Chilliwack Teachers’ Association v. Neufeld (No. 5), 2024 BCHRT 332
Date Issued: November 28, 2024
File: CS-001372
Indexed as: Chilliwack Teachers’ Association v. Neufeld (No. 5), 2024 BCHRT 332
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
British Columbia Teachers’ Federation obo Chilliwack Teachers’ Association
COMPLAINANT
AND:
Barry Neufeld
RESPONDENT
AND:
BC’s Office of the Human Rights Commissioner
INTERVENOR
REASONS FOR DECISION
ADMISSIBILITY OF EXPERT EVIDENCE
Section 27.2
Tribunal Members: Devyn Cousineau, Robin Dean, Laila Said Alam
Counsel for the Complainant: Lindsay A. Waddell and Alanna Tom
Counsel for the Respondent: James SM Kitchen
Counsel for BC’s Human Rights Commissioner: No submissions
I INTRODUCTION
[1] The complaint arises out of statements and publications made by Barry Neufeld during his tenure as an elected Trustee of the Chilliwack Board of Education, about the provincial curriculum on sexual orientation and gender identity. The British Columbia Teachers’ Federation [ BCTF ] and the Chilliwack Teachers’ Association [ CTA ] bring this complaint on behalf of CTA members who identify as 2SLGBTQ+ [ the Class ]. They allege that Mr. Neufeld’s statements discriminated against the Class based on their gender identity, gender expression, and/or sexual orientation in violation of ss. 7 and 13 of the Human Rights Code .
[2] The hearing of the complaint is underway. In support of their case, the Class seeks to admit expert evidence from Elizabeth M. Saewyc about the harms associated with discriminatory speech. Mr. Neufeld objects to the admissibility of this expert evidence. Dr. Saewyc testified, and was cross-examined, about her qualifications. Both parties made submissions.
[3] For the reasons that follow, we find that Dr. Saewyc is qualified as an expert in the impacts of stigma on sexual and gender minority populations. We find that her expert evidence is necessary and appropriate, and we admit it as evidence in this hearing: Human Rights Code, s. 27.2.
II DECISION
[4] The Tribunal has discretion to admit evidence that it considers “necessary and appropriate, whether or not the evidence or information would be admissible in a court of law”: Code , s. 27.2. In exercising this discretion, it is cognizant of the well known dangers of expert evidence, including that it can “distort the fact finding process”, create a risk that a decision maker relies on “junk science” or “unproven material not subject to cross-examination”, and “lead to an inordinate expenditure of time and money”: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 18; R . v. Mohan , [1994] 2 SCR 9 [ Mohan ] at p. 21. To guard against these dangers, the Tribunal follows the analysis laid out by the Supreme Court of Canada in Mohan and White Burgess . In doing so, it may modify any of the court’s admissibility criteria where it is satisfied that the evidence is necessary and appropriate in the circumstances of the particular case: Code , s. 27.2; Oger v. Whatcott (No. 5), 2018 BCHRT 229 [ Oger (No. 5) ] at para. 22.
[5] The analysis proceeds in two stages. First, the party seeking to introduce the evidence – here, the Complainants – must establish the threshold requirements of admissibility: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert: Mohan , at para. 17; White Burgess at para. 23. Second, the Tribunal balances the potential risks and benefits of admitting the evidence: White Burgess at para. 24.
[6] I begin with the threshold requirements.
A. Relevance
[7] Expert evidence is relevant where it is “logically probative of an issue that is required to be proved”: Pinch (Guardian ad litem of) v. Morwood, 2016 BCSC 75 at para. 12. The Tribunal must consider whether the proposed evidence tends to prove or disprove a material fact at issue in the complaint.
[8] The Complainants bring this complaint under ss. 7 (discriminatory publication) and 13 (discrimination in employment) of the Code. To prove their complaint under s. 7(1)(a), the Complainants must prove that Mr. Neufeld’s statements and publications had a discriminatory effect or were intended to have a discriminatory effect on the Class: s. 7(1)(a). Under s. 7(1)(b), they must prove that, in the view of a reasonable person, aware of the context and circumstances, Mr. Neufeld’s publications expose the Class to detestation and vilification on the basis of their gender identity or expression, and/or sexual orientation: s. 7(1)(b). Under s. 13, the Complainants must prove that Mr. Neufeld’s statements adversely impacted them in their employment in connection with their sexual orientation, gender identity and/or gender identity. If the Complainants prove their complaint, the Tribunal will have to decide what remedy to award. One of the remedies they are seeking is compensation to members of the Class for injury to their dignity, feelings, and self-respect.
[9] The proposed expert evidence relates generally to the harms associated with discriminatory speech. In her expert report, Dr. Saewyc answers five questions:
a. What are the harms associated with homophobic or transphobic speech directed at LGBTQ2S+ people?
b. Are there particular harms or risks associated with speech that connect LGBTQ2S+ people with child abuse, pedophilia, and grooming?
c. Are there particular harms or risks associated with speech directed towards people who support or provide care for transgender and non-binary people?
d. Are there harms when homophobic or transphobic speech occur in, or relate to, the workplace?
e. If public or political figures make transphobic or homophobic statements, is there evidence that this affects LGBTQ2S+ people in their workplaces?
[10] The Complainants argue that Dr. Saewyc’s answers to these questions are relevant to the issue of whether Mr. Neufeld’s statements and publications adversely impacted the teachers in the Class in connection with their protected characteristics, both in the context of their employment (s. 13) and discriminatory publication (s. 7(1)(a)). They say it is also relevant, though to a lesser extent, to the question of whether his publications constituted hate speech under s. 7(1)(b). They argue that her evidence will highlight the expansive ways that people may be adversely impacted by speech and is the sort of evidence the Tribunal regularly considers.
[11] Mr. Neufeld argues that Dr. Saewyc’s proposed evidence is not relevant to any of the issues in the complaint. He argues, first, that the whole opinion is premised on a finding that there has been discrimination. Second, he argues that the best evidence about adverse impacts comes directly from members of the Class, some of whom will be testifying. Third, he argues that much of the opinion is completely irrelevant or otherwise inadmissible. He conceded in his oral argument that some of Dr. Saewyc’s evidence may be relevant to an assessment of damages.
[12] We are satisfied that Dr. Saewyc’s proposed evidence is relevant to several issues we must decide. First, the Tribunal will need to situate its analysis in the social context of the complaint: see e.g. Oger at paras. 60-71. In this case, that means understanding the types of speech that can adversely impact LGBTQ2S+ people in connection with their protected characteristics, and the ways in which that speech has been shown to impact them in various spheres, including specifically for teachers who work with children. Dr. Saewyc’s evidence is relevant to that broader context. Second, and relatedly, Dr. Saewyc’s evidence is relevant to the legal issues of whether Mr. Neufeld’s statements adversely impacted members of the Class and the possible or likely impacts of those statements in the work environment. Finally, as Mr. Neufeld conceded, her evidence may be relevant to an assessment of damages. This is not an exhaustive list of issues for which Dr. Saewyc’s evidence may be relevant. At this threshold stage, it is sufficient to identify that the evidence is logically probative of at least some of the main issues that the Tribunal must address.
[13] In reaching this conclusion, we observe that this evidence may be particularly useful in this case, which is a representative one in which only a few members of the Class will testify. The Tribunal will be asked to extrapolate from the Class members’ evidence, and expert evidence, to draw conclusions about whether and how members of the Class were impacted by Mr. Neufeld’s comments. In our view, Dr. Saewyc’s evidence is likely to be particularly helpful in the context of a class complaint.
B. Necessity in assisting the trier of fact
[14] Expert evidence is necessary where it “provides information ‘which is likely to be outside the experience and knowledge of a judge’”: Mohan at p. 23, quoting R. v. Abbey, [1982] 2 SCR 24. This is perhaps the most strongly contested part of the analysis.
[15] The Complainants argue that Dr. Saewyc has knowledge outside the experience of the Tribunal, grounded in research and academic literature. They acknowledge that some of Dr. Saewyc’s evidence may be the subject of judicial notice, and/or within the Tribunal’s specialized expertise as a human rights body. However, they explain that they tender the evidence out of an abundance of caution, in the event the Tribunal does not take judicial notice of important social facts.
[16] Mr. Neufeld argues that Dr. Saewyc’s evidence is not necessary because members of this Tribunal have specialized expertise in the issues she addresses in her report, including structural and enacted stigma and the harms of discrimination. He further argues that much of the opinion is common sense not requiring an expert opinion: where there’s discrimination, there’s harm. He argues that the main principles set out in Dr. Saewyc’s evidence are well established in the case law. He argues that, as in Cook et al v. Citizens Research Institute, 2001 BCHRT 39 , Dr. Saewyc’s proposed evidence is unlikely to assist the Tribunal in the decisions it must make: para. 19.
