Court Of Appeal Summaries (September 2 – September 6, 2024)

Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of September 2, 2024. There were only three substantive civil decisions released this week.

Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) involved the constitutional validity of the Tamil Genocide Education Week Act, 2021. The appellants argued that the Act was ultra vires Ontario and infringed their ss. 2(b) and 15(1) Charter rights by proclaiming that a genocide of the Tamils had been perpetrated by the Sinhalese-dominated Sri Lankan government during the Sri Lankan Civil War that ended in 2009. The Court dismissed their appeal, finding no Charter breach or violation of the division of powers provisions of the Constitution.

Jacob v. Canada (Attorney General) was a Charter application/appeal seeking to have the $5,000 income thresholds to qualify for the federal government's pandemic EI/CERB/CRB benefits declared unconstitutional. The argument was that the threshold discriminated against disabled workers, who disproportionately fall below the $5,000 annual income threshold when compared to the rest of the population. The Court dismissed the appeal, but on different grounds. It disagreed with the application judge that the threshold was discriminatory, finding that it was. However, the Court felt the measure was saved by s. 1 of the Charter. Perhaps we have not heard the last of this case.

Manjunath v. Kuppa was a family law decision in which the husband and his friends (purported mortgagees) ignored a court order to pay the proceeds of sale of the matrimonial home into court ($1.6 million). The husband also failed to provide adequate disclosure. The application judge struck his pleading, paving the way for an uncontested trial without notice to, or the participation of, the husband. His appeal from that order was dismissed.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Jacob v. Canada (Attorney General), 2024 ONCA 648

Keywords: Pensions, Charter Claims, Equality, Life, Liberty, Security of the Person, Canadian Charter of Rights and Freedoms, ss , 15, Canada Emergency Response Benefit Act, S.C. 2020, c. 5, s. 8, Canada Recovery Benefits Act, S.C. 2020, c. 12, s. 2, Vital Statistics Act, R.S.B.C. 1996, c. 49, R. v. Sharma, 2022 SCC 39, Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, R. v. Pike, 2024 ONCA 608, Fraser v. Canada (Attorney General), 2020 SCC 28, Withler v. Canada (Attorney General), 2011 SCC 12, R. v. C.P., 2021 SCC 19, Begum v. Canada (Citizenship and Immigration), 2018 FCA 181, Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, Ontario Teacher Candidates' Council v. Ontario (Education), 2023 ONCA 788, Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54, Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, Simpson v. Canada (A.G.) et al., 2020 ONSC 6465, Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, RJRMacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, Canada (Attorney General) v. JTI-MacDonald Corp., 2007 SCC 30, Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, Trociuk v. British Columbia (Attorney General), 2003 SCC 34, Ontario v. Trinity Bible Chapel et al., 2022 ONSC 1344, Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66

Sri Lankan Canadian Action Coalition v. Ontario (Attorney General), 2024 ONCA 657

