ONTARIO SUPERIOR COURT OF JUSTICE ZEXI LI, HAPPY GOAT COFFEE COMPANY INC.,

The Moving Parties say that they meet the first step of the operative “Pointes test”, in that this proceeding arises from expression relating to a matter of public interest, but that the plaintiffs (the “Responding Parties”) fail the remaining steps of the test. [...] The Responding Parties, through their counsel, have agreed to stipulate that should this Court be of the view that the other moving parties in this case meet the first step of the Pointes test (as described below), then the defendants Lich and Barber will also be taken to have satisfied the first step of the test as well. [...] 137.1 of the CJA: (i) the onus is on the moving party (in this case, the appellants who were the defendants by counterclaim) to satisfy the motion judge that the proceeding arises from an expression relating to a matter of public interest; and (ii) if that burden is met, the responding party (in this case, the respondent Kahu who was the plaintiff by counterclaim) must then satisfy the motion judg. [...] This suggests that the parties are expected to put forward a record, commensurate with the stage of the proceeding at which the motion is brought;40 (e) in light of the existence of a record, the substantial merit standard calls for an assessment of the evidentiary basis for the claim – this is why the claim must be supported by evidence that is reasonably capable of belief;41 (f) a real prospect. [...] In Antrim, the Court also confirmed at paragraph 28 that the focus in nuisance is on whether the interference suffered by the claimant is unreasonable, not on whether the nature of the defendant’s conduct is unreasonable.50 40.