November 10, 2021 | Issue 64

Today at the SCC: 6 Leaves 

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Leave Applications: 6 Dismissed


Administrative Law: Discrimination

Konesavarathan v. University of Guelph Radio, 2020 FCA 148 (39714)
The Applicant was a Canadian citizen and racialized person residing in Guelph, Ontario. The Respondent was a non‑profit corporation operating a community radio station in Guelph. The Applicant joined the Respondent as a volunteer in 2015 and at the annual general meeting put himself forward to become a member of the Board. The Respondent’s by‑laws require, among other things, that not less than 50% of directors be women. The 2015 election was to fill four seats for males who were either members of the community or faculty of the university. The six candidates had an opportunity to speak and present their qualifications, after which the attendees voted. The Applicant was not elected. There were two additional unfilled seats on the Board designated for women, but there were not enough women seeking a directorship at the time. The Applicant filed a complaint with the CHRC alleging the Respondent’s election procedure discriminated against him on the basis of disability, race, national or ethnic origin, and colour. The CHRC advised the Applicant it would be preparing a Section 40/41 Report to address whether the complaint was trivial, frivolous, vexatious or made in bad faith under s. 41(1)(d) of the Canadian Human Rights Act, and after receiving the Applicant’s submissions, declined to consider the complaint. An application for judicial review was dismissed by the Fed. Court, as was an appeal to the Fed. C.A. "The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to dismissed."

Criminal Law: Entrapment

Brown v. R., 2021 NLCA 27 (39731)
A constable of the Royal Newfoundland Constabulary created a fictional profile of a young female and placed an ad on the website The Applicant, Kyle Brown, responded to the ad, to which the fictitious girl informed him she was 15 years old. The Applicant continued communicating with the fictitious girl, pursued sexual inquiries and suggested they meet despite being told she was underage. The Applicant was charged with three counts of child luring contrary to s. 172.1(1) of the Criminal Code. The Provincial Court found the Applicant guilty of all three counts of child luring and dismissed his application for a stay of the charges on the basis of entrapment. The decision regarding the stay of the charges on the basis of entrapment was appealed by the Applicant. The N.L.C.A. dismissed the appeal. "The application for leave to dismissed."

Criminal Law: Sexual Touching

C.W.A.W. v. R., 2021 SKCA (39727)
There is a publication ban in this case, and a publication ban on the party, in the context of a sexual touching conviction. "The application for leave to dismissed."

Environmental Law: Climate Change

Highlands District Community Association v. British Columbia (Attorney General), 2021 BCCA 232 (39775)
The Respondent company purchased 66 acres of vacant lands with the intention of creating a rock quarry. The lands are located in the District of Highlands on Vancouver Island. The lands are not zoned for industrial or commercial uses, and the company was unsuccessful in its rezoning application. However, despite significant opposition by the Applicant community association, the District and the Capital Regional District, the company successfully applied for a Mine Permit to operate a rock quarry pursuant to the Mines Act. A senior Mines Inspector found there were no health, safety, economic or environmental grounds to deny the permit, which was granted subject to numerous conditions relating to environmental protection. The decision said climate change is not relevant under the Mines Act. The Applicant’s petition to quash the Mine Permit was dismissed by the B.C.S.C. as was an appeal to the B.C.C.A. "The application for leave to dismissed with costs to the respondent, O.K. Industries Ltd."

