Michelle Thomarat

The Court of Appeal for Ontario issued supplementary reasons regarding the remedy and costs following its prior decision (2023 ONCA 139) which declared s. 37.10.1(2) of the Election Finances Act unconstitutional.

The appellants sought to invalidate additional provisions, including the definition of "political advertising," s. 37.0.1, s. 37.10.1(3)-(3.1), and s. 37.10.2.

The court declined this request, finding these provisions were not inextricably linked to the previously invalidated section and were not independently shown to infringe section 3 of the Canadian Charter of Rights and Freedoms.

The court also noted that the election period spending limits (s. 37.10.1(1)) were not challenged and remain in force.

No disposition was made as to costs, as the parties had reached an agreement.

This appeal concerned the constitutional validity of Ontario's third-party election spending limits, specifically the extension of the pre-writ restricted period from 6 to 12 months without increasing the spending cap.

The appellants argued this infringed the informational component of the right to vote under s. 3 of the Charter, which is not subject to the notwithstanding clause (s. 33).

The Court of Appeal found that while s. 33 was properly invoked, the extended spending restrictions were not "carefully tailored" and did not permit a "modest informational campaign," thereby infringing the s. 3 right to meaningful participation in the electoral process.

The infringement was not justified under s. 1 of the Charter.

The court declared the impugned provision invalid and suspended the declaration for 12 months.

This endorsement addresses the costs arising from a second Charter challenge to Ontario's election advertising spending restrictions (Bill 307), which the Attorney General successfully defended.

The Attorney General sought $580,652.54 in costs.

The Applicants argued against a costs award, citing the public importance of constitutional litigation and access to justice, and challenged the quantum of costs.

The court rejected the Applicants' access to justice argument, noting their financial capacity, and found the Attorney General's choice of external counsel and the work performed to be reasonable.

The court awarded the Attorney General $500,000 in all-inclusive costs, apportioned among the Applicant groups.

The applicants challenged the constitutionality of amendments to the Election Finances Act that imposed a 12-month pre-writ restricted spending period for third-party political advertising.

The government had previously enacted similar amendments that were struck down under section 2(b) of the Charter, but re-enacted them using the section 33 notwithstanding clause.

The applicants argued the amendments violated the right to vote under section 3 of the Charter, which is not subject to the notwithstanding clause.

The court dismissed the application, finding that the spending limits were carefully tailored to the egalitarian model of elections and did not infringe the right to meaningful participation in the electoral process.