[56]
Absent reviewable error, an application judge’s determination on a s. 4
SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 36).
B.
[57]
Issue 1: Public Interest Weighing
The key issue in the appeal before us is whether the chambers judge erred
in the public interest weighing exercise under s. 4(2)(b). This issue was the most
contentious in this Court, and invited considerable attention from parties and
interveners, alike. Accordingly, although the chambers judge addressed the issues in a
different order, I evaluate his findings as to the public interest weighing exercise before
turning to his conclusion that Mr. Hansman had a valid defence in the proceeding.
[58]
Even when a plaintiff shows the proceeding has substantial merit and the
defendant has no valid defence, “it remains vulnerable to summary dismissal as a result
of the public interest weighing exercise . . ., which provides courts with a robust
backstop to protect freedom of expression” (Pointes, at para. 53). Pointes described
this weighing exercise as the core of the analysis, as it allows the court to strike an
appropriate balance between the protection of individual reputation and freedom of
expression, the competing values at the heart of anti-SLAPP legislation.
[59]
Section 4(2)(b) requires the plaintiff to prove on a balance of probabilities
that — due to “the harm likely to have been or to be suffered” by the plaintiff as a result
of the defendant’s expression — the public interest in allowing the proceeding to
2023 SCC 14 (CanLII)
motion is entitled to deference (Bent, at para. 77, citing Housen v. Nikolaisen, 2002
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