Family Law: Matrimonial Home Writ

Iafolla v. Lasota, 2021 ONCA 245 (39713)
The Applicant, Mr. Iafolla, was a judgment creditor of Ms. Lasota’s ex‑husband (Mr. Antonov), who was awarded a portion of the proceeds of sale from the matrimonial home in a Divorce Judgment.  Mr. Iafolla applied for a declaration he was entitled to Mr. Antonov’s portion of the proceeds of sale under the Ontario Creditor’s Relief Act. Before Ms. Lasota and Mr. Antonov separated, Mr. Antonov, an uninsured motorist, was involved in a motor vehicle accident with Mr. Iafolla. Mr. Iafolla obtained judgment against Mr. Antonov and he registered a writ against the matrimonial home in November, 2017. In uncontested divorce proceedings in July 2018, the divorce judge granted Ms. Lasota sole custody of the child of the marriage and ordered Mr. Antonov to pay monthly spousal and child support.  The matrimonial home was ordered to be sold and from Mr. Antonov’s share of the net proceeds, he was required to pay Ms. Lasota arrears of child support, an equalization payment and costs.  The remaining balance of his share was ordered to be held in trust as security for future child and spousal support obligations. At the time, the divorce judge was unaware of the writ. Mr. Iafolla applied under the Ontario Rules of Civil Procedure as a judgment creditor, asserting priority over the monies remaining in trust. The trial judge dismissed Mr. Iafolla’s application. The Ont. C.A. allowed his appeal in part, and directed the matter back to the divorce judge to determine whether a material change in circumstances had occurred in light of the writ, to ensure child support was in compliance with the provisions of the Divorce Act. "The application for leave to dismissed with costs."

Labour Law: Jurisdiction

Nelson v. Ontario, 2020 ONCA 751 (39548)
The Applicant, Hentrose Nelson, was employed by the Ontario Public Service (“OPS”) and was a member of the Association of Management, Administrative and Professional Crown Employees (“union”). Ms. Nelson commenced a civil action at the Ontario Superior Court of Justice against the Crown and union. Her claims were grounded in allegations of discrimination and harassment arising from her employment with the OPS. The Crown and union moved to dismiss Ms. Nelson’s action on the basis the court does not have jurisdiction to hear the matter. The Ontario Superior Court of Justice agreed it lacked jurisdiction to hear the matter and dismissed the action. Ms. Nelson appealed the decision; the Ont. C.A. dismissed the appeal. "The application for leave to dismissed with costs to David Bulmer, as representative of the Association of Management, Administrative and Professional Crown Employees."

Appellate Extras

Featured Court of Appeal Decision

We also track what’s happening in the appellate world before it gets to Canada’s highest court. Below is this week’s featured Court of Appeal decision from our Appellate Monthly newsletter.

Family Law: Adoption Orders & Test for Civil Fraud

JSG v Alberta (Director of Child, Youth and Family Enhancement), 2021 ABCA 364 (CanLII)

Key Words: Section 73.1 of the Child, Youth and Family Enhancement Act, RSA 2000, c C-12; adoption order; civil fraud

Read our summary here

Upcoming SCC Hearings

For a full list of upcoming Supreme Court of Canada hearings and a quick look at what they’re about, check out our annotated appeal schedule

Last Word

Remembrance Day Tomorrow

I will remember my father, a WW2 vet, died 2 years ago.

I will also remember Peter Cory, former SCC judge and WW2 bomber pilot, also died 2 years ago. When I worked at the S.C.C. (Executive Legal Officer to Chief Justice Lamer), we (Justice Cory and I) played hooky one afternoon to go see Memphis Belle at a matinée, which had just come out (1990). Powerful; actual footage incorporated. Thought Justice Cory might pull the armrests off when, in the movie, the lead pathfinder plane orders a go-around in heavy flak because the target is too cloud-obscured (ie. would likely lose more planes and crews to the flak as they come around again for a visual on target, but not want to off-load the bombs and hit civilian areas). I nearly pulled an armrest off myself.

Not everyone survives, including on Justice Cory’s plane.

Here’s what he wrote (in 1985): Remembrance Day Convocation (written when on the Ont. C.A.).

If you see the movie you may notice the end credits have a dedication to “all airmen, friend and foe, who fought in WW2”. These may not be the exact words but I can absolutely say for sure the dedication does include “or foe”.

Here’s the trailer to the 1990 production, click here (the movie is way better than the trailer).

And here’s the trailer to the original 1944 documentary, click here. I believe the full 40 min movie (the 1944 documentary) is available here, courtesy of the U.S. Library of Congress.

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End Notes

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