This article originally appeared in The Hub.
By David Thomas, March 6, 2026
This is the way free speech in Canada ends. Not with a bang but a whimper—and a never-ending series of human rights cases that are determined to scare everyone from ever uttering anything but the sanctioned narrative.
The latest scare comes from the recent British Columbia Human Rights Tribunal decision in B.C. Teachers Federation v. Neufeld. Barry Neufeld was an elected school trustee and a vocal online critic of the sexual orientation and gender identity curriculum—known as SOGI 123—being provided to B.C.’s K–12 students since 2017. Neufeld’s online criticism resulted in the tribunal finding him guilty of hate speech and being ordered to pay $750,000 in damages for “injury to dignity, feelings and self-respect” to an entire class of people he doesn’t directly work with or even know.
Despite my long association with the federal and provincial human rights tribunals, I have made the case that these bodies should not be in the speech police business. There could be legitimate cases of hate speech in Canada, which are addressed in the Criminal Code, and which ought to be prosecuted. However, the proper venue is in a court of law with its higher standard of proof, not in an administrative tribunal which finds guilt based on a balance of probabilities on vague definitions of hate speech.
The tribunals are made up of non-judge appointees, many with varied backgrounds that may not lay the best foundation for the critical work they are doing. Human rights decisions have far-reaching influence on society, setting boundaries on acceptable discourse and social interaction. The federal and B.C. legislation doesn’t even require tribunal members to have legal training.
The whole point about creating human rights tribunals was to keep discrimination outside of the criminal justice system. Cases were expected to be decided expeditiously, and awards for damages were supposed to be very limited. Since those early days, tribunals have evolved considerably.
Complaints that used to take weeks to process now take years. Most tribunals had limits to the amount of damages that could be awarded for pain and suffering (or injury to dignity). Over time, a number of provinces, including B.C., lifted the statutory limit and in this way, the B.C. tribunal was able to make a $750,000 damages award against Mr. Neufeld—a penalty of a magnitude that defeats the original intention of keeping these types of cases out of the courts.
Although not a true class-action case, Neufeld’s case was treated as if it was, and his award is to be split amongst LGBTQ teachers of the Chilliwack Teacher’s Association who were not required to show any nexus between Neufeld’s comments and any adverse treatment they may have endured.
The trend of using human rights tribunals as vehicles for class-action-type complaints has evolved under the pursuit of substantive equality. However, human rights tribunals lack the capacity, expertise, and procedures that exist in the courts that deal with true class actions. Tribunals have no certification process to provide adequate checks and balances.
An extreme example of using a tribunal for a class action was First Nations Child & Family Caring Society Ltd. v. Canada, which led to an award to approximately 165,000 members of a class for an amount in the billions, and a settlement negotiated by the government for a total sum of $23.3 billion.
This is a long way from where discrimination tribunal adjudication began.
The BCHRT also went through some legal gymnastics to find Neufeld guilty. In a controversial preliminary ruling in his case, the provincial tribunal asserted it has the authority to hear allegations of hate speech published online, notwithstanding that telecommunication was previously considered the exclusive domain of the federal tribunal.
Reasonable people can and do disagree about when speech crosses the threshold into extreme vilification or detestation—the high threshold of hate speech as defined in the Supreme Court of Canada’s landmark 2013 Whatcott ruling. The problem with the Neufeld decision is that different adjudicators may have reached a different conclusion, which attests to the very subjective nature of this exercise.
The issue at stake in the Neufeld decision is the effect on free speech in Canada. There is no perfect solution, but it is better to risk hurt feelings than to spiral down into a collective state of paranoia where people are afraid to voice any views on controversial subjects. We have quickly forgotten examples like the Stasi prosecuting wrong-speech in communist East Germany, where contravening any of their vague wrong-speech laws could lead to a prison sentence.
What bothers many of us about the Neufeld decision is that it feels less like the protection of vulnerable persons and more like the enforcement of ideology.
There are fair questions about youth transgenderism that hate speech laws will suppress. For example, why has the recorded incidence of transgender youth exploded since 2011? Why is there a noticeable correlation between youth identifying as transgender and being diagnosed with autism? People should be free to ask questions and explore for answers without fear of financial ruin for crossing a vague line.
Free speech is an essential element for any free and democratic society. It acts as a pressure valve, allowing the debate of difficult questions, challenging accepted narratives, and arriving at new ideas and consensus. Stifling free speech only builds up pressure, and when people believe they are no longer at liberty to engage in free debate, society will become more and more divided, and this is when things could get explosive.
The courts exist to deal with hate speech under the Criminal Code. Human rights tribunals are not properly set up to deal with hate speech. They should let the courts do their work and stay out of the business of policing free speech.
David Thomas is a lawyer and mediator in British Columbia and a senior fellow at the Macdonald-Laurier Institute. He was an adjudicator for the Canadian Human Rights Tribunal for 10 years, serving as its chairperson in Ottawa from 2014 to 2021. He was also a mediator for the B.C. Human Rights Tribunal for three years.
