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Appeal-Judicial Review - Failure to Make Alternate Findings

. Mondal v. Kirkconnell

In Mondal v. Kirkconnell (Ont CA, 2023) the Court of Appeal considered appeals from two SLAPP motions, both of which resulted in the dismissal of the actions.

In these quotes the court considers the problems with a court failing to make alternate findings, and sometimes consequent need to remit issues back down to the lower court:
[66] The motion judge concluded his analysis following consideration of the merits-based hurdle and did not address the public interest hurdle – the weighing stage of the analysis. Evans-Bitten submits this matter should be remitted to the motion judge to consider the public interest hurdle.

[67] This is an example of the sort of problem that can arise when a motion judge does not make alternative findings. Although a majority of the Supreme Court stated in Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at para. 53 (released after these appeals were argued), that the order in which a judge chooses to address the merits-based and public interest hurdles is a matter of discretion, it will often be advisable to consider the merits-based hurdle first, so as to better inform the weighing analysis at the public interest stage. But if this approach is taken, the possibility that an error might be made suggests that the prudent course is to make alternative findings on the public interest hurdle, otherwise it may be necessary to remit a matter for further proceedings under s. 137.1 following a successful appeal. In this case, however, I am satisfied that this court has sufficient evidence and argument to conduct the weighing that is required and will proceed to do so.


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