Legislation and Caselaw

AuthorDavid A. Potts; Erin Stoik
 15
Legislation and Caselaw
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.
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

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