Indeed, the Court concluded that the standard could not be so stringent as to prevent
analysis under s. 137.1(4) of the CJA:
However, while frivolous suits are clearly insufficient, “something
more” cannot require a showing that a claim is likely to succeed either, as
some parties have posited. Neither the plain meaning nor the legal
definition of “substantial” comports with a “likely to succeed” standard.
The legislative and statutory context does not support such a standard
either. If “substantial merit” requires a showing of being likely to succeed,
this could unduly prevent cases from proceeding to the crux of the inquiry
that is the weighing exercise under s. 137.1(4)(b). Given the importance of
the weighing exercise in the legislative history, this cannot possibly be
what the legislature contemplated. Indeed, nothing in the legislative history
. . . points to a “likely to succeed” standard as the threshold for the plaintiff
to prevail at the merits-based hurdle of s. 137.1. While the plaintiff need
not definitively demonstrate that its claim is more likely than not to
succeed, the claim must nonetheless be sufficiently strong that terminating
it at a preliminary stage would undermine the legislature’s objective
of ensuring that a plaintiff with a legitimate claim is not unduly deprived
of the opportunity to vindicate that claim.
...
Statutory interpretation is a contextual exercise that requires reading a
provision with and in light of other provisions: accordingly, if the bar is set
too high at s. 137.1(4)(a)(i) or (ii), a motion judge will never reach
s. 137.1(4)(b) — this cannot possibly be what the legislature contemplated
given the legislative history and intent behind s. 137.1. The legislature
repeatedly emphasized proportionality as the paramount consideration in
determining whether a lawsuit should be dismissed. Weighing the public
interest in freedom of expression and public participation against the public
interest in vindicating a meritorious claim is a theme that runs through the
entire legislative history, and this informs how s. 137.1 should be judicially
understood. [Emphasis added; paras. 48 and 63.]
[137]
One of the objectives behind s. 137.1 of the CJA and s. 4 of the PPPA alike
is to ensure “that a plaintiff with a legitimate claim is not unduly deprived of the
2023 SCC 14 (CanLII)
cases from getting to the public interest weighing exercise, which is the core of the
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