The Conservative Party of Canada v. Trost, 2018 ONSC 2230

CITATION: The Conservative Party of Canada v. Trost, 2018 ONSC 2230

DIVISIONAL COURT FILE NO.: 514/17

DATE: 20180409

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

BRADLEY TROST

Applicant

– and –

THE CONSERVATIVE PARTY OF CANADA, DUSTIN VAN VUGT (as Executive Director of the Conservative Party of Canada), DAVID FILMON (as Chief Returning Officer), DAN NOWLAN (as Chair of the Leadership Election Organizing Committee), JAI BHATTI, STEWART BRADDICK, LOIS BROWN, GARY CLEMENT, DAVID CONNELLY, DIANE FINLEY, MARC-OLIVIER FORTIN, JULIE GAUDREAU, IRVING GERSTEIN, ROHIT GUPTA, LOYOLA HEARN, PETER HELLEY, MICHAEL LAUER, CHRIS LYDON, CAMERON MACKEEN, SAM MAGNUS, RICHARD PLAIN, NANCY STRAND, JOHN WALSH (as members of the Leadership Election Organizing Committee), and SCOTT LAMB (as President of the National Council of the Conservative Party of Canada)

Respondents

Andrea Gonsalves, Stephen Aylward, for the Applicant

Arthur Hamilton, Laurie Livingstone, for the Respondent, The Conservative Party of Canada

HEARD: March 23, 2018

Koehnen J.

[1] This motion brings into sharp relief the degree to which direct or indirect government action is required to support an application for judicial review. This court’s previous views on the issue are reflected in two apparently conflicting and irreconcilable lines of cases one of which favours the moving party, the other of which favours the respondent.

[2] The motion arises out of the 2017 leadership contest of the Conservative Party of Canada (the “CPC”), in which Bradley Trost, was a candidate. The CPC found his campaign liable for allegedly misusing a list of 250,000 CPC members and fined him $50,000.

[3] Mr. Trost seeks judicial review of that decision.

[4] The CPC brings this motion to quash Mr. Trost’s application for judicial review on three grounds:

(i) The Divisional Court lacks jurisdiction because judicial review is limited to state action and does not extend to private organizations like political parties.

(ii) Political parties do not have standing to be respondents to proceedings under the Judicial Review Procedure Act R.S.O. 1990, c. J. 1. (the “JRPA”)

(iii) The application is premature because Mr. Trost did not exhaust internal remedies within the CPC.

[5] For the reasons set out below I am referring the issue of whether the Divisional Court lacks jurisdiction because of the absence of state conduct to the panel scheduled to hear the judicial review in June, 2018. I have nevertheless analysed the issue in some detail in an effort to sharpen the focus of the issue on the hearing before the panel in June. I dismiss the balance of the motion.

I. The Test on a Motion to Quash

[6] The parties agree that an application for judicial review should only be quashed if it is plain and obvious that it cannot succeed: Adams v. Canada (Attorney General), 2011 ONSC 325 (Div. Ct.) at para. 18.

[7] However, with respect to the question of jurisdiction, Mr. Trost relies on McArthur v. Canada (A.G.), 2008 ONCA 392, 94 O.R. (3d) 19, at para. 92, aff’d 2010 SCC 62, [2010] 3 S.C.R. 585 and 2010 SCC 63, [2010] 3 SCR 626 which held that the “plain and obvious” test does not apply to jurisdictional questions. Either the court has jurisdiction or it does not. See also: General Accountants Association of Canada v. Canadian Public Accountability Board (2008), 2008 1536 (ON SCDC), 233 OAC 129 (Div. Ct.), at paras. 39 - 40; Schreiber v. Canada (Atty. Gen.) (2001), 2001 23999 (ON CA), 52 O.R. (3d) 577 at para. 15 (C. A.).

II. Factual Background

[8] On a motion to strike an application for judicial review I must assume the allegations in the application are at least capable of being proven: Haigh v College of Denturists, 2011 ONSC 2152 at para. 20. My reasons are therefore based on the allegations contained in the notice of application for judicial review which I summarize below.

[9] As a candidate in the leadership contest, Mr. Trost received a copy of the CPC membership list which contained the names and contact information of its approximately 250,000 members. In exchange, Mr. Trost agreed that he and his campaign would use the list solely for purposes of the leadership contest.

[10] In early June, 2017, it became apparent that the National Firearms Association had obtained a copy of the membership list and had used it to send promotional materials about the association to party members.