[17] We agree that some of the evidence in Dr. Saewyc’s report reflects well known understandings of hate speech, stigma, and anti-gay or anti-trans discrimination: see e.g. Hansman v. Neufeld, 2023 SCC 14 at paras. 84-86; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11; Customer v. Restaurant and another, 2018 BCHRT 138 at para. 35; and Oger (No. 5). These issues are at the core of the Tribunal’s specialized knowledge and, in some cases, may be properly subject to judicial notice: see e.g. R v. Le, 2019 SCC 34 at paras. 82 – 85.
[18] At the same time, it would be an overstatement to say that the Tribunal could take notice of all of Dr. Saewyc’s proposed evidence. Some evidence about the adverse impacts of public commentary or speech on LGBTQ2S+ people is, we anticipate, disputed and must be proven. Dr. Saewyc’s reliance on research and studies goes beyond matters within the general experience and knowledge of the Tribunal and adds to it. For example, she refers to research about how certain types of speech impacts teachers in their work, and how speech by elected politicians may impact people in their workplaces and communities. This is outside the Tribunal’s specialized knowledge and experience. We are satisfied that the evidence is necessary to assist the trier of fact.
C. Absence of any exclusionary rule
[19] In his written argument, Mr. Neufeld argues that, throughout her opinion, Dr. Saewyc crosses a line to decide the “ultimate issue” before this Tribunal. He points out that, throughout her report, Dr. Saewyc equates the type of speech at issue in this complaint as “hate speech” – a legal threshold which is the issue for this Tribunal.
[20] We understand that Mr. Neufeld is not pursuing this argument after hearing Dr. Saewyc’s qualification evidence. In any event, we are satisfied that Dr. Saewyc’s evidence does not seek to decide the ultimate issue before the Tribunal. She is not commenting directly on Mr. Neufeld’s publications and, throughout her testimony, demonstrated a clear understanding of her role as an expert witness.
[21] We agree with Mr. Neufeld that it will the role of this Tribunal to make its own independent findings based on the totality of the evidence presented at the hearing.
D. Properly Qualified Expert
[22] A properly qualified expert is one who is “shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify”: Mohan at para. 27. An expert “must not only be qualified generally but must also be qualified to express the specific opinion proffered”: R. v. Orr, 2015 BCCA 88 at para. 67; Oger (No. 5) at para. 27. We have no difficulty finding that Dr. Saewyc is a properly qualified expert in the impacts of stigma on sexual and gender minority populations.
[23] Dr. Saewyc is a Professor, Distinguished University Scholar, and the Director of the School of Nursing at the University of British Columbia. She has over 25 years of experience researching the health of marginalized youth, especially 2SLGBTQ+ adolescents. Dr. Saewyc founded the Stigma and Resilience Among Vulnerable Youth Centre at UBC, funded by various public grants, to conduct research into youth health. She is the Research Director for the McCreary Centre Society, a non-government charitable health research organization best known for conducting the provincial BC Adolescent Health Survey in grades 7 through 12. She has a clinical background in public health, pediatric, and maternity nursing, working primarily with youth who have experienced homelessness or sexual exploitation, and/or identify as 2SLGBTQ+. She has published more than 200 peer-reviewed articles, book chapters, abstracts, and government-commissioned reports. She is a consulting expert for national and international government agencies, including the World Health Organization, Chief Public Health Officer of Canada, and the White House. Dr. Saewyc has been named a Fellow in the Society for Adolescent Health and Medicine, the Canadian Academy of Health Sciences (2013), the American Academy of Nursing, and an Inaugural Fellow of the Canadian Academy of Nursing. She has been inducted into the Sigma Theta Tau International Nursing Honour Society’s International Nurse Research Hall of Fame.
[24] Mr. Neufeld argues that Dr. Saewyc’s knowledge, expertise, and scholarship are largely focused on adolescents, who are not the subject of this complaint. However, during oral argument, he conceded that Dr. Saewyc had sufficient peripheral expertise to also opine about the effects of stigma on adults in gender or sexual minority populations. Accepting that much – though not all – of Dr. Saewyc’s work has focused on young people, we accept that she has acquired the requisite expertise to give the opinion tendered in this proceeding: see e.g. Cook et al v. Citizens Research Institute, 2001 BCHRT 39 at para. 10; Pinch at paras. 16-17; Lax Kw’alaams Indian Band . Canada (Attorney General), 2006 BCSC 1961 at paras. 5-6.
