COURT FILE NO.: 31/04

DATE: 20040603

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MACFARLAND, HOWDEN AND LINHARES DE SOUSA JJ.

B E T W E E N:

RICHARD WARD

Applicant

• and -

JOHN MUTTON, PATTI L. BARRIE and THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON

Respondents

In Person

Jeffrey Dicker, for the Respondents

HEARD: June 3, 2004

MACFARLAND J.: (Orally)

1Mr. Ward seeks to appeal the decision of Scott J., wherein he held that the Court was without jurisdiction to hear Mr. Ward’s application brought under s.83(1) of the Municipal Elections Act. As he said:

“For reasons set out in Audziss v. Santa. A right of appeal lies to this Court from the decision of Scott J. under s.86 of the Municipal Elections Act.”

2In his application before Scott J., Mr. Ward sought, pursuant to s.83(1) of the Act an:

“Order that John Mutton be disqualified from the 2003 Clarington Election”

and an “…Order that Richard Ward, having finished second is entitled to the Office of Mayor”.

3The basis or grounds for the disqualification sought is Mr. Ward’s contention that Mr. Mutton violated the municipal election campaign financial requirements by accepting donations in excess of $750.00 from a single contributor. As the basis for his belief, Mr. Ward relies on the statement filed on Mr. Mutton’s behalf in respect of the 2000 municipal election. He says the contributions from 515476 Ontario Ltd., in the amount of $750.00, Coug’s Investments Ltd. in the amount of $750.00, from Lawrence Glen Holdings, in the amount of $750.00 and from Neil Acton, also for $750.00, are all from, in essence, the same person.

4He asserts the companies are “associated” as that term is defined under s.256 of the Income Tax Act, (which section is incorporated into s.72 of the Municipal Elections Act) and Mr. Acton is related as can be seen by the fact that his address is the same as that of the numbered company.

5Mr. Ward requested a compliance audit in respect of the 2000 election on the basis of his allegations and was out of time in so doing. Following the 2003 election, Mr. Ward again requested a compliance audit. His request was considered by council and refused. He then brought his application before Scott J. under s.83(1) where his sole basis for seeking disqualification of Mayor Mutton is the financial contributions of the four he says are related, both in the 2000 election and of those four, two of which made repeat contributions in relation to the 2003 election. He says that, in signing his affidavit and in particular par. 8 thereof, Mr. Mutton swore a false affidavit. Paragraph 8 of John Mutton’s affidavit sworn the 2nd of January, 2003, reads as follows:

“I am not disqualified from being elected to or holding office by reason of any violation of the election campaign financial requirements or violations for not filing the financial statement pursuant to the Municipal Elections Act 1996”.

6In our view, this case is governed by the decision of the Court of Appeal in Audziss v. Santa. Charron J.A., writing for the Court at paragraph 19 of the decision, stated as follows:

“The general right of an elector to contest the validity of an election set out in s.122 of the 1990 MEA, which was found by the Divisional Court in Rayside not to provide statutory authority for an elector to challenge a candidate’s campaign finances, has been carried over in s.83 of the MEA. The provisions relating to the compliance audit remain essentially the same. An elector who is entitled to vote in an election and believes on reasonable grounds that a candidate has contravened a provision of the MEA relating to election campaign finances may apply to the clerk of a municipality for a compliance audit of the candidate’s election campaign finances. The council or local board of a municipality may accept or reject the application. If the application is accepted and a compliance audit is conducted, the authority to commence legal proceedings against a candidate or official for any apparent contravention of the MEA relating to election campaign finances rests with council of the municipality under s.81(10). The only material distinction between the 1990 MEA and the current legislative scheme is that the 1990 MEA provided a right of appeal to the Commission from council’s rejection of the elector’s application. The Commission’s decision was then subject to judicial review. In the current legislative scheme, there is no Commission or right of appeal but the availability of judicial review in respect of council’s decision is nonetheless available. See MacPump Developments Ltd. v. Sarnia (City) (1994), 1994 3448 (ON CA), 20 O.R. (3d) 755 (C.A.) on the right to judicial review of a decision of a municipal council made in the exercise of a statutory power. Hence, from the elector’s point of view, the right to challenge a municipality official in respect of election campaign finances remains effectively the same. The elector can apply to the clerk of the municipality for a compliance audit and the rejection of his or her application is subject to judicial review.

In my view, the legislative scheme with respect to election campaign finances would be redundant, if not defeated, if a parallel private right to bring an application based on the same alleged contraventions were to be maintained under the general right to contest the validity of an election under s.83. The relief sought by the appellants on their application was no different than that available under the MEA had council chosen to conduct a compliance audit. Further, it is my view that s.44 of the Municipal Act does not provide a basis for bringing this application. It gives an elector the right to “commence an application … for a declaration that the office of a member of … council has become vacant in accordance with this Act.” None of the grounds relied on by the appellants for seeking such a declaration is contained in the Municipal Act.

For these reasons, I would conclude that the appellants had no standing to bring this application.”

7In result, Mr. Ward is without standing to move before this Court under s.83(1) for relief on the basis he asserts. His only remedy is to seek a compliance audit and if he is unsatisfied with the result of that request, to appeal to the Ontario Court of Justice under section 81(3.3), of the Municipal Elections Act, enacted since Audziss. The appeal is dismissed.

8While we have concluded that there was no merit in the appeal, in our view there is no basis on which to award costs on a substantial indemnity basis. We must fix costs in an amount we consider to be appropriate in all of the circumstances. While the nature of the matter before us was somewhat confusing in that it was styled as a judicial review when in reality it was an appeal, the matter was able to proceed in any event, without objection. Costs to the respondent fixed in the sum of $2,500.00, inclusive of GST and disbursements on a partial indemnity basis.

9The endorsement will read as follows: “For reasons given this day, the appeal is

dismissed. Costs to the respondent fixed in the sum of $2,500.00, inclusive of GST and disbursements.”

MACFARLAND J.

HOWDEN J.

LINHARES DE SOUSA J.

Date of Reasons for Judgment: June 3, 2004

Date of Release: June 16, 2004

COURT FILE NO.: 31/04

DATE: 20040603

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT