Granted

Constitutional/Aboriginal Law: s. 15; Residency

Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5 (39856)
The Applicant, Cindy Dickson, was a member of the Respondent Vuntut Gwitchin First Nation (“VGFN”) in the Yukon; she resided in Whitehorse, for family medical reasons and other socio‑economic reasons. Ms. Dickson sought to stand for election to the Council of the VGFN. The VGFN constitution specified any Councillor must reside on Settlement Land, approximately 800 km away (the “residency requirement”); it also stated any successful candidate for Chief or Councillor who does not already reside on Settlement Land must relocate there within 14 days of election day. Given Ms. Dickson’s unwillingness to move, the VGFN rejected Ms. Dickson’s candidacy. Ms. Dickson sought a declaration in court the residency requirement breached her right to equality protected under s. 15(1) of the Charter. The chambers judge issued several declarations, concluding while the Charter applies to the VGFN and to the residency requirement in the VGFN constitution, the residency requirement itself does not infringe s. 15(1). However, the time limit for relocation — “within 14 days” — infringed s.15(1), and should be declared to be of no force and effect (the declaration was suspended for 18 months). Alternatively, if this was incorrect and the residency requirement does infringe s. 15(1), the judge concluded that s. 25 of the Charter would apply to “shield” the residency requirement (still without the time limit) from review. The YK C.A. allowed both Ms. Dickson’s appeal and the VGFN’s cross‑appeal. It found the chambers judge erred in presumptively concluding there was no s. 15(1) infringement and severance of the time limit could save the requirement; rather, it concluded, subject to any justification under s. 1 of the Charter, the residency requirement as a whole (with or without the time limit) does infringe s. 15(1). However, the YK C.A. also concluded, if there were an unjustified breach of s. 15(1), s. 25 of the Charter would shield the residency requirement from challenge. A majority of the YK C.A. issued a number of declarations to that effect. “The application for leave to appeal and the conditional application for leave to cross-appeal…are granted.”
 

Securities: Pump & Dump; Jurisdiction

Langford-Sharp, et al. v. Autorité des marchés financiers, et al., 2021 QCCA 1364 (39920)
The Respondent (AMF) brought an action before the Québec Financial Markets Administrative Tribunal (FMAT) alleging the Applicants participated in a transnational pump and dump scheme by improperly influencing or manipulating the price of a stock in contravention of the Québec Securities Act. According to the AMF, the Applicants, who are residents of B.C., made financial transactions through offshore companies incorporated in several countries with bank accounts in Europe. AMF alleged they acted in concert to acquire the shares of a Nevada company (Solo), give it a legitimate face and promote its business for the purpose of fraudulently increasing the value of its shares and then selling them for a profit, for distribution among themselves. Solo’s shares are traded on an over‑the‑counter market in New York. The AMF alleged that at all material times, Solo was under the direction of a Québec resident and was a reporting issuer in Québec with a business address in Montreal. It also alleged the misleading press releases and promotional materials, a portion of which originated in Montreal, were accessible to Québec residents and approximately fifteen investors in Québec lost a total of $5K as a result of the activities. AMF’s action sought to have the FMAT order the Applicants to cease any activity in respect of a transaction in securities; prohibit them from acting as directors or officers of an issuer, dealer, adviser or investment fund manager for five years; and impose administrative penalties on them, all pursuant to ss. 265, 273.3, 195.2, 199.1(1) and 273.1 of the Securities Act. The Applicants brought preliminary motions for declinatory exceptions arguing the FMAT was without jurisdiction. The FMAT denied the Applicants’ motions and confirmed its jurisdiction to hear the action: 2017 QCTMF 114 (CanLII). The Qué. Superior Court dismissed the application for J.R., and the Qué. C.A. dismissed the appeal. “The applications for leave to appeal…are granted with costs in the cause.”

