Court Victory for Teacher Accused of Transphobia Could Help Similar Cases, Lawyers Say

Carolyn Burjoski, a former Waterloo Region District School Board teacher, was ejected from a school board meeting in January 2022 after raising questions about the age-appropriateness of some books in elementary school libraries that deal with gender transition. (Screenshot via The Epoch Times)

An Ontario Superior Court judge recently ruled in favour of retired teacher Carolyn Burjoski, who sued a Waterloo school board for defamation after its chair called her “transphobic.” The victory could influence other cases, lawyers say, as similar experiences proliferate at school board and city council meetings across the country.

At a Waterloo Region District School Board (WRDSB) meeting last year, then-chair Scott Piatkowski cut off Ms. Burjoski’s delegation, saying it violated the Human Rights Code. Ms. Burjoski was discussing books available to schoolchildren that she felt made gender change seem “cool” and easier than it is in reality.

Justice James Ramsay said in a Nov. 23 decision that Ms. Burjoski can go ahead with her defamation suit, which the board had tried to block. Justice Ramsay made strong comments in favour of Ms. Burjoski’s case. He said the Human Rights Code “does not prohibit public discussion of anything” and that Mr. Piatkowski’s characterization of her comments as transphobic and hateful was, in his opinion, defamatory.

“I do think that it’s a really important decision for protecting free speech in spaces like school boards and city councils where we increasingly see freedom of expression is under attack,” Josh Dehaas, counsel with the Canadian Constitution Foundation, told The Epoch Times. “It makes it easier for people to sue in defamation if they’re falsely accused of things like transphobia.”

Justice Ramsay’s decision has limited legal weight; an Ontario Superior Court decision has less legal weight than an Appeals Court decision or Supreme Court decision, for example. But it is likely to make people think twice before labelling someone “transphobic” or accusing them of violating the Human Rights Code, Mr. Dehaas said.

“We see this over and over again, where school boards or city councils claim that merely discussing issues or presenting opinions on topics like gender identity somehow violates human rights codes, and that’s really not true,” he said.

Similar Cases

Mr. Dehaas gave the example of a parent whose delegation was cut short during an Ottawa Carleton District School Board (OCDSB) meeting on March 7.

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Parent Nick Morabito was expressing his concerns about transgender students using girls’ washrooms at his daughter’s middle school when trustee Nili Kaplan-Myrth cut him off.

“On the grounds that this creates an unsafe environment for people who identify as gender diverse, I’m going to have to ask you to end your delegation,” Ms. Kaplan-Myrth said.

OCDSB later told The Epoch Times that “due to concerns that the presentation was transphobic and could be used to promote hate or discrimination against trans youth, the chair ruled the delegation out of order.”

Ms. Kaplan-Myrth’s argument that such discussions make others “unsafe” is common. Mr. Dehaas said it’s often called “harassment” but notes that word should only legally apply in more extreme circumstances, such as when someone is targeting the same person over and over again.

“It’s not just saying something that someone finds offensive,” he said.

Another similar case is that of Linda Stone, a trustee in the Durham District School Board whose attempts to discuss board policies on race and gender have been shut down. She was accused of being “transphobic” and “racist,” and in February the board decided to ban her on the grounds that she contravened its code of conduct.

Ms. Stone told The Epoch Times via email that she felt encouraged by Justice Ramsay’s decision.

“I can only say that I am absolutely thrilled with the ruling and thankful to Carolyn for showing such courage and strength,” she said.

In Pickering, Ontario, city councillor Lisa Robinson had her pay suspended for 60 days for motions she planned to introduce. The city’s integrity commissioner said the motions were “homophobic” and “transphobic.”

The motions included banning public drag events where children could be present, restricting pride flags in public spaces, and modifying the universal change room policy at a local facility.

In Chilliwack, British Columbia, grandmother Lynda di Armani is suing her grandchild’s school board for shutting off her microphone multiple times during her delegation against pride flags.

Many other similar events have transpired in school boards and council chambers across the country.

“Each case is very fact-specific, and the judges deciding the cases below will each arrive at her/his specific findings of fact about what happened,” John Carpay, president of the Justice Centre for Constitutional Freedoms (JCCF), said in an interview.

But, he said, Justice Ramsay’s decision “will likely be considered by other judges hearing similar cases, and might prove influential.”

Legal Weight of the Decision

JCCF is representing Ms. Burjoski in her lawsuit against the WRDSB for halting her delegation, saying it violated her freedom of expression. The case recently decided by Justice Ramsay is separate from this; it is related to her defamation lawsuit against the board.

When Ms. Burjoski filed a defamation lawsuit against the WRDSB, the board responded with an anti-SLAPP motion. SLAPP stands for Strategic Lawsuits Against Public Participation. Anti-SLAPP legislation is essentially meant to protect the little guy from the big guy.

For example, a big corporation sues an individual who publicly criticizes it. The individual doesn’t have the money to fight a defamation suit, and so gives up and is effectively silenced. But the little guy can now file an anti-SLAPP motion and a judge will take a preliminary look to see if the big guy’s suit has merit. If it doesn’t, the lawsuit stops there and the big guy has to pay all the legal bills.

In this case, the WRDSB claimed Ms. Burjoski was bringing a suit without merit. The judge said in strong terms, however, that Ms. Burjoski’s case does have merit. “The comments of the board’s agents were defamatory,” Justice Ramsay said point-blank.

However, his decision isn’t the final word. It just means the defamation suit can go forward, not that the WRDSB has been found guilty of defamation.

This also limits the legal weight the decision carries for other cases.

“These comments are not binding on a similar court action, but can become persuasive,” Mr. Carpay said. He notes in particular Justice Ramsay’s comment that “regard for the historical and present plight of the transgendered ... does not negate section 2(b) of the Charter [related to freedom of expression]. What happened here should not happen in a democratic society.”

In many cases similar to Ms. Burjoski’s, a board or other entity may accuse an individual of violating its code of conduct, rather than violating the Human Rights Code. Mr. Dehaas said codes of conduct must also respect freedom of expression, and Justice Ramsay’s comments should be considered in those cases as well.

“The lawyers for the school boards and the municipalities will read this, and they'll take it into account when they give advice,” he said. “They won’t be legally bound by it, but they will take notice of it.”