Court File and Parties

Court of Appeal for Ontario Date: 20210511 Docket: C67944

Juriansz, van Rensburg and Sossin JJ.A.

Between

Gabriel Latner Applicant (Appellant)

and

Ontario Securities Commission Respondent (Respondent)

Counsel: Gabriel Latner, acting in person Andrew Lokan and Elizabeth Rathbone, for the respondent

Heard: May 5, 2021, by video conference

On appeal from the order of Justice Bernadette Dietrich of the Superior Court of Justice, dated November 28, 2019.

Reasons for Decision

[1] The appellant appeals from an order striking out his application challenging a regulation adopted and enforced by the Ontario Securities Commission that allows individuals to purchase stocks in the “exempt market” if they meet minimum income and net worth thresholds. His application rested on the premise that “economic class” should be recognized as an analogous ground under s. 15 (1) of the Canadian Charter of Rights and Freedoms. The motion judge struck the application without leave to amend under r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 because she reasoned that his position that “economic class” should be recognized as an analogous ground under s. 15 was doomed to fail.

[2] We agree with the cogent reasons of the motion judge. We do not accept the appellant’s argument that the motion judge erred by making a finding of fact by holding “economic class is not an immutable personal characteristic”. She used that phrase, not in making a finding of fact, but in quoting from para. 13 of the Supreme Court’s judgment in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203. She went on to observe that the Supreme Court added that an analogous ground flows from “the central concept of immutable or constructively immutable personal characteristics” and “impacts on a discrete and insular minority, or a group that has been historically discriminated against”: Corbiere, at para. 13. It is clear in the context of the decision as a whole that the appellant’s application did not disclose sufficient facts to meet the requirements to establish an analogous ground, as set out in Corbiere.

[3] Nor do we accept the appellant’s argument that the motion judge improperly reversed the onus on the respondent’s motion to strike. The motion judge correctly identified that “[t]he facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated”: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 22. She then identified the legal test that the facts pleaded had to satisfy in order for the application to not be struck. The motion judge held that the applicant “ha[d] not pleaded any material facts to show that all Canadians who cannot meet the impugned threshold…shared any personal characteristic beyond an inability to meet the threshold.” The motion judge also noted that the appellant “failed to plead that this group…has suffered historic disadvantage or is at risk of having such disadvantages perpetuated by stereotyping or prejudice.” When her reasons are read as a whole, it is clear the motion judge struck the application because she was satisfied there was no reasonable prospect it would succeed because the law was “sufficiently settled” as applicable to the facts as pled by the appellant.

[4] We agree that there was no chance that the economic class of the “vast majority of Canadians” who would be precluded from investing in the capital markets for their inability to meet the impugned threshold, could acquire the status of a protected group under s. 15 of the Charter. The application cannot be amended to avoid that result. The motion judge did not err in principle or act unreasonably in refusing the appellant leave to amend his application.

[5] The appeal is dismissed. Costs are fixed in the amount of $10,000 all-inclusive.

“R.G. Juriansz J.A.”

“K. van Rensburg J.A.”

“Sossin J.A.”