Keywords: Constitutional Law, Division of Powers, Double Aspect Doctrine, Pith and Substance Doctrine, Charter Rights, Freedom of Expression, Equality, Standard of Review, Tamil Genocide Education Week Act, 2021, SO 2021, c 11, Canadian Charter of Rights and Freedoms, ss. 2(b), 15(1), Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1984, 78 U.N.T.S. 277 (entered into force 12 January 1951), Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, s. 4, Ukrainian Famine and Genocide (Holodomor) Memorial Day Act, SA 2008, c U-0.5, Act to proclaim Armenian Genocide Memorial Day, CQLR c J-0.2, Holocaust Memorial Day Act, SBC 2000, c 3, Holocaust Memorial Day Act, SC 2003, c. 24, Sri Lankan Canadian Action Coalition v Ontario (Attorney General), 2022 ONSC 1675, Canadian Western Bank v Alberta, 2007 SCC 22, Constitution Act, 1867: Reference re An Act respecting First Nations, Inuit, and Métis children, youth and families, 2024 SCC 5, Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, Québec (Attorney General) v Canada (Attorney General), 2015 SCC 14, RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Reference re Genetic Non-Discrimination Act, 2020 SCC 17, Kitkatla Band v British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, Chatterjee v Ontario (Attorney General), 2009 SCC 19, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, Housen v Nikolaisen, 2002 SCC 33, Reference re Securities Act, 2011 SCC 66, Murray-Hall v Québec (Attorney General), 2023 SCC 10, Motors of Canada Ltd. v City National Leasing, [1989] 1 S.C.R. 641, Reference re Validity of the Combines Investigation Act and of s. 498 of the Criminal Code, [1929] SCR. 409, Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13, Ontario English Catholic Teachers' Assn. v. Ontario (Attorney General), 2001 SCC 15, Adler v Ontario, [1996] 3 SCR 609, Public School Boards' Assn of Alberta v Alberta (Attorney General), 2000 SCC 45, Schneider v The Queen, [1982] 2 SCR 112, R v Hydro-Québec, [1997] 3 SCR 213, Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, R v Crown Zellerbach Canada Ltd., [1988] 1 SCR 401, Switzman v Elbling and AG of Quebec, [1957] SCR 285, Reference Re Alberta Statutes, [1938] SCR 100, Canada (Prime Minister) v Khadr, 2010 SCC 3, Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, Canadian Broadcasting Corp. v Canada (Attorney General), 2011 SCC 2, R v Sharma, 2022 SCC 39, Poorkid Investments Inc. v Ontario (Solicitor General), 2023 ONCA 172, Eldridge v British Columbia (Attorney General), [1997] 3 S.C.R. 624, Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69, Bracken v Niagara Parks Police, 2018 ONCA 261, Harper v Canada (Attorney General), 2004 SCC 33, Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31, Figueiras v Toronto (Police Services Board), 2015 ONCA 208, Thomas Christian Zaugg v Ontario (Attorney General), 2019 ONSC 2483, Toronto (City) v Ontario (Attorney General), 2019 ONCA 732

Manjunath v. Kuppa, 2024 ONCA 668

Keywords: Family Law, Domestic Contracts, Separation Agreements, Civil Procedure, Disclosure, Orders, Enforcement, Striking Pleadings, Family Law Rules, O. Reg. 114/99, rr. 1(8)(c), 1(8.4), 2(2) and (3), Purcaru v. Purcaru, 2010 ONCA 92, Marcoccia v. Marcoccia, 2008 ONCA 866, Kovachis v. Kovachis, 2013 ONCA 663, Mullin v. Sherlock, 2018 ONCA 1063

CIVIL DECISIONS

Jacob v. Canada (Attorney General), 2024 ONCA 648

[Sossin, Monahan and Madsen JJ.A.]

Counsel:

S. Choudhry, D. Baker and D. Mulroy for the appellant

D. Rasmussen, B. Sunallah and M. Ambwani for the respondent

E. Krajewska, E. Arsenault, M. Chowdhury and A. Bakshi for the intervener Income Security Advocacy Centre

J. Hunter, K. Ball and Z. Vaid for the intervener Canadian Civil Liberties Association

Keywords: Pensions, Charter Claims, Equality, Life, Liberty, Security of the Person, Canadian Charter of Rights and Freedoms, ss 7, 15, Canada Emergency Response Benefit Act, S.C. 2020, c. 5, s. 8, Canada Recovery Benefits Act, S.C. 2020, c. 12, s. 2, Vital Statistics Act, R.S.B.C. 1996, c. 479, R. v. Sharma, 2022 SCC 39, Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, R. v. Pike, 2024 ONCA 608, Fraser v. Canada (Attorney General), 2020 SCC 28, Withler v. Canada (Attorney General), 2011 SCC 12, R. v. C.P., 2021 SCC 19, Begum v. Canada (Citizenship and Immigration), 2018 FCA 181, Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, Ontario Teacher Candidates' Council v. Ontario (Education), 2023 ONCA 788, Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54, Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, Simpson v. Canada (A.G.) et al., 2020 ONSC 6465, Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, RJRMacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, Canada (Attorney General) v. JTI-MacDonald Corp., 2007 SCC 30, Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, Trociuk v. British Columbia (Attorney General), 2003 SCC 34, Ontario v. Trinity Bible Chapel et al., 2022 ONSC 1344, Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66

facts:

The appellant, V.J., appealed the decision of an application judge who dismissed her application as failing to establish a breach of s. 15(1) of the Canadian Charter of Rights and Freedoms.

