Boissoin et al. v. Lund et al., (2012) 536 A.R. 272

• Judge: Conrad, O'Brien and O'Ferrall, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 07, 2011
• Citations: (2012), 536 A.R. 272;2012 ABCA 300

Boissoin v. Lund (2012), 536 A.R. 272; 559 W.A.C. 272 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. OC.068

Stephen Boissoin and the Concerned Christian Coalition Inc. (respondents) v. Darren Lund (appellant) and The Attorney General of Alberta and Canadian Civil Liberties Association (intervenors)

(1001-0078-AC; 2012 ABCA 300)

Indexed As: Boissoin et al. v. Lund et al.

Alberta Court of Appeal

Conrad, O'Brien and O'Ferrall, JJ.A.

October 17, 2012.

Summary:

An Alberta Human Rights Panel found that Boissoin and the Concerned Christian Coalition Inc. had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act. Boissoin and the Coalition appealed.

The Alberta Court of Queen's Bench, in a decision reported at 488 A.R. 41, allowed the appeal. The Panel erred in concluding that the impugned letter violated s. 3(1)(b). The court declined to award Boissoin solicitor and client costs. The court found that he enjoyed only mixed success on many matters arising in the appeal. The court directed that each party bear their own costs. Lund, who made the complaint under the Act, appealed.

The Alberta Court of Appeal dismissed the appeal. Boissoin was awarded his costs of the appeal.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - General - Section 3(1) of the Alberta Human Rights, Citizenship and Multiculturalism Act provided that no person was to, inter alia, publish or cause to be published before the public any, inter alia, statement that indicated discrimination or was likely to expose a person or a class of persons to hatred or contempt because of, inter alia, race, religious beliefs, colour, gender, sexual orientation, etc. - Section 3(2) provided that "Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject." - The Alberta Court of Appeal examined the purpose and effect of the exemption provided by s. 3(2) -The words "nothing in this section" could not be interpreted reasonably as sometimes permitting interference with the free expression of opinion - Section 3(2) was directed solely at the free expression of opinion, not all speech - Whether a message was a "political, religious or personal opinion" was a question of fact to be determined by the trier of fact - The simple device of labelling a message as "opinion" did not make it so - If the public statement properly qualified as an expression of opinion, and was not something more than that, or something of a different character, then pursuant to s. 3(2) the statement of opinion was exempt from the prohibition in s. 3(1) - See paragraphs 78 to 93.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - Section 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act directly prohibited the publication before the public of any statement that was likely to expose a person or a class of persons to hatred or contempt on the basis of the listed grounds - A reviewing judge interpreted s. 3(1)(b) as requiring a "causal link between publication of the message and the infringement of rights contained in the Act", and further requiring some "concrete evidence" linking the message to the prohibited practices listed in s. 3 - The Alberta Court of Appeal stated that s. 3(1)(b) required only a demonstration that the publication was likely to expose a person or a class of persons to hatred or contempt - The trigger was exposure - No evidence of a subsequent discriminatory activity caused by such exposure was required to make the prohibition effective - To that extent, the prohibition against hateful and contemptuous speech was "freestanding" - There was no need to prove a connection or linkage between the impugned message and a subsequent discriminatory practice in order to restrain the message - See paragraphs 43 to 57.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - An Alberta Human Rights Panel found that Boissoin had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - A reviewing judge allowed an appeal, concluding that the Panel erred in finding that the impugned letter was hateful and contemptuous of homosexuals and erred by failing to properly conduct the required s. 3(2) balancing act - The words used were not of the extreme nature that the applicable definitions required - The language might have been jarring, offensive, and insulting but it did not go so far as to fall within the prohibited status of "hate" or "contempt" - The Alberta Court of Appeal dismissed the complainant's appeal - The letter was offensive - It was coarse, crude and insensitive - However, the letter constituted an expression of opinion that did not infringe the Act - The letter was essentially an expression of Boissoin's opinion that teaching children at school that homosexuality was normal, and that same sex families were equivalent to heterosexual families, was morally wrong and should not be tolerated - The letter's broad subjects were sexual behaviour and morality, and education about these subjects in public schools funded by taxpayers - The letter attempted to engage in public debate respecting these matters, as the newspaper editor perceived when he deemed it worthy of publication - The letter also constituted an expression of opinion on a subject of public debate (teaching in schools concerning homosexuality) within the meaning of s. 3(2), which exempted it from the application of s. 3(1)(b) - See paragraphs 58 to 93.