[11] It is common practice to “salt” the membership list given to each candidate in a leadership contest. Salting refers to the process of including several fictitious names at real addresses on the list provided to each candidate. Each candidate’s list contains different fictitious names which enables the party to trace the use of a membership list back to a particular candidate.

[12] On June 2, 2017, the CPC released a public statement acknowledging the leak and stating:

We have also identified the parties responsible for sharing the information, and will be taking disciplinary action against them.

[13] The statement was made before anyone in the Trost campaign had been notified of the allegations or had been asked to respond to them.

[14] After the CPC announced that it had determined responsibility for the leak, its Executive Director wrote to Mr. Trost’s campaign on June 3, 2017 asserting that he was conducting an inquiry into the leak. The Executive Director did not explain why he was conducting the investigation as opposed to the party’s Chief Returning Officer (the “CRO”) who was supposed to make such determinations under the rules governing the leadership contest. That point is of some importance to Mr. Trost because the Executive Director and his office had a copy of the Trost membership list. They were therefore also potential sources of the leak. In addition, the CRO was a neutral officer as opposed to the Executive Director who may have a potential political agenda opposed to that of a particular candidate.

[15] The June 3, 2017 email stated that the CPC suspected the Trost campaign was the source of the leak. It did not set out the case against the Trost campaign or disclose any evidence to support those suspicions.

[16] The Trost campaign responded by letter dated June 4, 2017 explaining that it had investigated thoroughly and had concluded that no one with access to the Trost list within the Trost campaign was responsible for the leak. The letter also noted that appropriate security measures were in place to protect against unauthorized disclosure and asked the Executive Director to release any evidence which led him to his conclusions.

[17] Parenthetically, Mr. Trost maintains his campaign took active measures to ensure that the list was kept secure. Access was restricted to a small number of trusted campaign workers who agreed to use the list only for purposes of the leadership contest. Paper printouts were kept in a specific location, monitored by a campaign volunteer while in use, stored in a locked cabinet when not in use, and destroyed after use. Mr. Trost did not have direct access to the list.

[18] The Trost campaign received no response to its letter of June 4, 2017. Instead, on June 9, 2017, the Trost campaign received another email from the Executive Director, stating that the Leadership Organizing Committee (“LEOC”) had concluded that the Trost campaign was responsible for the leak and had fined Mr. Trost $50,000. Neither the LEOC nor the Executive Director provided any reasons nor did they explain why the LEOC had made the decision instead of the CRO, as required by the CPC rules.

[19] Mr. Trost’s fundamental complaint on the application for judicial review is that the CPC failed to follow its own rules.

[20] Mr. Trost submits he was entitled to an impartial investigation by the CRO, a neutral officer tasked with the fair administration of the leadership contest. Instead, the Executive Director appears to have found Mr. Trost responsible before even informing him that he was a suspect, even though the Executive Director and his office were potential suspects for the leak. That decision was then rubber stamped by the LEOC.

[21] Although Mr. Trost had a formal right to appeal any decision of the CRO to the Dispute Resolution Appeals Committee (“DRAC”), this was not a decision of the CRO so that procedure was, strictly speaking, not available. Moreover, all members of DRAC were also members of LEOC and participated in the decision to hold Mr. Trost liable. As a result, submits Mr. Trost, members of DRAC would be ruling on an appeal from a decision in which they participated. That taints them with a reasonable apprehension of bias. These flaws, submits Mr. Trost, effectively deprived him of his right to an appeal process within the CPC.

III. Analysis

A. Is the Complaint Subject to Judicial Review?

[22] The CPC submits that judicial review is available only if the conduct being challenged involves direct or indirect governmental action and that Mr. Trost’s application must be struck because it does not involve such conduct.

[23] This raises a fundamental policy question in respect of which two conflicting lines of cases have emerged within the Divisional Court. The CPC relies on those cases which it says limit judicial review to state conduct. Mr. Trost relies on those cases that he says do not limit judicial review to state conduct.

(i) Cases Requiring State Conduct

[24] Section 2(1) of the JRPA sets out the relief that the Divisional Court can provide on an application for judicial review. It provides:

2(1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. R.S.O. 1990, c. J.1, s. 2 (1).

[25] In this proceeding, Mr. Trost seeks an order of the nature of mandamus or certiorari.