V.J. received the Canada Pension Plan Disability Benefit ("CPP-D") on the basis of severe and prolonged disability. Recipients of CPP-D are permitted to supplement their benefits with income from employment up to a certain threshold of allowable earnings. As she was able to, V.J. continued to work at various jobs.

As a result of the COVID-19 pandemic, EI claims were divided into two streams, the EI Emergency Response Benefit ("EI ERB") and the Canada Emergency Response Benefit ("CERB"). In order to qualify for CERB, an eligibility criterion required a minimum income threshold of $5,000 in the preceding 12 months. The Canada Recovery Benefits ("CRB") which eventually replaced CERB also included the $5,000 minimum income threshold. CPP-D was not a specified source of income under this framework. Accordingly, V.J. did not qualify as a worker under the CERB and subsequent CRB framework.

V.J. brought an application that challenged both the $5,000 income threshold as an all-or-nothing eligibility requirement, and the exclusion of CPP-D from the eligible income sources counted toward this threshold, as contrary to s. 15(1) of the Charter. The application judge dismissed her application. The claimant group to which V.J. belonged for the purpose of her Charter application was disabled workers with active labour market participation.

On appeal, V.J. sought a series of declarations of invalidity in relation to the statutory provisions that established the $5,000 income threshold and defined eligible income sources. In support, V.J. raised two arguments. First, that the application judge failed to make essential fact findings necessary to determine her s. 15 claim. Second, that the judge erred in finding V.J.'s failure to meet the $5,000 income threshold was not caused by her disability. V.J. claimed the second argument was not before the application judge and he dismissed her s. 15 claim on this basis.

issues:

Did the application judge err in dismissing the s. 15(1) Charter claim as failing to establish a breach?

holding:

Appeal dismissed.

reasoning:

Yes, the application judge erred in not finding a breach of s. 15(1). However, the breach was justifiable under s. 1 of the Charter (under the Oakes test). The application judge correctly iterated the two-part test for an adverse effects s. 15(1) Charter claim. Step one of the test requires assessing whether the impugned law created a distinction based on an enumerated or analogous ground. Step two asks whether the impugned law imposed a burden or denied a benefit in a manner that has the effect of reinforcing the perpetuating or existing disadvantage.

The Court assessed step one of the test, and found that the application judge failed to approach the s. 15(1) analysis from the perspective of substantive equality. The application judge examined V.J.'s personal circumstances in detail but did not engage with evidence about the claimant group to which V.J. belonged. The application judge briefly summarized the evidence tendered on the broader question of discrimination of workers with disabilities. This evidence flowed from federal public servants who were involved in the design of the social programs in question and expert evidence provided by specialists in the field of social inclusion for people with disabilities. However, the Court found that the application judge failed to link these perspectives with V.J.'s evidentiary burden. This led the application judge to consider whether the statutory provision which stipulated the minimum income threshold expressly discriminated against workers with disabilities. The court found that although the income threshold was neutral on its face, it has a disproportionate impact on workers with disabilities. To support this, the Court looked at statistics which demonstrated that disabled workers are 1.6 times more likely than non-disabled workers to have employment income below $5,000. The Court asserted that the application judge failed to evaluate V.J.'s personal evidence in the context of the broader claimant group; this resulted in an error of law. Accordingly, the Court found that V.J. did meet the first step of the s. 15(1) analysis and went on to consider step two of the test.

