Chilliwack Teachers’ Association v. Neufeld (No. 7), 2025 BCHRT 34
Date Issued: February 18, 2025
File: CS-001372
Indexed as: Chilliwack Teachers’ Association v. Neufeld (No. 7), 2025 BCHRT 34
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 Human Rights Commissioner
INTERVENOR
REASONS FOR DECISION
ADMISSIBILITY OF EVIDENCE
Section 27.2
Tribunal Members: Devyn Cousineau, Robin Dean, Laila Said Alam
Counsel for the Complainant: Lindsay Waddell, Alanna Tom, Stefanie Quelch
Counsel for the Respondent: James SM Kitchen
Counsel for BC’s Human Rights Commissioner: Sarah Khan, KC, and Maria Sokolova
I INTRODUCTION
[1] This decision is about whether the Human Rights Tribunal can take notice of the social facts contained in 20 peer reviewed academic articles submitted by the Intervenor, BC’s Human Rights Commissioner [the Articles ]. The Commissioner seeks to rely on the Articles in her final written submissions about the interpretation and application of s. 7 of the Human Rights Code. We also consider the Commissioner’s alternative argument that we should admit the Articles as evidence.
[2] 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 provincial resource materials addressing sexual orientation and gender identity. The British Columbia Teachers’ Federation [ BCTF ] and the Chilliwack Teachers’ Association [ CTA ] bring the 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 Code .
[3] The Commissioner has intervened in the complaint, as of right: Code, ss. 22.1 and 47.12(1)(i). Under the terms of its intervention, the Commissioner is permitted to make arguments about the following issues, so long as they do not duplicate the Complainants’ submissions: (1) the interpretation of s. 7(1)(a) of the Code ; and (2) whether statements which characterize gender-affirming support for trans children and youth as child abuse are discriminatory and/or hate speech prohibited by s. 7 of the Code. The Commissioner was also permitted, and intended, to call an expert witness, but withdrew the expert due to a serious medical issue.
[4] The Commissioner argues that the Articles will “assist the Tribunal to understand the underlying logic, context, and impact of statements that liken support for gender affirming care for transgender children and youth with child abuse, and the underlying moral panic related to such statements”. The Complainants support admitting the Articles. Mr. Neufeld opposes admitting the Articles, on the basis that their contents are not properly the subject of judicial notice and should have been tendered through an expert witness. We agree with Mr. Neufeld.
[5] For the reasons that follow, we decline to take notice of or admit the Articles in this proceeding.
II DECISION
[6] The Commissioner seeks to rely on the Articles as social context evidence “to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case”: R. v. Spence , 2005 SCC 71 at para. 57; R. v. Le , 2019 SCC 34 at para. 83. First, we consider whether we can take notice of the social facts contained in the Articles. Second, we consider whether we should exercise our discretion to admit the Articles as evidence.
A. Should the Articles be admitted as the subject of judicial notice?
[7] Like a court, the Tribunal may take notice of facts that are either: “(1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”: R v. Find, 2001 SCC 32 at para. 48. These two criteria are often called the “Morgan criteria”. Where a fact is dispositive of an issue in dispute, the Morgan criteria are applied rigorously. Where a fact is simply background to an issue, the threshold is lower. Where the significance of a fact falls somewhere in between, the decision maker should ask themselves “whether such ‘fact’ would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute”: Spence at para. 65. It is not enough to simply characterize a fact as “social fact” and, on that basis, “put aside the need to examine the trustworthiness of the facts’”: Spence at para. 58. Secondary sources should not be used to “bootleg evidence”: Spence at para. 58.
[8] Social facts may be particularly important in human rights cases: e.g. Nixon v Rape Relief, 2002 BCHRT 1 at para. 138. The Tribunal recognizes that it can be onerous for a party to introduce expert evidence and that it is expected to have some expertise in forces underlying social inequality: Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 38. At the same time, the Tribunal must remain cognizant of the dangers of accepting facts that do not meet the courts’ standards for judicial notice, including the primary concern that doing so may be unfair to a party who cannot test the evidence through cross-examination.
