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Fairness - Inadequate Preparation
Comment
This is a new sub-topic in 2026. It emanates from adjudicator (ie. judge or tribunal) reasoning that I first noticed in the Robinson v Pickering (Div Ct, 2026) Charter case, and it acts as a form of adjudicator-initiated summary dismissal. Basically it amounts to the dismissal of a weak argument - not because it fails to satisfy whatever legal test the argument requires - but because the argument is so poorly advanced in terms of any or all of pleadings, evidence, legal authorities or otherwise that it almost can't be properly assessed.
CASES
. Wei v. Ye-Hang Canada (EH-C) Technology & Services Inc.
In Wei v. Ye-Hang Canada (EH-C) Technology & Services Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed an appellant argument for what I am calling 'inadequate preparation':[12] The appellants argue that the motion judge erred by dismissing the counterclaim without engaging the anti-SLAPP provisions of the Courts of Justice Act, R.S.O. 1990, c. C.43, which were referenced in the notice of motion. This argument cannot succeed. Section 137.1 is premised on an expression having been made. The appellants’ pleading in this regard, and evidence on cross-examination, was entirely deficient. The motion judge did not err in dismissing the counterclaim on the basis that the appellants produced no evidence that a defamatory statement had been made. In fact, on cross-examination the individual appellant expressed surprise when told she had advanced a counterclaim and could not provide any particulars of any allegedly defamatory statement made by the respondents. . Robinson v. The Corporation of the City of Pickering [inadequate grounding of Charter argument in admin context]
In Robinson v. The Corporation of the City of Pickering (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "a sanction imposed by Pickering’s City Council for breaches of the City’s Code of Conduct". These breaches related to applicant statements that the Integrity Commissioner found to be false, misrepresentative of the City's policy, and "which exposed the City to a potential breach of the Municipal Freedom of Information and Protection of Privacy Act".
Here the court addresses bare (in terms of evidence and jurisprudence) municipal administrative submissions that the applicant's Charter s.2(b) ['freedom of expression'] and s.15 ['discrimination'] has been breached:[18] With respect to s. 2(b), the applicant states the sanction penalizes her for communicating with her constituents and exposing municipal issues. She claims Council’s response was not a proportionate limit under s. 1 of the Charter. Under s. 15, she says she had been uniquely targeted and stripped of pay when she is a single mother and faces disproportionate financial hardship.
[19] The applicant did not raise either of these issues before the Integrity Commissioner despite being invited to provide submissions twice. She also knew from the previous application for judicial review cited above of the City’s position she was required to raise Charter issues before the Integrity Commissioner. In her factum before this court, her s. 15 claim totaled four lines and her s. 2(b) claim amounted to six lines.
[20] While an administrative decision-maker in some circumstances may have an obligation to identify impacted Charter rights, even where they are not raised before it, a Charter analysis cannot be completed where the claim is unknown and there is no relevant record before the decision-maker. In this case, the applicant neither raised nor provided any evidence that would have made a claim under s. 15 of the Charter relevant. This allegation is dismissed.
[21] With respect to s. 2(b), the applicant’s summary claim in this court does not merit remitting the matter to the Integrity Commissioner. The applicant’s analysis suggests she had an absolute right to express herself and does not admit of any weighing of Charter values with statutory objectives. Although the Integrity Commissioner did not directly address s. 2(b) rights, because they were not raised, the implication of the report was that the applicant’s speech was not of the type that lies at the heart of the values underlying freedom of expression. This is because the applicant was not engaging in genuine political debate. Instead, as found by the Integrity Commissioner, the applicant’s statements were in two cases “categorically false” and in one case “deliberately misrepresented” Council’s policy. The applicant’s conduct was “intentional” and had the goal of “discrediting and disparaging City staff, and casting doubt on and undermining the public’s trust in the City as a whole.”
[22] Considering these findings, it is implicit in the specific circumstances of this case that the City’s goal of ensuring City staff are treated with dignity and of ensuring and promoting public trust in the City, as required by the Code of Conduct, outweighed any limit on the applicant’s freedom of expression.
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