In step two of the test, the Court found that the $5,000 income threshold and the exclusion from CPP-D from the calculation of that threshold, made it substantially more difficult for workers with a disability to replace lost employment income, thereby exacerbating their disadvantage. Citing Fraser, the court confirmed that not all members of the protected group need be impacted in the same way. There was ample evidence to support the fact that disabled workers face significant barriers in the workforce and tied this to the specific exclusion of CPP-D from eligible income. With the finding that V.J. had established that her s. 15(1) rights were violated, the Court turned to a s. 1 analysis.

Under the Oakes framework, the Court found the infringement was justifiable. V.J. confined her submissions to minimal impairment, arguing that if the CERB and CRB had a lower income threshold for workers with a disability, it would have increased eligibility amongst the claimant group. Canada argued that the limits of the impugned provisions were proportional and rationally connected to the intent of government to process a vast number of applications within a short amount of time. Canada further contended that the program limits were minimally impairing and the benefit outweighed the deleterious effects.

Part one of the Oakes test was not in dispute. Both parties agreed the objective was pressing and substantial. In part two of the test, the Court found that the limit was rationally connected. There was debate around the minimal impairment criteria. As the pandemic persisted, amendments made to the suite of EI programs through CERB to CRB, and the adjacent amendments made to the EI criteria, ameliorated the infringement previously found. The Court asserted that this indicated two things. That the original legislation was not minimally impairing, but also that the government was responsive to rights-infringing concerns. The Court ultimately found that while the CERB and CRB programs may not have represented a minimal impairment of rights, the "mid-course correction" by Canada to the EI programs highlighted an attempt by government to respond to concerns in the context of a crisis of extraordinary nature. The Court went on to conduct the final balancing assessment. The Court found that the benefits of infringement did outweigh the negative effects, as the government was able to quickly provide income support to millions of workers impacted by the pandemic. Given that the s. 15(1) breach was saved by s. 1, a consideration of the proper remedy for the breach was unnecessary.

Sri Lankan Canadian Action Coalition v. Ontario (Attorney General), 2024 ONCA 657

[Fairburn A.C.J.O., van Rensburg and Zarnett JJ.A.]

Counsel:

H. S. Fairley, N. J. Kasozi, S. Kebeich and N. M. Rouleau, for the appellants Sri Lankan Canadian Action Coalition and Sri Lanka Canada Association of Brampton

D. R. Chohan, for the appellant Neville Hewage

R. Amarnath and P. Atkinson, for the respondent

A. Weaver and G. Philipupillai, for the interveners National Council of Canadian Tamils, Canadian Tamil Academy and Canadian Tamil Youth Alliance

