The Respondent sought to dismiss an Appeal pursuant to Rule 14.74. The Appeal arose from the Respondent’s defamation Action against the Appellants. The Chambers Judge granted an interim injunction, requiring the Appellants to remove a Facebook page and to stop publishing statements alleging fraud against the Respondent. The Appellants asserted that the Chambers Judge erred in applying the tri-partite test for granting the injunction, as it was not the appropriate test for restraining allegedly defamatory publications.

Under Rule 14.74, the Court may dismiss all or part of an appeal if it is moot, frivolous, vexatious, without merit, improper, or if any part of the appeal constitutes an abuse of process. The Court confirmed that an appeal is moot where it would not resolve a controversy that affects, or could affect, the parties’ rights. The Court found the Appeal was not moot, as the underlying defamation Action remained ongoing and, if the Appeal were allowed and the injunction set aside, the Appellants would no longer be subject to the Order’s restrictions, directly affecting their rights.

The Court also found the Appeal was not frivolous, vexatious, improper, or an abuse of process. The Appellants sought to challenge what they alleged were legal errors. Although the Respondent felt aggrieved by the publications, the Court determined that the record did not establish any impropriety or misconduct by the Appellants in pursuing the Appeal.

The Court affirmed that an appeal is without merit only when it is hopeless or discloses no arguable basis. Further, the Court emphasized that dismissal under Rule 14.74(c) is a high threshold, which is not satisfied by mere weakness in the Appeal and found that the Respondent did not meet this standard.

Alternatively, the Respondent argued that any part of the Appellants’ factum relying on the Fraudulent Preferences Act, RSA 2000, c F-24 (the “Act”) should be struck pursuant to Rule 14.70, as the Act had not been pleaded or raised before the Chambers Judge. The Court rejected this argument, stating that the references to the Act did not seek to introduce new evidence, but rather recast defences already raised in response to the defamation claims before the Chambers Judge.

In the result, the Court dismissed the Respondent’s Applications.