[140]
I have searched in vain for an explanation in my colleague’s reasons as to
Court to do so. Not only did neither the appellant nor the respondent ask our Court to
adopt a framework different from the one applied in Pointes, but they both presented
their arguments by addressing the merits-based hurdle first and then the public interest
hurdle, as they should. The chambers judge and the Court of Appeal also proceeded in
this order, as Pointes instructed them to do. The fact that the parties and interveners
dedicated most of their submissions to the public interest hurdle is hardly a principled
or good reason to change the framework adopted in Pointes.
[141]
While I recognize that the public interest weighing exercise mandated by
s. 4(2)(b) of the PPPA is the “crux” or “core” of the analysis, it must first be established
that the underlying claim arises from an expression made by the applicant on a matter
of public interest and that it clears the merits-based hurdle (Pointes, at paras. 18 and
61-63; Bent, at para. 139). Ultimately, it is “the public interest in allowing meritorious
lawsuits to proceed” that is weighed against “the public interest in protecting
expression on matters of public interest” (Pointes, at para. 18 (emphasis added)).
[142]
Lower court judges may wish to enable proper appellate review and make
alternative findings through the public interest weighing exercise even if a claim fails
to clear the merits-based hurdle. The proper way to proceed is to follow the approach
adopted by our Court in Pointes: first determine whether the claim clears the
merits-based hurdle and then address the public interest hurdle (Pointes, at
2023 SCC 14 (CanLII)
why she saw fit to reverse the order of the analysis, despite no party having asked the
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