Dismissed

Arbitration: Award Enforcement

Broccolini Construction Inc. / Construction Broccolini inc. v. Lambert Somec inc., 2021 QCCA 1621 (40003)
An arbitration award was issued with regard to claims made by the Respondent, Lambert Somec inc. (“LSI”), against the Applicant, Broccolini Construction Inc./Construction Broccolini inc. (“BCI”), a general contractor. LSI applied for the homologation of the arbitration award, while BCI sought to have it annulled, alleging a breach of the rules of natural justice. The Superior Court allowed the application to homologate the arbitration award and dismissed the application to annul the award. In its view, the decisions made by the arbitrator and the references to certain documents in the award were not breaches of the rules of natural justice. The Qué. C.A. dismissed the motion for leave to appeal, finding that the questions raised did not go sufficiently beyond the parties’ sole interests. “The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation/Construction Law: Motions to Dismiss

Blenda Construction Inc., et al. v. Association de la construction du Québec (ACQ), et al., 2021 QCCA 1137 (39873)
The Respondents, Association de la construction du Québec, Corporation of Master Pipe‑Mechanics of Québec, Corporation of Master Electricians of Québec and Bureau des soumissions déposées du Québec (“BSDQ”) (collectively referred to as “ACQ”), are non‑profit bodies whose functions include ensuring compliance with the rules in the BSDQ’s Code de soumission (“Code”), the purpose of which is to improve competition in the construction industry. Any contractor that wishes to participate in a bid process governed by the BSDQ must undertake by contract to comply with the Code. The Applicants, Blenda Construction Inc. and Edica Group Inc., made such an undertaking. In January 2020, the ACQ’s professional practice and discipline committee rendered four decisions in which it found the Applicants had contravened the Code. In February 2020, the Applicants were notified by letter of the committee’s findings and of the claim against them for $56K in penalties. They appealed to the ACQ’s discipline appeal board, which upheld the findings and the resulting claim for penalties. After receiving the May 2020 letter setting out the appeal board’s ruling, the Applicants decided to contest the decisions by filing an application for a declaratory judgment in the Superior Court. In response, the ACQ applied to dismiss that application. In August 2020, the ACQ filed an originating application against the Applicants in the Court of Québec in order to claim payment of the penalties. The Applicants responded by applying for a stay of proceedings until final judgment had been rendered on the application to dismiss in the proceeding brought in the Superior Court. The Superior Court allowed the application to dismiss and dismissed the originating application for a declaratory judgment. The Qué. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs to the respondents.”
 

Civil Litigation: Motions to Strike

Government of Nunavut v. Jane Doe (G.E.B. #51), 2021 NUCA 15 (39928)
The Respondent brought an action against the Hamlet of Pangnirtung, and the Government of Nunavut for damages for the sexual harassment she experienced while employed by the Hamlet from May to August 2018. The alleged perpetrator was alleged to have made highly sexualized, inappropriate comments to the Respondent and to have terminated her employment when she refused to engage in a sexual relationship with him. The Government of Nunavut brought a motion to strike the Respondent’s statement of claim pursuant to Rule 129(1) of the Rules of Court, arguing it disclosed no cause of action as against it, was frivolous, vexatious, and an abuse of process. That motion was dismissed. This decision was upheld on appeal. “The application for leave to appeal…is dismissed.”
 

Civil Litigation: Motions to Dismiss

Labit v. Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST), 2021 QCCA 1475 (39965)
Since November 2018, the Applicant had received benefits from Indemnisation des victimes d’actes criminels (“IVAC”), which falls under the jurisdiction of the Respondent, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (“CNESST”). Believing her complete file had been unlawfully given to her former spouse’s lawyer in the course of divorce proceedings, the Applicant claimed $177,684.67 in damages from IVAC. The CNESST brought an application to dismiss, relying on the relative immunity provided for in s. 161 of the Act respecting occupational health and safety. The Superior Court granted CNESST’s application to dismiss the Applicant’s originating application for damages and to declare it abusive, and dismissed the originating application. It found IVAC’s representative had been acting in the exercise of her functions when she appeared at the hearing and she had provided the documents requested in the subpoena served on IVAC. In addition, the allegations were insufficient for a finding of bad faith. The action was therefore unfounded, as it had no chance of success given the relative immunity provided for in s. 161 for the officer who had done the impugned act in good faith in the exercise of her functions. The Qué. C.A. dismissed the motion for leave to appeal. “The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation: Motions to Strike

Zi An Wang v. Lee, et al., 2021 BCCA 370 (39967)
The Applicant sued Mr. Lee and his law firm. Mr. Lee had represented the Applicant’s former employees in an adverse capacity to the Applicant. The Respondents’ application to strike the Applicant’s statement of claim was granted. The B.C.C.A. dismissed the Applicant’s application for an extension of time to appeal. “The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation: Motions to Strike

Zi An Wang v. Lee, et al.,  2021 BCCA (39968)
Similar summary to that immediately above. “The application for leave to appeal…is dismissed with costs.”
 