[9] The issues that the Commissioner will address in her intervention are focused on s. 7 of the Code, which prohibits discriminatory publications. The publications at issue were posted on social media, reported in local media, or communicated during public speaking events. They include the following statements, which suggest that supporting gender-affirming care for youth is child abuse:
– … At the risk of being labelled a bigoted homophobe, I have to say that I support traditional family values and I agree with the College of paediatricians that allowing little children choose to change gender is nothing short of child abuse. … [October 23, 2017, Facebook]
– A meme depicting a cow and a child with the text “When you think injecting cattle with hormones is evil but injecting kids with hormones to change their gender is just fine.” [July 2018, Facebook]
– The elites will destroy all gay kids. They are culling them from the gene pool. Make no mistake about it. The trans agenda is eugenics. They are not on the side of LGBTQ+. Don’t ever think they are. Snakes are everywhere. More division and the destruction of humanity. [December 9, 2018, Facebook, as written]
– This is gaslighting: They attack the foundation of a child’s being which is child abuse. This will have the effect of confusing children, disturbing their personal security and mental health. Furthermore, I consider rushing into the use of puberty blockers, hormone therapy and gender reassignment as child abuse. [November 21, 2017, Culture Guard speech]
[10] For these and the other publications at issue, the Tribunal must decide:
a. Section 7(1)(a): Did Mr. Neufeld’s publications have a discriminatory effect, or were they intended to have a discriminatory effect, on the Class? This analysis must balance Mr. Neufeld’s right to freedom of expression under the Charter .
b. Section 7(1)(b): In the view of a reasonable person, aware of the context and circumstances, did Mr. Neufeld’s publications expose or tend to expose the Class to detestation and vilification on the basis of their gender identity or expression, and/or sexual orientation?
[11] The Commissioner argues that the Articles will situate Mr. Neufeld’s publications in the broader social context of discrimination against transgender and non-binary people, specifically through rhetorical devices intended to incite a moral panic. She says that the Articles “outline the formation, effect and rhetorical work of moral panics” and “provide contextual background for the claim that gender affirming care or support for transgender and non-binary people, including children and youth, is child abuse”. She argues that a reasonable person, having informed themselves of the evidence, could not dispute the central points of the Articles that:
a. language associating gender-affirming care with child abuse could lead to moral panics; and
b. moral panics increase the risk of discrimination faced by transgender people.
[12] We agree with Mr. Neufeld that the social facts which the Commissioner seeks to introduce through the Articles fall near the “dispositive” end of the spectrum discussed in Spence. The question of whether language associating gender-affirming care with child abuse has, or is intended to have, a discriminatory effect on the Class is the issue the Tribunal must decide under s. 7(1)(a). It is highly disputed between the parties. In our view, this is a circumstance where the Tribunal should exercise caution in admitting social fact evidence through judicial notice.
[13] Applying the Morgan criteria, we are not persuaded that the social facts which the Commissioner urges us to take notice of through the Articles are either “so notorious or generally accepted as not to be the subject of debate among reasonable persons” or “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”. By the Commissioner’s own description, many of the Articles set out the author’s argument about the intent and effect of public rhetoric concerning transgender people. An argument is not a fact that is so notorious as to properly be the subject of judicial notice. The authors analyse the intent and effects of speech from various groups of people, including activist and religious groups, the media, and politicians. In today’s social and political climate, their conclusions are very much the subject of vigorous public debate.
[14] Of course, just because a topic is the subject of public debate does not mean that the Tribunal could never take notice of a social context of discrimination. This is especially true and important in the context of transgender people, who “often find their very existence the subject of public debate and condemnation”: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 61; Hansman v. Neufeld, 2023 SCC 14 at para. 85. However, in our view, the Articles go beyond establishing the indisputable context of discrimination against transgender and non-binary people, to present arguments and theories about how rhetoric like Mr. Neufeld’s creates real-life harm and discrimination against transgender and non-binary people. We agree with the Commissioner that the Articles contain the kind of social science evidence that can be relevant and helpful to the human rights analysis. However, such evidence should generally be “presented through an expert witness who could be cross-examined as to the value and weight” to be given to their conclusions: Spence at para. 68. Given that the arguments in the Articles are disputed and come close to the dispositive end of the spectrum, they are not the type of facts that this Tribunal can fairly take notice of.
