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Access to Justice - Interesting Technique Samples. Li v. Barber
In Li v. Barber (Ont CA, 2025) the Ontario Court of Appeal dismissed a class action appeal from an interlocutory pre-certification order that dismissed the defendant's CJA 137.1 SLAPP motion, here where plaintiff Ottawa neighbours sued for private and public nuisance for trucker's protest activities.
Here the court considers the 'no valid defence' element of the SLAPP test, and the lower court's manner of explanation of law to the parties:[89] One condition a plaintiff must meet to avoid the dismissal of its proceeding that arises from public interest expression made by a defendant is to satisfy the motion judge that “there are grounds to believe that ... the [defendant] has no valid defence in the proceeding”: s. 137.1(4)(a)(ii).
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First error: Application of the wrong legal test
[92] Of all the awkward language employed in s. 137.1, the phrase “no valid defence” in s. 137.1(4)(a)(ii) ranks as the most awkward of all. That said, in Pointes Protection at para. 60 the Supreme Court set out the governing interpretation of that sub-section:In summary, s. 137.1(4)(a)(ii) operates, in effect, as a burden-shifting provision in itself: the moving party (i.e. defendant) must put potential defences in play, and the responding party (i.e. plaintiff) must show that none of those defences are valid in order to meet its burden. Mirroring the “substantial merit” prong, under which the plaintiff must show that there are grounds to believe that its claim has a real prospect of success, the “no valid defence” prong requires the plaintiff, who bears the statutory burden, to show that there are grounds to believe that the defences have no real prospect of success. This makes sense, since s. 137.1(4)(a) as a whole is fundamentally concerned with the strength of the underlying proceeding. [Emphasis added.] ....
[95] While attempting to make judicial reasons more accessible to the lay reader is a laudable goal, when it comes to describing the elements of the s. 137.1 test I think the best principle for any motion judge to follow is quite simple: just use the language of the Supreme Court’s decisions. Paraphrasing risks complicating an already too awkward statutory provision.
[96] The question then becomes whether, in paraphrasing the Supreme Court’s interpretation of the “no valid defence” element of s. 137.1, the motion judge altered and applied a different test, or whether his paraphrases were functional equivalents that lacked any substantive analytical difference? Reading the reasons of the motion judge as a whole, I think the latter is the case. While employing the language used by the Supreme Court in Pointes Protection would have been the better course of action, I am not persuaded that the motion judge’s language resulted in him applying a substantively different test. . Deveaux v. CORNWALL POLICE SERVICES
In Deveaux v. CORNWALL POLICE SERVICES (Div Court, 2024) the Ontario Divisional Court considered a JR, here where a self-presenting complainant to the Law Enforcement Complaints Agency (LECA) sought a review of LECA's suspension of it's investigation while a related civil case was resolved. This in the context of a situation where "the Crown withdrew the charge right before the cross-examination of a police witness", and the complainant submitted "that he has proof that officers who arrested him lied to the SIU initially and in court during his trial".
Here, Myers J essentially pleads with respondent lawyers involved to take the case in hand and "lead the clients to a fair outcome and not simply make the process impenetrable and inaccessible":[24] I obviously have no idea at this stage whether there is truth to Mr. Deveaux’s complaints. But someone among the government respondents should know. Watching a self-represented party try to understand and valiantly battle the procedural complexities thrown up by the phalanx of legal talent being brought to bear by government leads me to wonder how someone who truly has a provable claim can be expected to ever access civil justice.
[25] I am not sure I understand the war in which this proceeding is just one battle. Shouldn’t our police services be transparent and accountable to the public whom they serve? Are there documents or recordings that people know will prove the truth of the claims one way or the other? Is there a public interest in having them produced to answer the questions raised in these proceedings? If Mr. Deveaux’s allegations are not true, shouldn’t those involved be publicly exonerated? If they are true, shouldn’t those involved be accountable? In whose interest is requiring motion after motion after motion and three or more different legal proceedings to access evidence that will resolve an issue about alleged police misconduct pro or con? Who can afford the battles let alone the war of attrition being waged?
[26] I can only express the hope that if there is a lawyer who knows the truth of the allegations, that he or she will lead the clients to a fair outcome and not simply make the process impenetrable and inaccessible. Our system of justice is built upon the principle that lawyers are duty-bound to ensure that all parties receive a fair hearing. They are not just champions for the rich and strong. See: Law Society of Ontario, Rules of Professional Conduct, Rule 5.1-1: The lawyer’s duty to fearlessly raise every issue for their cleint [sic] is to be performed, “in a way that promotes the parties' right to a fair hearing in which justice can be done.” . R. v. Musclow [IMPORTANT re writing style option, needs studying - can be expanded usefully?]
In R. v. Musclow (Ont CA, 2024) the Ontario Court of Appeal cites an earlier exceptionally useful 'access to justice' judicial dictum which provides truly useful information to litigants by it's striving to state key basics of law - here in a Charter s.11(b) ['trial delay'] context:(a) Foundational Principles
[22] The framework for assessing unreasonable delay post-Jordan is well-established. It was first summarized by this court in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-40:A. The New Framework Summarized
[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
[35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
[38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [Emphasis in original.] [23] The standard of review is also uncontroversial. Although the application judge’s underlying findings of fact are reviewed on a standard of palpable and overriding error, her characterization of periods of delay and the ultimate conclusion as to whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.
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