Civil Litigation: Setting Aside Noting in Default

Wang, et al. v. Mattamy Corporation, et al., 2021 ONCA (40017)
Wen Wang and Wei Li failed to close an Agreement of Purchase and Sale for a home and commenced an action. A Master of the Ontario Superior Court granted the defendants’ motion setting aside a noting in default, stayed the action in favour of arbitration, and granted an adjournment. The Ontario Divisional Court denied an extension of time to file an appeal and dismissed a motion for review. The Ont. C.A. denied leave to appeal. “The application for leave to appeal…is dismissed with costs in accordance with the tariff of fees and disbursements set out in Schedule B of the Rules of the Supreme Court of Canada.”
 

Contracts/Corporate Law: Inducement to Terminate Employment

Khader, et al. v. SNC-Lavalin Inc., 2021 QCCA 1296 (39891)
The Applicants Yahya Khader, Ibrahim L. Khader and George Daher were employees of the Saudi company Zuhair Fayez Partnership (“ZFP”). They established the Industrial Division therein, allowing ZFP to engage in various industrial engineering projects in Saudi Arabia. The Applicants and ZFP agreed on various compensation arrangements with a view to sharing the profits generated by the Industrial Division or its value, including in the event it were to be transferred in whole or in part to a third party. In January 2010, ZFP and the Respondent SNC‑Lavalin Inc. (“SNC”) agreed to pool their resources and establish Newco, a company of which they would be the shareholders and which would allow them to do business with a major client in Saudi Arabia. In April 2010, ZFP entered into a new compensation agreement with the Applicants, entitled “Management Compensation Agreement” (“MCA”). In November 2011, following several disagreements, ZFP dismissed the Applicants on various grounds and unilaterally terminated all their contracts, including the MCA. In June 2012, ZFP and SNC finalized their agreement and signed a “Shareholders’ Agreement” providing for the creation of Newco. The Applicants instituted proceedings before the courts, claiming SNC induced ZFP to terminate their employment, and seeking damages in the amount of $33,194,961.22 from SNC on the basis of extra‑contractual fault. The Superior Court dismissed the Applicants’ action and declared it be manifestly unfounded and abusive. The Qué. C.A. granted their application to adduce indispensable new evidence regarding three Saudi judgments that confirmed the unlawful termination of the worker contract, but dismissed their appeal. “The application for leave to appeal…is dismissed with costs.”
 

Contracts: Repudiation

Kaban Resources Inc. v. Goldcorp Inc., et al., 2021 BCCA 427 (39940)
The Applicant purchaser and the Respondent vendors entered into a letter agreement for the purchase of an undeveloped gold‑silver mine in Guatemala. After having difficulty satisfying its obligation to obtain financing, the Applicant informed the Respondents it had entered into an agreement with a third party. Subject to the Respondents’ consent, the third party would provide financing in exchange for control of the purchaser, participation in the project and other terms and conditions. When the Respondents rejected the proposed terms, the Applicant treated it as a repudiation of the original agreement and filed a notice of civil claim against the Respondents. The Respondents applied for dismissal of the claim. The B.C.S.C. granted the Respondents’ application and dismissed the Applicant’s claim. The B.C.C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”
 

