List of Cases: The Merits Hurdle and the Public Interest Hurdle

• Author: David A. Potts; Erin Stoik
• Pages: 478-480

478

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The Merits Hurdle and the Public Interest Hurdle

What follows is a sample of decisions made pursuant to sections 137.1(4)(a)

and (b) of the Ontario Courts of Justice Act, RSO 1990, c C.43 [CJA] and sec-

tions 4(2)(a) and (b) of the British Columbia Protection of Public Participation

Act, SBC 2019, c 3 [PPPA]. Please note that this is not an exhaustive list.

CJA section 137.1(4)(a) and PPPA section 4(2)(a) refer to the merits hurdle.

CJA section 137.1(4)(b) and PPPA section 4(2)(b) refer to the public interest

hurdle.

The decisions may be divided into three categories for the purpose of

examination:

1. Cases that were dismissed on both the merits hurdle and the public inter-

est hurdle.

2. Cases that were dismissed on the merits hurdle alone.

3. Cases that were dismissed on the public interest hurdle alone.

BOTH THE MERITS HURDLE AND THE PUBLIC INTEREST HURDLE

DEI Films Ltd v Tiwari, 2018 ONSC 4423 per Perell J at paras 50–51:

[50] In my opinion, DEI Films fails on all accounts; namely: (1) DEI Films’

action does not have substantial merit; (2) Mr. Tiwari and CMR 101.3 have the

defences that there was no defamatory statement, justif‌ication, and fair com-

ment; and (3) the harm suf‌fered by DEI Films that can be connected to even

assuming a defamatory statement is not suciently serious that the public

interest weighs in favour of allowing the action to proceed.

[51] This is not a close call. There was nothing said expressly or said by

innuendo that was defamatory, and there is no evidence that a broadcast less

than three days had any ef‌fect on DEI Film’s ticket sales. Any suggestion that

CMR 101.3, whose principal was unaware of the concert until after the event,