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

AuthorDavid A. Potts; Erin Stoik
  
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
The decisions may be divided into three categories for the purpose of
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.
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,

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