Copyright: Motions to Strike

Walcott v. Toronto Transit Commission, 2021 ONCA 358 (39992)
The Applicant wrote the Respondent in 1994, offering to create a bus and subway route map guide. The TTC declined, stating such a guide was already available to its passengers. In 1996, the appellant was concerned about the TTC route maps appearing in the Yellow Pages Directory. The TTC responded those route maps had been internally generated, were not based on the Applicant’s proposed guide, and had been available for years. After obtaining a Certificate of Registration for a guide from the United States Copyright Office, the Applicant commenced an action, taking the position by obtaining the Certificate he became the only legal source for publication of transit routes and schedules in Canada, the U.S., and worldwide. The Applicant brought a motion for summary judgment seeking damages of $2M from the TTC. The TTC brought a cross‑motion to dismiss the claim. The Ontario Superior Court of Justice dismissed the Applicant’s motion for summary judgment, granted the Respondent’s cross‑motion to dismiss the claim, and dismissed the claim. The motions judge found no evidence of any original expression in the Applicant’s maps and no evidentiary basis to support the Applicant’s claim of copyright; there was also no evidence the TCC had used or adapted the Applicant’s maps; even if he had copyright in the guide, the scope of copyright would not preclude the TTC from publishing route maps or transit information, and there would have been no copyright infringement. The Ont. C.A. dismissed the appeal. “The application for leave to appeal…is dismissed with costs.”
 

Criminal Law: Prior Consistent Statements

J.P. v. R., 2021 ONCA 564 (40020)
There is a publication ban in this case, in the context of prior consistent statements re assault allegations. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed.”
 

Criminal Law: Sentencing

Charrière v. R., 2021 QCCA 1338 (39913)
The Applicant, Olivier Charrière, incorporated Les Élévateurs de la Rive‑Nord 2008 inc., a company involved in the drying, storage and trade of grain. As part of his business activities, Mr. Charrière received grain from various producers. Following a complaint by one producer, the police initiated an investigation and Mr. Charrière was charged with theft and fraud. He brought a motion in which he asked certain counts be divided up and detailed. The counts were then divided into nine counts. Following a trial by judge and jury, Mr. Charrière was convicted of two of the nine counts: one count of theft of grain with a value of more than $5K pursuant to s. 334(a), and one count of fraud over $5K pursuant to s. 380(1)(a). The Qué. Superior Court sentenced Mr. Charrière to two unconditional terms of imprisonment to be served concurrently: 20 months on the count of theft and 36 months on the count of fraud. The Qué. C.A. unanimously dismissed the appeal from the verdicts and allowed the appeal from the sentence; it reduced the sentence by replacing the unconditional period of imprisonment with a conditional sentence of two years less a day to be served in the community. “The application for leave to appeal…is dismissed.”
 

Defamation: Anti-SLAPP Litigation

Warner v. Hobbs, et al, 2021 BCCA 290 (39922)
Kipling Warner was an employee of Vanbex Group Inc. for two months in 2016. Kevin Hobbs and Lisa Cheng are Vanbex’s officers, directors and major shareholders. In 2017, Mr. Warner sent an email to a member of the Vancouver Police Department expressing his suspicion Mr. Hobbs was using Vanbex for criminal purposes. When he learned the Vancouver Police were not continuing its investigation, he submitted an online tip to the British Columbia Securities Commission regarding Vanbex and Mr. Hobbs. He also reported his concerns to the RCMP. The Director of Civil Forfeiture pursued the matter. Shortly after an ex parte preservation order was granted, the matter began to appear in the news. Mr. Hobbs and Ms. Cheng commenced this proceeding, alleging Mr. Warner’s statements to the authorities were false and they had caused or were a significant contributing cause to the initiation of the CF action, which had caused them harm. Before he filed his defence, Mr. Warner brought an application to dismiss the claim under s. 4 of the Protection of Public Participation Act (“PPPA”), anti-SLAPP” legislation. The chambers judge allowed the application under the PPPA and dismissed the defamation action. The B.C.C.A. allowed the appeal. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs.”
 

Family Law: “Indispensable New Evidence”

L.S. v. E.P., 2021 QCCA 622 (39936)
There is a publication ban on the party, in the context of a dismissed application to present “Indispensable new evidence” in family law litigation. “The application for leave to appeal…is dismissed.”
 

