No Valid Defence - Section 137.1(4)(a)(ii)

• Author: David A. Potts; Erin Stoik
• Pages: 157-164

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No Valid Defence—Section 137.1(4)(a)(ii)

LEGISLATION

The second requirement that must be overcome by the plaintif‌f is assessing

the potential defences to the proceeding. The statute states as follows:

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

No dismissal

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

ing party satisf‌ies the judge that,

(a) there are grounds to believe that, . . .

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

GENERAL PRINCIPLES

1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 at paras 55–60:

(b) Section 137.1(4)(a)(ii)—No Valid Defence

[55] Section 137.1(4)(a)(ii) requires the responding party (i.e. plainti) to satisfy

the motion judge that there are “grounds to believe” that the moving party (i.e.

defendant) has “no valid defence” in the underlying proceeding.

[56] While the burden has admittedly shifted to the plaintif‌f under s.137.1(4),

it would be unreasonable to encumber the plaintif‌f at the s. 137.1(4)(a)(ii) stage

with the task of anticipating every defence the defendant might raise and

then rebutting those defences. Instead, s. 137.1(4)(a)(ii) operates as a de facto

burden-shifting provision in itself, under which the moving party (i.e. defend-

ant) must f‌irst put in play the defences it intends to present and the respond-

ing party (i.e. plainti) must then show that there are grounds to believe that

those defences are not valid.