The motion judge’s interpretation of s. 137.1(4)(a)( ii),
which refers to the existence of a “valid defence”, is set out in para.
50 of his reasons:
The defendant has not pleaded its defence in this proceeding. Without
a pleading there is no way for the court to be satisfied that it has a “valid
defence” in the proceeding and I am not satisfied that the defendant has
a “valid defence” based on the material before me on the motion.
 The motion judge wrongly put the onus on Pointes to
satisfy him that it had a “valid defence”. Section 137.1(4)(a)( ii)
put the persuasive onus on 170 Ontario to satisfy him that there
were grounds to believe that Pointes had “no valid defence” (see
above, at para. 84). Nor is the absence of a statement of defence
determinative: see s. 137.2(1). In any event, the conclusion that
170 Ontario could not show that there were grounds to reasonably believe that its interpretation of the agreement had substantial merit leads inevitably to the conclusion that 170
Ontario also could not show that there were reasonable grounds
to believe that the defendants’ interpretation of the contract
had no validity.
( ii) The motion judge’s interpretation of section 137.1(4)(b)
 In weighing the harm suffered by 170 Ontario as a result
of the defendants’ expression against the public interest in
protecting the defendants’ expression, the motion judge focused
almost exclusively on the harm caused to 170 Ontario by the loss of
its reasonable expectation that its litigation with the defendants
over the proposed development was finished. While finality in
litigation is an important public value, I repeat that 170 Ontario’s
reasonable expectation of finality is dependent entirely on the correctness of its interpretation of the agreement. As explained above,
I do not think that the agreement could reasonably be read as foreclosing Mr. Gagnon’s testimony before the OMB.
 Even accepting that interference with 170 Ontario’s reasonable expectation of finality in the litigation could be viewed as
causing some harm to 170 Ontario for the purposes of
s. 137.1(4)(b), there is no evidence of any other harm. In particular,
there is no evidence of any damages suffered or likely to be suffered
by 170 Ontario as a result of the alleged breach of the agreement.
 The motion material provides little, if any, insight into
either the nature of 170 Ontario’s damage claim, or the quantum
of that claim. Having reviewed the material several times,
I remain uncertain as to 170 Ontario’s damages theory. I do not
understand 170 Ontario to argue that it is entitled to damages
from the defendants because the failure to obtain the OMB’s
approval for the development can be laid at the defendants’ feet.