Family Law: Prerogative Relief

Richardson v Richardson, 2021 SKCA 58 (39960)
The parties had been involved in ongoing family proceedings. There have been numerous orders issued below including a chambers decision of the Saskatchewan Court of Queen’s Bench, dated July 23, 2020 and December 11, 2020. The Applicant did not file an appeal of the July decision and a motion for an extension of time to do so was eventually dismissed. The Applicant filed a notice of appeal of the December decision but never perfected the appeal. Instead of perfecting the appeal, in February 2021, the Applicant filed two applications styled as being in relation to his appeal but entitled “Motion for a Writ of Certiorari” and “Ex parte Motion for Writ of Mandamus and Prohibition”. The Sask. C.A. described them as “preliminary to an appeal from a chambers decision of a judge of the Court of Queen’s Bench dated December 11, 2020”. Both applications were dismissed by a single judge of the Sask. C.A. The Applicant appealed that order to a panel of three judges, which was also dismissed. “The miscellaneous motion is dismissed. The application for leave to appeal…is dismissed.”
 

Labour Law: Bargaining Unit Membership

FIQ – Syndicat des professionnelles en soins de l’Est-de-l’Île-de-Montréal v. Centre intégré universitaire de santé et de services sociaux de l’Est-de-l’Île-de-Montréal, et al., 2021 QCCA 1096 (39966)   2021 QCCA 1096 (39966)
In 2016 and 2017, Québec’s Administrative Labour Tribunal (“ALT”) allowed four applications for J.R. in two administrative decisions in which it declared certain groups of nursing professionals working at a number of hospitals through private agencies were employees within the meaning of the Labour Code, and were therefore included in the Applicant union’s bargaining unit. According to the ALT’s interpretation, once an establishment is the sole care provider under the institutional framework established by statute, it assigns and oversees the work of the nursing professionals and, as a result, can only be their one true employer. The Superior Court set aside the decisions on the ground they were unreasonable, and the Qué. C.A. upheld that conclusion. In the Qué. C.A.’s view, the ALT’s decision was unreasonable because its conclusions could not reasonably be supported by the legal framework invoked. “The motion for an extension of time to serve and file the application for leave to appeal is granted. The application for leave to appeal…is dismissed with costs to the respondents.”
 

Landlord & Tenant: Bedbugs

Kurdina v. Toronto Community Housing Corporation, 2021 ONCA (40005)
The Applicant, Ms. Kurdina, was a resident in a rental unit owned by the Respondent, Toronto Community Housing Corporation (“TCHC”). In 2017-2018, parts of the building in which Ms. Kurdina lived were infested with bedbugs. In response, TCHC completed corrective pest control treatments. In 2018, Ms. Kurdina applied to the Landlord and Tenant Board (“LTB”) for an order stating TCHC had failed to meet the landlord’s maintenance obligations under s. 20 of the Residential Tenancies Act and requested approximately $1.6K in compensation for expenses she claimed were related to remedying a bedbug infestation in her unit. The LTB found TCHC had responded to Ms. Kurdina’s complaints and had treated the building for bedbugs in a timely manner, and dismissed the application. The LTB also dismissed Ms. Kurdina’s subsequent application for review of the initial order. The Superior Court of Justice Divisional Court dismissed Ms. Kurdina’s motion to admit fresh evidence and dismissed her appeal of the review order. The Ont. C.A. dismissed Ms. Kurdina’s motion for leave to appeal, without reasons. “The application for leave to appeal…is dismissed with costs.”
 

Landlord & Tenant: Termination

Watts v. Mountain Country Property Management Ltd., 2021 BCCA 426 (40014)
Mr. Watts failed to pay rent due under a residential lease and was served with a notice of termination. His application to the Residential Tenancy Branch for relief was dismissed and an application to the Residential Tenancy Branch for review was dismissed. The B.C.S.C. dismissed an application for J.R. The B.C.C.A. dismissed an appeal. “The application for leave to appeal…is dismissed.”
 