J. Shanmuganathan, for the intervener Tamil Rights Group

Keywords: Constitutional Law, Division of Powers, Double Aspect Doctrine, Pith and Substance Doctrine, Charter Rights, Freedom of Expression, Equality, Standard of Review, Tamil Genocide Education Week Act, 2021, SO 2021, c 11, Canadian Charter of Rights and Freedoms, ss. 2(b), 15(1), Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1984, 78 U.N.T.S. 277 (entered into force 12 January 1951), Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, s. 4, Ukrainian Famine and Genocide (Holodomor) Memorial Day Act, SA 2008, c U-0.5, Act to proclaim Armenian Genocide Memorial Day, CQLR c J-0.2, Holocaust Memorial Day Act, SBC 2000, c 3, Holocaust Memorial Day Act, SC 2003, c. 24, Sri Lankan Canadian Action Coalition v Ontario (Attorney General), 2022 ONSC 1675, Canadian Western Bank v Alberta, 2007 SCC 22, Constitution Act, 1867: Reference re An Act respecting First Nations, Inuit, and Métis children, youth and families, 2024 SCC 5, Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, Québec (Attorney General) v Canada (Attorney General), 2015 SCC 14, RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, Reference re Genetic Non-Discrimination Act, 2020 SCC 17, Kitkatla Band v British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, Chatterjee v Ontario (Attorney General), 2009 SCC 19, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, Housen v Nikolaisen, 2002 SCC 33, Reference re Securities Act, 2011 SCC 66, Murray-Hall v Québec (Attorney General), 2023 SCC 10, Motors of Canada Ltd. v City National Leasing, [1989] 1 S.C.R. 641, Reference re Validity of the Combines Investigation Act and of s. 498 of the Criminal Code, [1929] SCR. 409, Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13, Ontario English Catholic Teachers' Assn. v. Ontario (Attorney General), 2001 SCC 15, Adler v Ontario, [1996] 3 SCR 609, Public School Boards' Assn of Alberta v Alberta (Attorney General), 2000 SCC 45, Schneider v The Queen, [1982] 2 SCR 112, R v Hydro-Québec, [1997] 3 SCR 213, Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, R v Crown Zellerbach Canada Ltd., [1988] 1 SCR 401, Switzman v Elbling and AG of Quebec, [1957] SCR 285, Reference Re Alberta Statutes, [1938] SCR 100, Canada (Prime Minister) v Khadr, 2010 SCC 3, Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, Canadian Broadcasting Corp. v Canada (Attorney General), 2011 SCC 2, R v Sharma, 2022 SCC 39, Poorkid Investments Inc. v Ontario (Solicitor General), 2023 ONCA 172, Eldridge v British Columbia (Attorney General), [1997] 3 S.C.R. 624, Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69, Bracken v Niagara Parks Police, 2018 ONCA 261, Harper v Canada (Attorney General), 2004 SCC 33, Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31, Figueiras v Toronto (Police Services Board), 2015 ONCA 208, Thomas Christian Zaugg v Ontario (Attorney General), 2019 ONSC 2483, Toronto (City) v Ontario (Attorney General), 2019 ONCA 732

facts:

This appeal arose from a constitutional challenge to the validity of the Tamil Genocide Education Week Act, 2021, SO 2021, c. 11 (the "TGEWA" or "Act").

The Act's preamble purports to recognize that the Sri Lankan state perpetrated a genocide against the Tamils leading up to and during the Sri Lankan Civil War. The Act's operative provisions proclaim the week ending May 18 (the date in 2009 on which the civil war ended) as "Tamil Genocide Education Week", and encourages Ontarians to "educate themselves about, and to maintain their awareness of, the Tamil genocide and other genocides that have occurred in world history" each year during that week.

The appellants, Sri Lankan Canadian Action Coalition and Sri Lanka Canada Association of Brampton (collectively, the "Coalition Appellants"), are community organizations that advocate for the interests of Sinhalese Ontarians. The appellant, N. Hewage is an Adjunct Professor and Research Fellow at the International Centre for Interdisciplinary Research in Law at Laurentian University and a member of Ontario's Sinhalese community. The Coalition Appellants and professor Hewage oppose the TGEWA, disputing its factual predicates with concerns that it further marginalizes Ontario's small Sinhalese community. Before the Act was enacted, the appellants sought to have their perspectives included and following the Act receiving royal assent, they applied for a declaration of constitutional invalidity. They argued that the TGEWA is ultra vires Ontario and infringes their rights under ss. 2(b) and 15(1) of the Canadian Charter of Rights and Freedoms.

The respondent, Attorney General of Ontario ("Ontario"), and the interveners, the National Council of Canadian Tamils, the Canadian Tamil Academy, the Canadian Tamil Youth Alliance (collectively, the "Tamil Canadian Coalition") and the Tamil Rights Group sought to uphold the TGEWA. Collectively, they argued that the Act constitutes a valid exercise of provincial power that neither suppresses the appellants' expression nor discriminates against them. Ontario and the Tamil Canadian Coalition argued that the TGEWA advances the substantive equality of Tamil-Ontarians, who have suffered from intergenerational trauma and stigma in the wake of the Sri Lankan Civil War.

The application judge upheld the TGEWA, finding that the Act has an educative purpose that falls within s. 93 of the Constitution Act, 1867 and does not infringe the appellants' right to free expression and equality.

