within an ongoing debate), and the motivation behind it (to combat discriminatory and
significant protection. Given Mr. Neufeld’s failure to establish harm serious enough to
outweigh that substantial public interest, the chambers judge did not err in concluding
that the weighing exercise under s. 4(2)(b) mandates dismissal of the underlying action.
C.
[94]
Issue 2: No Valid Defence
While the weighing exercise may be the core of the anti-SLAPP legislation,
the chambers judge first grounded his dismissal of the action in the finding that
Mr. Hansman had a valid fair comment defence. Section 4(2)(a)(ii) provides that a
court must make a dismissal order unless the plaintiff satisfies the court that there are
grounds to believe that the defendant has no valid defence in the proceeding. The
defendant must first point to any defences they intend to raise at trial, after which the
burden shifts to the plaintiff. “[G]rounds to believe” means “something more than mere
suspicion, but less than . . . proof on the balance of probabilities” (Pointes, at para. 40,
quoting Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40,
[2005] 2 S.C.R. 100, at para. 114). To satisfy this burden, a plaintiff must show the
defences advanced by the defendant “are not legally tenable or supported by evidence
that is reasonably capable of belief such that they can be said to have no real prospect
of success” (Pointes, at para. 59).
Fair Comment Defence
2023 SCC 14 (CanLII)
harmful expression and to protect transgender youth in schools) are all deserving of
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