s. 9(2)). Once the plaintiff in the proceeding has been served with an application for a
further steps in the proceeding until the application has been adjudicated (s. 5).
Furthermore, unless the court allows it, the plaintiff cannot amend his or her pleadings
in order to prevent or avoid a dismissal order (s. 6). Likewise, evidence is to be given
by affidavit (s. 9(4)). The rationale for these constraints is that an application under s. 4
of the PPPA is not meant to entail a determinative adjudication of the merits of the
underlying proceeding (Pointes, at paras. 50-52). Rather, it is intended to serve as an
expedient, cost-efficient way to dismiss proceedings that unduly restrict free expression
on matters of public interest.
[132]
Therefore, the question in this appeal is not whether this Court agrees with
Mr. Neufeld’s expression, or with Mr. Hansman’s counter-speech for that matter. The
question is merely whether Mr. Neufeld’s action should be dismissed at this early stage
of the proceeding. Unlike my colleague, I conclude that it should not. In doing so, I am
in no way prejudging the merits of Mr. Neufeld’s action in defamation; I am strictly
finding that he deserves to have his day in court.
II.
[133]
Analysis
As a preliminary matter, I part ways with my colleague regarding the
structure of her analysis. Although my colleague accurately describes the applicable
framework at para. 37 of her reasons, she does not apply it. Indeed, she begins with the
public interest weighing exercise and then examines the validity of the fair comment
2023 SCC 14 (CanLII)
dismissal order under s. 4 of the PPPA, generally speaking, neither party can take
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