On this appeal, the appellants submitted that the application judge mischaracterized the purpose of the Act, which is to recognize and declare a genocide, which they argued is reserved for Parliament. Additionally, professor Hewage contended that the application judge erred in holding that TGEWA does not breach their right to free expression and equality.

issues:

1. Is the TGEWA intra vires Ontario?

2. Does the TGEWA breach s. 2(b) of the Charter?

3. Does the TGEWA breach s. 15(1) of the Charter?

holding:

Appeal dismissed.

reasoning:

1. Yes.

The Court agreed with the application judge that the TGEWA is intra vires Ontario, but disagreed with the application judge's characterization of the Act's pith and substance as "educative."

The Court held that, in keeping with Vavilov, questions concerning division of power, are questions of law and thus attract a correction standard of review. The Court found that the application judge erred in characterizing TGEWA's pith and substance by failing to keep characterization and classification of the analysis distinct and to characterize the law with sufficient precision. The Court outlined that the characterization and classification stages must be kept distinct and should not describe the pith and substance too generally.

The Court then conducted the characterization exercise afresh with reference to the governing principles, the intrinsic and extrinsic evidence, and the TWEGA's effects. After doing so, the Court held that the Act's dominant purpose was "to affirm and commemorate the Tamil Ontarian community's experience of the Sri Lankan Civil War and thus promote, within Ontario, the values of human rights, diversity and multiculturalism". The Court concluded that this purpose was a valid exercise of the province's power over matters of a merely local or private nature in the province under s. 92(16) of the Constitution Act, 1867.

2. No.

The Court held that the TGEWA does not suppress or compel expression, nor is its purpose, dominant or otherwise, to infringe the appellants' freedom of expression.

The appellants each submitted that the application judge erred in her s. 2(b) analysis, but they differed in the type of infringement they asserted. Professor Hewage asserted that the Act's purpose was to limit his freedom of expression, because in his view, the TGEWA's purpose was to dictate how people understand the Sri Lankan Civil War and to limit dissent from the government's preferred characterization of the conflict as a "genocide." The Coalition Appellants, on the other hand, argued that the TGEWA has the effect of infringing s. 2(b) by effectively shutting down the marketplace of ideas of any dissent that Tamil genocide had occurred.

The Court outlined that there are different considerations depending on whether a claimant alleges that the purpose of the government action is to infringe their free of expression or whether they allege that it has that effect. The Court noted that the Act's text contains no provisions prohibiting or penalizing the form, content of, or access to, the appellants' messaging, nor is there anything in the legislative debate which suggested that the Legislature intended for the Act to be used to prohibit dissent. The Court held that the TGEWA imposes no deprivation on the appellants that diminishes the reach or force – or any other metric of effectiveness – of their messaging.

3. No.

The Court agreed with the application judge's finding that the TGEWA does not infringe the appellants' equality rights.

In order to establish a s. 15(1) breach, the claimant must demonstrate that the impugned state law or action: (i) creates a distinction based on an enumerated or analogous grounds, either on its face or in its impact, and (ii) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.

Professor Hewage argued that by indicating that the Sri Lankan state's actions in furtherance of the alleged genocide were "Sinhala-Buddhist centric", the Act impliedly lay blame for the genocide at the feet of all Sinhala-Buddhists.

The Court rejected this submission, noting that the impugned portions of the TGEWA's preamble stated that the Sri Lankan government's allegedly genocidal policies were "Sinhala-Buddhist centric", not that Sinhala-Buddhists are, as a racial group, collectively responsible for them. Further, the Court agreed with the application judge that the TGEWA has no discriminatory impact.

The Court held that the Act does not draw an adverse distinction cognizable under s. 15(1). The Court clarified that anyone who cites the TGEWA to marginalize Sinhalese Ontarians, as perpetrators or supporters of the "Tamil Genocide" or otherwise, does so in error.

