



COURT OF APPEAL FOR ONTARIO

CITATION: Latner v. Ontario Securities
    Commission, 2021 ONCA 316

DATE: 20210511

DOCKET: C67944

Juriansz, van Rensburg and
    Sossin JJ.A.

BETWEEN

Gabriel Latner

Applicant (Appellant)

and

Ontario Securities Commission

Respondent (Respondent)

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) 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 appellants 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 Courts 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
    appellants 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 appellants argument that
    the motion judge improperly reversed the onus on the respondents 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 thresholdshared any
    personal characteristic beyond an inability to meet the threshold. The motion
    judge also noted that the appellant failed to plead that this grouphas
    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.