Securities: Alleged Insider Trading

Mallat, et al. v. Autorité des marchés financiers de France, et al., 2021 QCCA 1102 (39859)
In February 2014, the Respondent Autorité des marchés financiers de France (AMFF) decided to initiate an investigation in France concerning the financial information and market for the stock of Ubisoft Entertainment S.A. (Ubisoft France) because of transactions involving the sale of shares by employees of its Canadian subsidiary (Ubisoft Canada) prior to an announcement on October 15, 2013 the release of a game was being postponed, alleged insider trading. Under the OICV‑IOSCO Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information, the AMFF sent a request for assistance to the Respondent and Applicant on cross‑appeal, the Autorité des marchés financiers of the province of Québec (AMF), in order to obtain the complete mailboxes of Ubisoft Canada employees, including the Applicants and Respondents on cross‑appeal, Mr. Mallat, Mr. Paris and Mr. Baillet. Further to that request, the AMF opened an investigation file and, by summons in March 2014, required Ubisoft Canada to provide information and documents concerning the Applicants. Those documents were sent to the AMFF in France through Ubisoft France. After the Applicants refused to meet voluntarily with the AMFF investigators, the AMF sent them a summons to appear for an examination at the AMF’s offices in October 2014, pursuant to the Securities Act. Following the examinations by the AMFF, the AMF, which had been present at them, gave the AMFF copies of the recording or transcript of the examinations, informed the Applicants of their fundamental rights, and then closed the file without taking any action against the Applicants. However, the AMFF continued the investigation in France. In December 2016, the AMFF’s Enforcement Committee imposed financial penalties on the Applicants. It also declared the examinations conducted in Québec with the AMF’s assistance to be null. In December 2016, the Applicants filed an application in the Superior Court against the AMF and the AMFF for [translation] “J.R., constitutional review and damages”. The Superior Court allowed the applications to dismiss filed by the AMF and the AMFF and dismissed the application for J.R., constitutional review and damages. The appeal against the AMFF was dismissed, and the appeal against the AMF was allowed in part. “The application for leave to appeal…is dismissed with costs to the respondents. The application for leave to cross-appeal filed by the respondent, Autorité des marchés financiers, is dismissed with costs to the applicants.”
 

Tax: Self-Reps

Pélissier, et al. v. Agence du revenu du Québec, 2021 QCCA 1330 (39907)
The Applicant spouses, Mr. Janvier and Ms. Pélissier, were the subject of a tax audit by the Respondent, the Agence du revenu du Québec (ARQ), under an anti‑tax evasion program. The Applicants jointly operated an intermediate resource for persons with intellectual disabilities and pervasive developmental disorders. They entered into a contract with the Centre de réadaptation en déficience intellectuelle et troubles envahissants de Montréal, from which they received a monthly payment for services rendered. As a result of the audit, the ARQ determined the Applicants had not reported the income derived from operating the intermediate resource, and found significant discrepancies between the Applicants’ lifestyle and their reported income. The ARQ adjusted the Applicants’ taxable reported income and their business income, and assessed them and imposed penalties for the 2009, 2010 and 2011 taxation years. The Applicants appealed the ARQ’s decision to the Court of Québec, which dismissed their respective appeals. The Applicants, who were not represented by a lawyer in the Court of Québec, were apparently assisted by an adviser, Mr. Alcindor, who was not a member of the legal profession, both in the preparation of documents to contest the notices of assessment and during the court hearing. In the Qué. C.A., the lawyer newly retained by the Applicants allegedly raised this situation, which he considered irregular, but did not include it in the appeal brief as a ground of appeal. The Qué. C.A. dismissed the appeals. “The application for leave to appeal…is dismissed with costs.”
 

Universities: Student Expulsion

Hrabovskyy v. University of Montreal, et al., 2021 QCCA 1607 (39972)
The Applicant, Mr. Hrabovskyy, was a student at the University of Montréal. In 2019, he was expelled by the University Disciplinary Committee for having violated the University Disciplinary Regulations. Shortly thereafter, Mr. Hrabovskyy filed a claim against the Respondents for damages totaling upwards of $385M and for other remedies. The Superior Court of Québec granted the Respondents’ motion to have Mr. Hrabovskyy declared a vexatious litigant, and dismissed his claim against the Respondents. The Qué. C.A. dismissed Mr. Hrabovskyy’s appeal. “The application for leave to appeal…is dismissed with costs to the respondents.”
 

Universities: Student Expulsion

Hrabovskyy v. Attorney General of Canada, 2021 QCCA 1615 (39973)
Similar summary to that immediately above. “The miscellaneous motion is dismissed. The application for leave to appeal…is dismissed with costs to the respondent.”