B. Should the Tribunal admit the Articles into evidence?
[15] The Commissioner argues that, even if the Tribunal does not take notice of the facts in the Articles, it should exercise its discretion to admit them as evidence on the basis that they are likely relevant and do not unduly prejudice any party: citing Dhanjal v. Air Canada, 1996 CanLII 2385 at pp. 4-5; Nixon at para. 138. She argues that the Tribunal can address any concerns about the reliability of the evidence as a matter of weight. The Complainants agree with this submission. Mr. Neufeld opposes it.
[16] The Tribunal has discretion to accept any 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(1). However, it should not exercise this discretion in a manner that undermines the fairness of the proceeding, or its just and timely resolution: see e.g. Oger v. Whatcott (No. 5), 2018 BCHRT 229 at para. 22. We are not persuaded that it is either necessary or appropriate to admit the Articles.
[17] First, the Articles are not necessary. The complaint can be fully and fairly assessed by applying well-established legal principles to the impugned publications. The parties and Commissioner can rely on case law and the evidence of the Complainants’ expert witness to situate the allegations in their relevant social context.
[18] Second, the Articles are not appropriate. This is not an instance, for example, where a vulnerable party is unable to elicit expert evidence about important social facts to contextualize their complaint: see e.g. Campbell at para. 38. The Commissioner is a sophisticated party and an expert in human rights. The Tribunal granted permission to call an expert witness, and she took steps to do so. She gave notice of an expert witness, whose evidence was intended to “contextualise the allegation that gender-affirming support for trans children and youth is child abuse by discussing the broader use of this allegation in anti-trans movements and why this allegation may be perceived as an effective way to resist trans inclusion”. This is the same evidence that she now seeks to admit through the Articles. Unfortunately, before the hearing began, the Commissioner advised that the expert was experiencing a serious medical issue and could not testify on the dates scheduled. As a result, the Commissioner advised she would be “unable” to call the expert as a witness. The Commissioner did not ask for an adjournment to seek another expert, to have the expert testify on other dates, or to submit the direct evidence through a report and have the expert attend later for cross-examination. All these options were available to her and, in a medical emergency, would have been reasonable requests. In this context, we agree with Mr. Neufeld that admitting the Articles would be “bootlegging evidence in the guise of authorities”: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [1999] 3 SCR 845, at para. 3. This is not generally appropriate: Spence at para. 58.
[19] Further, we do not agree there is no prejudice to Mr. Neufeld. We acknowledge that Mr. Neufeld has had notice of the Articles for a long time and so, in that sense, their contents should not surprise him. However, Mr. Neufeld strongly disputes the substance of the Articles. We have already explained our view that the evidence approaches the dispositive end of the spectrum and is not properly the subject of judicial notice. We agree with Mr. Neufeld that he faces prejudice because he has no ability to test the evidence in the Articles through cross-examination. This raises concerns about procedural fairness, and in our view means it is not appropriate to admit the Articles in this case.
[20] Finally, admitting the Articles would not further the just or timely resolution of the complaint. Rather, they open the spectre of Mr. Neufeld seeking to admit “an equal volume of scholarship and/or [seeking] to introduce expert evidence defeating the Commission’s propositions”. This would distract the parties and the Tribunal from the issues at hand, which concern the application of well-known legal standards to Mr. Neufeld’s specific publications.
[21] In sum, we are not persuaded to exercise our discretion to admit the Articles as evidence in this proceeding.
III CONCLUSION
[22] We acknowledge the relevance of the Articles and the possibility that they could assist the Tribunal in its analysis of the issues under s. 7 of the Code. However, in our view, we cannot take judicial notice of their contents, and it would be neither necessary nor appropriate to admit them without an expert witness. The Articles are not admissible in this proceeding.
Devyn Cousineau
Vice Chair
I AGREE: Robin Dean, Tribunal Member
I AGREE: Laila Said Alam, Tribunal Member