Manjunath v. Kuppa, 2024 ONCA 668

[Pepall, Miller and Wilson JJ.A]

Counsel:

No one appearing for the appellant

D. Sherr, for the respondent

Keywords: Family Law, Domestic Contracts, Separation Agreements, Civil Procedure, Disclosure, Orders, Enforcement, Striking Pleadings, Family Law Rules, O. Reg. 114/99, rr. 1(8)(c), 1(8.4), 2(2) and (3), Purcaru v. Purcaru, 2010 ONCA 92, Marcoccia v. Marcoccia, 2008 ONCA 866, Kovachis v. Kovachis, 2013 ONCA 663, Mullin v. Sherlock, 2018 ONCA 1063

facts:

The appellant husband and the respondent wife were married on March 13, 1992. On August 9, 2011, the respondent signed an agreement which is stated to be a separation agreement. The respondent alleges that she was misled and coerced into signing the document which purports to waive all equalization and support claims. According to the respondent, the parties continued to live together as a married couple until 2018. The appellant says they separated in 2011. In 2015, the appellant asked the respondent to leave the jointly owned home, which she did. Later in 2018, because of alleged threats by the appellant, she transferred her interest in the home to the appellant for $1 but continued to remain liable on the indebtedness of $1,600,000 secured against the home.

During the proceedings the appellant had a history of delays, disregard for court orders, and non-disclosure. Apart from some very modest payments, the appellant failed to pay spousal support. He repeatedly ignored orders to make financial disclosure. On August 12, 2021, the respondent's first motion to strike the appellant's pleadings was heard. The motion judge found the respondent's failure to comply with court orders to be wilful, but gave him one last chance to comply, warning him that he would likely see his pleadings struck if he failed to comply. At the encouragement of the appellant, and unbeknownst to the respondent, the purported mortgagees on the matrimonial home, M. and S. (who were friends of the appellant), sold the matrimonial home under power of sale proceedings. The results of an order for disclosure obtained by the respondent revealed that the proceeds of sale were paid to the appellant. Despite court orders that the appellant and the purported mortgagees pay the proceeds into court and make disclosure, non-compliance persisted. The motion judge was satisfied that the appellant and the two purported mortgagees had breached the court order to pay the approximately $1.6 million in sale proceeds into court. The motion judge found that the breaches of court orders continued to the date of the application. The judge therefore ordered the pleadings struck and permitted the respondent to proceed to an uncontested trial without notice to the appellant or to M. and S.

issues:

1. Did the motion judge fail to consider and apply the principle that striking pleadings is an instrument of last resort?
2. Did the motion judge err in failing to decide that the respondent bore the onus of proving that the validity and enforceability of the separation agreement should have been determined before striking out the appellant's pleadings?

holding:

Appeal dismissed.

reasoning:

1. No

The Court held that the appellant's argument had no traction in this case. The motion judge expressly recognized that striking a party's pleadings is reserved for exceptional cases where no lesser remedy will redress the party's failure to comply with court order(s). Rule 1(8) of the Family Law Rules explicitly provides direction to the court on the types of orders that may be made when a person fails to obey an order.

The Court noted that in Mullin v. Sherlock, it had established a decision-making framework for assessing whether pleadings should be struck. This framework includes consideration of the relevance of the non-disclosure, the context and complexity of the issues in dispute, the extensiveness of existing disclosure, the seriousness of the efforts made to disclose, and any other relevant factors. The Court held the motion judge followed this framework.

2. No

The Court held again that the appellant's argument had no basis. The motion judge expressly noted that the issue of the validity of the separation agreement was not before him and that he was making "no comment or determination of that issue". Rule 1(8)(c) of the Family Law Rules, which provides that the court may deal with the failure to obey a prior order by striking any document(s) filed by the party, clearly makes the remedy available without any determination of the merits of the case. This is clear from the consequences of a strike motion which are described in r. 1(8.4). It establishes that if an order is made striking out a party's document(s), that party is automatically not entitled to further notice of steps in the case or to participate in the case in any way. The court may deal with the case in the party's absence and a date may be set for an uncontested trial of the case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.