[26] The first case the CPC relies on is the decision of the Alberta Court of Appeal in Knox v. Conservative Party of Canada, 2007 ABCA 295 where party members contested the nomination process to nominate the party’s candidate in a particular riding. The objecting members had pursued an internal arbitration proceeding and now sought judicial review of the arbitral decision. The issue, as the Court of Appeal framed it was whether Mr. Knox’s challenge to the arbitral decision should proceed by way of review under the Alberta Arbitration Act or pursuant to the “public law remedy” of judicial review.

[27] The court began its analysis at para. 14 with the following description of judicial review:

“Judicial review is a feature of public law whereby the superior courts under s. 96 of the Constitution Act 1867 engage in surveillance of lower tribunals to ensure that the fundamentals of legality and jurisdiction are respected by those tribunals. The tribunals which are subject to judicial review are, for the most part, those which are court like in their nature, or administer a function for the benefit of the public on behalf of a level of government. Those which are empowered by legislation to supervise and regulate a trade, profession, industry or employment, those which are empowered by legislation to supervise an element of commerce, business, finance, property or legal rights for the benefit of the public generally, or which set standards for the benefit of the public may also be subject to judicial review. Issues of contractual or property rights as between individuals or as between individuals and organizations, are generally addressed through ordinary court processes at common law, or by statute through arbitration or alternative dispute resolution as agreed by the parties.”

[28] The CPC relies on the following analysis contained in Knox:

(a) Initially, judicial review was conducted through prerogative writs like certiorari and mandamus. These were exclusively public law remedies and were not available to supervise private decisions. In a similar vein, private law remedies like injunctions and declarations were not initially available on judicial review. Legislative reform like that contained in the JRPA changed that and made private law remedies like declarations and injunctions available on judicial review. The opposite, however, was not true. Prerogative writs did not become available for private disputes: at para. 16 - 17.

(b) The law had become confused because the private or public nature of certain tribunals became difficult to ascertain. In some instances later cases misapplied and misinterpreted earlier cases which led to decisions of private tribunals being subject to judicial review: at para 19, 24.

(c) A tribunal must be discharging public duties or exercising powers of a public nature in order to be subject to judicial review: at para. 25.

(d) Political parties are not subject to judicial review. They are given no public powers under the Canada Elections Act, S.C. 2000, c. 9. While it is true that the financial affairs of political parties are regulated, the mere fact that an organization is subject to public regulation, requires a license or permit, receives public money or must be registered, do not make it a public body subject to judicial review: at para. 26.

(e) Although political parties and other private organizations may not be subject to judicial review, they are subject to private law remedies. Members are entitled to enforce the rules of private organizations in accordance with their terms through private law remedies: at para. 27.

(f) Even where an organization does not provide an internal dispute resolution mechanism or rules of procedure, courts would probably be prepared to infer certain basic procedural protections and use their general jurisdiction to provide relief: at para. 30.

[29] In Adams v. Canada (Attorney General), 2011 ONSC 325 (Div. Ct.); aff’d, 2011 ONSC 7592 (Div. Ct.) Molloy J. adopted large parts of the reasoning in Knox. In that case Justice Molloy dealt with a motion to quash an application for judicial review from an arbitral decision of a sports organization. CPC highlights the following aspects of her analysis:

(a) The Divisional Court has no inherent jurisdiction. It is a creature of statute, limited to the powers conferred upon it by section 2 of the JRPA: at para. 22.

(b) Prerogative writs like mandamus and certiorari were limited to the control of state power: para. 40.

(c) There is no reason to interpret the JRPA as having changed the nature of those remedies when it conferred power on the Divisional Court to grant them. If anything, s. 2 (1) of the JRPA reinforces the need for state power to warrant judicial review. Section 2(1)2 provides that a declaration or an injunction may be given in relation to “the exercise, refusal to exercise or proposed or purported exercise of a statutory power.” That provision is significant because it expanded the court’s powers on judicial review. Until passage of the JRPA, injunctions and declarations were private remedies and were not available to restrain state power. As a result, it was necessary to specify in the JRPA that declarations and injunctions could be granted in respect of the exercise of a statutory power: para. 40

(d) It was not necessary to specify the need for state power in relation to the prerogative remedies referred to in s. 2(1)1 because those remedies were already limited to the exercise of state power. To have related prerogative remedies to state power in s. 2(1)1 would have been redundant and confusing: para. 40.

[30] The decision of Molloy J. was upheld by a full panel of the divisional Court: 2011 ONSC 7592. In upholding her decision, the panel did not address the requirement for the exercise of state power but found that what the applicant sought was, in substance, declaratory relief, which, pursuant to s. 2(1)2 of the JRPA, is only available where the judicial review relates to the exercise of a statutory power: paras. 15, 18, 19 and 21. The sports organization at issue in Adams did not exercise a statutory power as a result of which judicial review was not available.

