decision, or by considering extraneous factors in passing the
resolutions allowing the development to proceed.
 170 Ontario proceeded with its appeal to the OMB from
the city council’s refusal to amend the official plan. In the course
of the OMB hearing, Pointes called Peter Gagnon, its president
and a signator of the agreement. Over the objection of counsel for
170 Ontario, Mr. Gagnon testified that, in his opinion, the proposed development would result in significant loss of coastal
wetlands, thereby causing substantial environmental damage. Mr.
Gagnon had given similar evidence before the SSMRCA.
 In February 2015, the OMB dismissed 170 Ontario’s
appeal. In doing so, Member Taylor held that the proposed development did not “have appropriate regard for the effective development on matters of provincial interest”, and specifically that
the proposed development was “not in the public interest as it
relates to the loss of coastal wetland”. Member Taylor preferred
Mr. Gagnon’s opinions to those of 170 Ontario’s expert. The
development has not proceeded.2
 About six months after the OMB dismissed 170 Ontario’s
appeal, 170 Ontario sued the defendants for breach of contract. In
its statement of claim, 170 Ontario asserted that the defendants
had breached the terms of the agreement when Mr. Gagnon gave
evidence at the OMB concerning the proposed development’s
negative impact on the wetlands and the associated environmental consequences. 170 Ontario claimed that those very matters
had been considered by the SSMRCA. According to the statement
of claim, it was “implicit in the [agreement] . . . that the
wetlands issue was settled”.
 The defendants did not file a defence, but responded with
a motion under s. 137.1 for an order dismissing 170 Ontario’s
claim. The defendants alleged that Mr. Gagnon’s testimony, which
provided the factual basis for the alleged breach of contract, related
to the environmental impact of the proposed development, a matter of public interest. The defendants further argued that 170
Ontario could not meet its onus under either branch of s. 137.1(4),
and thus that the action should be dismissed.
 The motion judge accepted that the lawsuit related to
expression on a matter of public interest. The burden therefore
fell on 170 Ontario to demonstrate that the action should be
2 The Divisional Court refused leave to appeal from the OMB decision: Avery v.
Pointes Protection Assn.,  O.J. No. 6077, 2016 ONSC 6463, 60 M.P.L.R.
(5th) 70 (Div. Ct.). The leave application was filed in March 2015, but decided in
November 2016, after this action was commenced and the s. 137.1 ruling made.