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs (incl. on appeal) - An Alberta Human Rights Panel found that Boissoin and the Concerned Christian Coalition Inc. had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The finding was set aside on appeal - Boissoin sought costs - He argued, inter alia, that the complaint by Lund, a university professor, was ill conceived and that Lund had no personal interest the case - Boissoin also complained, inter alia, that he had to endure the costs associated with defending himself before the Panel - The reviewing judge ordered each party to bear their own costs as this case was one of public interest - Alternatively, Boissoin only achieved mixed success on various of the "public interest" issues - Lund's appeal was unsuccessful - Boissoin sought costs respecting the appeal, in the court below, and before the Panel - The Alberta Court of Appeal stated that the reviewing judge denied costs, up to this stage of the proceeding, on a public interest basis, and the court saw no good reason to reverse his direction - However, Lund had chose to appeal hoping to recover the damages awarded by the Panel - Therefore, the general rule that costs followed the result was applicable - Boissoin was entitled to his costs of the appeal, taxable on Column 2 of Schedule C - See paragraph 101.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Public interest or test case - [See Civil Rights - Topic 7107 ].

Cases Noticed:

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237; 156 D.L.R.(4th) 385, refd to. [para. 8].

Kane et al. v. Alberta Report et al. (2001), 291 A.R. 71; 2001 ABQB 570, refd to. [para. 17].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191; 75 D.L.R.(4th) 577, refd to. [para. 25].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 35].

Lockerbie & Hole Industrial Inc. et al. v. Human Rights and Citizenship Commission (Alta.) et al. (2011), 493 A.R. 295; 502 W.A.C. 295; 329 D.L.R.(4th) 76; 2011 ABCA 3, refd to. [para. 36].

Human Rights and Citizenship Commission (Alta.) et al. v. Kellogg Brown & Root (Canada) Co. (2007), 425 A.R. 35; 418 W.A.C. 35; 84 Alta. L.R.(4th) 205; 2007 ABCA 426, refd to. [para. 36].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al. (2012), 432 N.R. 1; 2012 SCC 35, refd to. [para. 37].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 38].

Human Rights Commission (Sask.) v. Engineering Students' Society, University of Saskatchewan (1989), 72 Sask.R. 161; 56 D.L.R.(4th) 604 (C.A.), refd to. [para. 47].

McKay v. The Queen, [1965] S.C.R. 798; 53 D.L.R.(2d) 532, refd to. [para. 48].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 49].

Reference Re Assisted Human Reproduction Act, [2010] 3 S.C.R. 457; 410 N.R. 199; 2010 SCC 61, refd to. [para. 49].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 50].

Scowby et al. v. Glendinning et al., [1986] 2 S.C.R. 226; 70 N.R. 241; 51 Sask.R. 208; 32 D.L.R.(4th) 161, refd to. [para. 52].

Reference Re Alberta Statutes, [1938] S.C.R. 100; [1938] 2 D.L.R. 81, refd to. [para. 53].

Saumur v. Quebec (City), [1953] 2 S.C.R. 299; [1953] 4 D.L.R. 641, refd to. [para. 53].

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 56].

R. v. Rodgers - see R. v. Jackpine.

Owens v. Human Rights Commission (Sask.) et al. (2006), 279 Sask.R. 161; 372 W.A.C. 161; 267 D.L.R.(4th) 733; 2006 SKCA 41, refd to. [para. 61].

Whatcott v. Human Rights Tribunal (Sask.) et al. (2010), 346 Sask.R. 210; 477 W.A.C. 210; 317 D.L.R.(4th) 69; 2010 SKCA 26, refd to. [para. 62].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 D.L.R.(4th) 321, refd to. [para. 64].

Cherneskey v. Armdale Publishers Ltd. and King, [1979] 1 S.C.R. 1067; 24 N.R. 271; 90 D.L.R.(3d) 321, refd to. [para. 67].

Simpson v. Mair et al., [2008] 2 S.C.R. 420; 376 N.R. 80; 256 B.C.A.C. 1; 431 W.A.C. 1; 2008 SCC 40, refd to. [para. 68].

WIC Radio Ltd. v. Simpson - see Simpson v. Mair et al.

Trinity Western University et al. v. College of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161; 2001 SCC 31, refd to. [para. 74].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 88].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 92].

Statutes Noticed:

Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, sect. 3(1)(b), sect. 3(2) [para. 7].

Authors and Works Noticed:

Hogg, Peter, Constitutional Law of Canada (2007) (Looseleaf), p. 34-10 [para. 52].

Counsel:

G. Chipeur, Q.C., and J.W. Wilkie, for the respondents;

C. Bataluk, for the appellant;

D. Kamal, for the Attorney General of Alberta;

J. McCready, for the Canadian Civil Liberties Association.

This appeal was heard on December 7, 2011, before Conrad, O'Brien and O'Ferrall, JJ.A., of the Alberta Court of Appeal. The decision of the court was delivered by O'Brien, J.A., on October 17, 2012.