[31] In addition to Knox and Adams, the CPC also relies on the decision of Pepall J. (as she then was) in Deeb v. Investment Industry Regulatory Organization of Canada, 2012 ONCA 1014 as an example of the degree to which state power is required for judicial review. In Deeb, the Investment Industry Regulatory Organization of Canada (“IIROC”) disciplined the Approved Person, Peter Deeb, of one of its members. Mr. Deeb sought judicial review. Pepall J. quashed the application because IIROC was not exercising any state power under section 2(1)1 or any statutory power under section 2(1)2 of the JRPA: at para. 28.

[32] Pepall J. noted that IIROC was not created by and did not derive its authority from statute. Rather, its disciplinary jurisdiction over Mr. Deeb flowed from the contractual commitment made on applying for membership or on registering as an Approved Person. This remained so even though the Ontario Securities Commission had recognized IIROC as a self-regulatory organization. Recognition by the Securities Commission did not make certiorari or other prerogative writs available. Any jurisdiction IIROC exercised over the applicant continued to be rooted in contractual power, not statutory power or other public authority: at para. 30.

(ii) Cases Not Requiring State Conduct

[33] Mr. Trost submits that most of the cases relied on by the CPC were decided before the Ontario Court of Appeal released its decision in Setia v. Appleby College, 2013 ONCA 753.

[34] In Setia, the Court of Appeal set out a number of factors to help determine whether decisions are public or private in nature. The former are subject to judicial review, the latter are not. The factors as set out in para. 34 of Setia are:

• the character of the matter for which review is sought;

• the nature of the decision-maker and its responsibilities;

• the extent to which a decision is founded in and shaped by law as opposed to private discretion;

• the body’s relationship to other statutory schemes or other parts of government;

• the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity;

• the suitability of public law remedies; the existence of a compulsory power;

• an “exceptional” category of cases where the conduct has attained a serious public dimension.

[35] These factors were originally developed by Stratas J.A. In Air Canada v. Toronto Port Authority, 2011 FCA 347 (F.C.A.). In developing the categories, Stratas J.A. noted at para. 60 that the factors are not to be treated as a mandatory checklist but that courts should weigh them to determine whether any one or combination of factors places the issue into the realm of public law.

[36] I will return to Setia and Air Canada later in these reasons.

[37] Mr. Trost relies upon a body of case law that weighs the factors in light of the issue at hand, regardless of whether the issue involves state conduct. These cases have used the factors to subject private organizations to judicial review where their functions or decisions were found to have an effect upon the public.

[38] The decision Mr. Trost relies on most heavily is that of Nordheimer J. (as he then was) in West Toronto United Football Club v. Ontario Soccer Association, 2014 ONSC 5881, 2014 ONS C 5881 where the court quashed a decision of the Protest Committee of the Ontario Soccer Association by way of judicial review.

[39] In doing so, Nordheimer J. recognized that relief by way of certiorari or mandamus does not require the exercise of a statutory power of decision. After setting out the factors from Setia and Air Canada, he noted that the Ontario Soccer Association controlled the playing of competitive soccer in Ontario, that there were approximately 500,000 players under the control of the Ontario Soccer Association and that it was impossible to play competitive soccer in Ontario without subjecting oneself to the authority of the Soccer Association: at para 23.

[40] For Nordheimer J., the triggering element favouring judicial review was not the exercise of state power, but the exercise of decision-making authority which had a broad impact on the public. As he put it in para. 24: “the actions of the OSA have a very broad public impact and it is correspondingly charged with very public responsibilities.”

[41] Nordheimer J. referred to a large number of judicial decisions which had reviewed decisions of sports authorities by way of judicial review both before and after Setia: St. Andrew’s College of v. York Region Athletic Association, [2000] O.J. No. 737; Woodbridge Soccer Club v. Ontario Soccer Association, [2002] O.J. No. 3806 (where the court expressed some doubt over jurisdiction but accepted jurisdiction given the agreement of the parties); Oz Optics Ltd. v. Canadian Soccer Association, [2001] O.J. No. 5701; Gymnopoulos v. Ontario Association of Basketball Officials, [2016] O.J. No. 152 and cited the Court of Appeal’s observation in Setia that whether a particular matter is subject to public law should be informed by existing case law: at para 25, citing Setia at paragraph 33.

