered by the former trustee.
Neufeld is now seeking to have the defamation order, and damages set aside.
It was Neufeld’s characterization of Bondar on an internet talk show as “that striptease artist” during the 2022 school board election campaign that led to the lawsuit. He was referring to the fact that Bondar had won the by-election, but that characterization was deemed "objectively insulting" and "demeaning" by Justice K. Michael Stephens, in his reasons for judgment on April 11.
Neufeld was ordered to pay general damages of $35,000 and punitive damages of $10,000, with the judge stating that “no defences were made out," meaning their arguments did not hold up.
In his reasons Justice Stephens said the impugned words were “objectively insulting (beyond mere words of abuse that injure a plaintiff’s feelings) and demeaning to Dr. Bondar, a woman who was running for school board trustee in her community,” and also noted that Neufeld had refused to apologize or retract the comment.
The judge further contends Mr. Neufeld was “inaccurately equating, or substantially equating, a fleeting image” of Bondar being shown naked from behind in her science-focused video with that of a ‘striptease artist.’”
“This was an effort to discredit his opponent in a school board trustee election, which crossed the line and constituted defamation,” Stephens wrote in his conclusion.
The science video in which Bondar appears to be swinging on a wrecking ball was about evolution and natural selection was created by Bondar in 2014 as a parody of the pop song, Wrecking Ball by Miley Cyrus, titled ‘Organisms do Evolve.’
Bondar was at the time an adjunct instructor in the biology department at the University of the Fraser Valley, with a large online following that led to millions of views of her science education videos.
The judge said Neufeld’s comment was not an accurate characterization, and denied all three defences Neufeld's team tried to offer: defences of justification, fair comment and qualified privilege.
Neufeld's lawyer is now setting out the basis for their appeal by taking issue with the reasons for judgment:
"The Judge erred by: finding the Impugned Words were defamatory; rejecting the defence of justification; rejecting the defence of fair comment; rejecting the defence of qualified privilege; In the alternative, the judge erred in his assessment of damages."
Regarding the judge's decision: "If this Judgment is correct, people expressing honestly held views about whether particular performances are striptease may now be punished if a judge takes a different view.
"This exceeds the purpose of defamation law, sends a chilling message to participants in the public arena and undermines freedom of expression. In taking a narrow and highly technical approach to the 'Impugned Words' the judge closed his eyes to surrounding circumstances such as the reputations of both parties and the notorious nature of Chilliwack school board politics."
Counsel for Neufeld argue the decision ignored the "highly charged public arena," adding that "anybody reasonably well informed would know that school board politics in Chilliwack involves: the “use of intemperate, offensive or harsh language aimed at discrediting one’s opponent."
Regarding the damages award of $45,000, the factum had this to suggest: "If the judgment on liability is not set aside, it is submitted that nominal damages are warranted. The objective evidence and common sense rebuts any actual damages.
"As to punitive damages [para. 167]: Mr. Neufeld had an honest belief that 'striptease artist' was an accurate description. There was no malice or dishonesty or other kind of misconduct remotely close to that which warrants punitive damages. The basis for awarding punitive damages is not ascertainable."