[25] A properly qualified expert must also understand and be capable of giving evidence that is impartial, independent, and free of bias. The Supreme Court of Canada describes these concepts as follows:
The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her…
White Burgess at para. 32
[26] This threshold is not onerous. Generally, an expert’s testimony recognizing and accepting their duty will be sufficient to establish their independence and impartiality. The burden is on the party opposing admission of the evidence – here, Mr. Neufeld – to show there is a “realistic concern” that the expert is unable or unwilling to comply with their duty: White Burgess at para. 47; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, at para. 106
[27] Mr. Neufeld argues that there are “slight indicia of bias” in some of Dr. Saewyc’s expert report, referencing Dr. Saewyc’s discussion of politicians in the US as an example. The biggest problem, he says, is that the questions posed to Dr. Saewyc are adversarial and so her responses are merely a reworking of counsel’s argument. He argues that Dr. Saewyc’s evidence “contains markers of bias or lack of impartiality”.
[28] We are not satisfied that Mr. Neufeld has identified a realistic concern about Dr. Saewyc’s independence and impartiality. During her testimony, Dr. Saewyc properly identified her role to assist the Tribunal and not opine about the ultimate issue. In her expert report, Dr. Saewyc explains that she has proceeded on an assumption that “research conducted within Canada, or countries whose contexts and cultures are similar, is more likely to be relevant to and reflect circumstances in British Columbia”. In this context, she has referred to research from the US, some of which relates to American politicians. This is not an indicia of bias. Nor do we share a concern that Dr. Saewyc’s opinion merely reworks counsel’s argument. To the extent that Mr. Neufeld objects to the use of terms like homophobia and transphobia, he can ask the witness questions about those terms in cross-examination. The presence of these terms in counsel’s questions, or Dr. Saewyc’s answers, does not indicate bias.
[29] In sum, we are satisfied that Dr. Saewyc’s proposed evidence meets the threshold criteria for admissibility. Though it is possible a court could have reached a different conclusion, we have applied these criteria with a view to fulfilling the purposes of the Code and assessing whether the evidence is necessary and appropriate. We turn now to the residual balancing to determine whether to admit the evidence.
E. Residual balancing
[30] We retain a residual discretion to exclude Dr. Saewyc’s evidence based on a cost-benefit analysis, balancing the potential risks and benefits of admitting the evidence: White Burgess at para. 19; International Air Transport Assn v. Canada (Transportation Agency), 2024 SCC 30 at para. 72. In White Burgess, the Court explained:
Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [at para. 54]
[31] Mr. Neufeld argues that any “limited helpfulness” of Dr. Saewyc’s evidence is outweighed by the “risks her testimony will serve to add confusion, to distract from the true legal issues arising from the claims and facts, and to sensationalize a hearing that is already vulnerable to being sensationalized”. He argues that there is inherent prejudice in admitting Dr. Saewyc’s evidence, because it will require significant party and Tribunal resources, including a full day of oral evidence and hundreds of pages of documentary evidence. He says this prejudice must be weighed against the marginal value of the evidence, which he characterizes as falling at the “edge” of Dr. Saewyc’s expertise, barely logically relevant, and constituting advocacy for the Complainants.
[32] We acknowledge, and agree, that Dr. Saewyc’s evidence will require a significant amount of Tribunal and party resources. However, at this preliminary stage we are not persuaded that this prejudice outweighs the potential probative value of her evidence which, as we have explained, is likely to assist the Tribunal to situate the issues properly in their social context and assess the Complainants’ claims of adverse impacts, among other things. We can and will manage the impact of admitting the evidence by holding the parties to their time estimates for direct and cross-examination.
[33] Finally, Mr. Neufeld argues that Dr. Saewyc’s evidence will not be reliable. Here, he relies on answers she gave to questions about whether she considered herself an expert in “moral panic”, which he characterises as inconsistent. We are not persuaded by this argument, which misconstrued Dr. Saewyc’s testimony.
III CONCLUSION
[34] In sum, we are satisfied that Dr. Saewyc is qualified as an expert in the impacts of stigma on sexual and gender minority populations. Her evidence is admissible in this proceeding.
Devyn Cousineau
Vice Chair
Human Rights Tribunal
I AGREE: Robin Dean, Tribunal Member
I AGREE: Laila Said Alam, Tribunal Member