Legislation and Caselaw

• Author: David A. Potts; Erin Stoik
• Pages: 141-146

141

 15

Legislation and Caselaw

LEGISLATION

Courts of Justice Act, RSO 1990, c C.43, s 137.1(4):

No dismissal

137.1 (4) A judge shall not dismiss a proceeding under subsection (3) if the

responding party satisf‌ies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suf‌fered by the responding party as

a result of the moving party’s expression is suciently serious that the

public interest in permitting the proceeding to continue outweighs the

public interest in protecting that expression.

1704604 ONTARIO LTD V POINTES PROTECTION ASSOCIATION

The Supreme Court of Canada discussed this section at length in 1704604

Ontario Ltd v Pointes Protection Association, 2020 SCC 22 at paras 33–42 and 54.

Shifting of the Burden to the Plaintif‌f

1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 at paras 33:

[33] As the text of this provision makes explicit, the burden is on the respond-

ing party (i.e. the plaintif‌f in the underlying proceeding) to satisfy the

motion judge of both (a) and (b). Therefore, if either (a) or (b) is not met, then

this will be fatal to the plaintif‌f discharging its burden and, as a consequence,

the underlying proceeding will be dismissed. However, if the plaintif‌f can show