In Silver v. Imax (Leave), van Rensburg J. described the test of “reasonable possibility of success at trial” as having a “relatively low threshold” and requiring a consideration of all the evidence put forward by the parties concerning the alleged misrepresentations and the defences asserted (at para. 25). Later in her reasons, at para. 324, she noted that the word “reasonable” in s. 138.8 should be interpreted as having two components – first, a measurement of the degree of possibility of success and second, a reasoned and logical possibility: The word "reasonable" as it is used in s. 138.8 captures both meanings. "Reasonable" is used instead of "mere" to denote that there must be something more than a de minimis possibility or chance that the plaintiff will succeed at trial. The adjective "reasonable" also reminds the court that the conclusion that a plaintiff has a reasonable possibility of success at trial must be based on a reasoned consideration of the evidence.
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