possibility of success (at paras. 67-68), with a “desired precise
balance between deterrence and compensation . . . that found
expression in all of the limits built into the scheme” (at para. 69).
 In Mask CA, Strathy C.J.O. similarly set out the role of
the court on a motion for leave to proceed under s. 138.8(1) (at
The judge was not limited to a consideration of the plaintiff’s evidence. He
was required to consider the evidence of both parties, keeping in mind the
relatively low merits-based threshold, and the limitations of the record before
him. He was entitled, indeed required, to undertake a critical evaluation of all
the evidence and this necessarily required some weighing of the evidence,
drawing of appropriate inferences and the finding of facts established by the
record: see Theratechnologies at paras. 38-39; Kinross at paras. 52, 54-55, 59.
 In the recent case of Rahimi, Hourigan J.A. reviewed the
decisions of the Supreme Court in CIBC SCC and
Theratechnologies, and reiterated the tests set out above (Rahimi, at paras.
38 and 40).
 Consequently, applying the above comments, the court on
a motion for leave to proceed under s. 138.8(1) should consider
“all of the evidence” including “appropriate inferences” when
determining if there is “some credible evidence” that can support
a “plausible analysis of the applicable legislative provisions”.
 The court must draw a balance between ( i) on the one
hand, not engaging in a “finely calibrated weighing process” (as
per Strathy J. (as he then was) in Green v. Canadian Imperial
Bank of Commerce,  O.J. No. 3072, 2012 ONSC 3637
(S.C.J.), at para. 374), and “keeping in mind the relatively low
merits-based threshold, and the limitations of the record before
[the court]” (Mask CA, at para. 45), while ( ii) on the other hand,
ensuring that it conducts a “robust screening” of the case to
ensure that there is a “plausible analysis of the applicable legislative provisions, and some credible evidence in support of the
claim . . . to ensure that cases with little chance of success — and
the time and expense they impose — are avoided” (
Theratechnologies, at paras. 38-39).18
Issue 5: The necessity to apply the leave test to every claim
asserted under s. 138.3
 The leave test must be applied to each misrepresentation
claim asserted under s. 138.3 and considered with respect to
18 See, also, the recent summary of the test for leave by Perell J. in Paniccia
v. MDC Partners Inc. (2018), 142 O.R. (3d) 421,  O.J. No. 3077, 2018
ONSC 3470 (S.C.J.), at paras. 87-88 (“Paniccia”).