Can a judge proceed cautiously if she conducts a stage two policy analysis under the Anns test on a pre-trial motion?

Ontario, Canada


The following excerpt is from Arora v. Whirlpool Canada LP, 2013 ONCA 657 (CanLII):

As this court commented in Haskett v. Equifax (2003), O.R. (3d) 577, a judge must proceed cautiously if she conducts a stage two policy analysis under the Anns test on a pre-trial motion. Feldman J.A. explained, at para. 24, that while the judge may well recognize potential policy concerns at the second stage, she should be circumspect in using those policy concerns to decide the “plain and obvious” question without a statement of defence and without any evidence. She cautioned, at para. 52: A court should be reluctant to dismiss a claim as disclosing no reasonable cause of action based on policy reasons at the motion stage before there is a record on which a court can analyze the strengths and weaknesses of the policy arguments…. [Citations omitted.]

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