[42] West Toronto United has been followed by others since it was released. By way of example, I granted judicial review in Islington Rangers Soccer League et al v. Toronto Soccer Association et al., 2017 ONSC 6229 for largely similar reasons.

[43] The line of reasoning reflected in West Toronto United has also been applied with respect to political parties. In Barron v. Warkentin, 2004 ABQB 603 the court set aside a decision of a provincial Conservative Party riding association arising out of a nomination battle. In doing so the court noted:

[41] In view of this profound impact on the democratic right of the people in Calgary Montrose to elect a candidate of their choice to the Provincial Legislature, I find that this court has the jurisdiction to at least review the decision of the organization which determines who may contest the nomination. I rely on the decision of Kaplan v. The Canadian Institute of Actuaries (1994), 1994 9065 (AB QB), 25 Alta. L.R. (3d) 108, [1994] A.J. No. 868 (Q.B.); affirmed (1997), 1997 ABCA 310, 151 D.L.R. (4th) 481, [1997] A.J. No. 874 (A.C.A.), leave to appeal dismissed, [1997] S.C.C.A. No. 563, and Isley v. Northern Alberta Institute of Technology, [2004] A.J. No. 372 (Q.B.), and the current trend which favours judicial review of such decisions of voluntary organizations rather than exclude it.

[44] Time does not allow for a full analysis of the law relative to the court’s jurisdiction to review decisions of voluntary organizations. However, in my opinion, a drastic decision impacting the democratic rights, not only of the applicant, but all residents in the constituency, must be subject to judicial review. To conclude otherwise would be to invite mischief and even corruption of the political process and infringement of basic democratic rights which are fundamental in our society.

[44] More recently, in Graff v. New Democratic Party, 2017 ONSC 3578, Nordheimer J. granted judicial review of a decision made by New Democratic Party of Canada in the course of a leadership contest. In balancing the Setia factors, Nordheimer J. noted that there is broad public import in the conduct of political parties, their activities are inextricably linked to the public domain, a leader of a federal party will be put forward as a candidate for the office of Prime Minister as a result of which the decision of political parties in selecting their leaders carries considerable importance for the voting public: at para. 12.

[45] Although Nordheimer J. agreed in para. 13 that the new Democratic Party was not exercising a public decision-making power, he found that its activities are “woven into the network of government” as that expression was used by Stratas J.A. in Air Canada. While noting that the new Democratic Party was not an agent of government nor was it controlled by government, political parties receive considerable amounts of public funds which tie them more closely to government than would be the case for other voluntary associations: at para. 14.

(iii) Competing Readings of Setia and Air Canada

[46] Although both parties rely on Setia, Mr. Trost and the CPC read it quite differently.

[47] The CPC submits that the cases on which Mr. Trost relies have misinterpreted Setia. It submits that many of those cases were decided by single judges in circumstances of urgency which led them to focus on the enumerated factors in isolation from the reasons as a whole.

[48] The CPC submits that Air Canada and Setia are to be read as providing a list of factors which will help determine whether a particular decision of a governmental or legislative organ should be subject to judicial review or private law remedies. By way of example, if a tribunal subject to judicial review terminated the employment of one of its staff members, the termination would not be subject to judicial review but would be subject to private law remedies: Air Canada at para. 52 - 53. For the CPC the factors set out in Air Canada and Setia simply help the court make that distinction in cases involving more nuanced circumstances. They are not factors which are applicable to determine whether a private actor’s decision should be subject to judicial review.

[49] Both Air Canada and Setia involved public actors whose conduct was potentially subject to judicial review. In Air Canada, the airline sought judicial review of an announcement by the Toronto Port Authority, a body that could come within the definition of a “federal board, commission or other tribunal” within the meaning of the Federal Courts Act: at para. 50. In Setia the court dealt with the expulsion of a student from a school that had been established by statute and that was subject to the Education Act.

[50] In both cases the courts were using the enumerated factors to determine whether the conduct of a public actor was of a sufficiently public character to make it subject to judicial review. Neither court was using the factors to subject a private actor to judicial review.

[51] In Air Canada the court determined that the Port Authority was not acting as a crown agent in announcing a process to distribute landing slots as a result of which judicial review was not available with respect to that decision. Similarly, in Setia the Court of Appeal held that the disciplinary power the school exercised in expelling the student did not flow from the statute creating the school or from the Education Act but flowed from a private contract between the school and the student’s parents which was governed by private law, not by judicial review.

[52] In doing so, both courts made statements that were potentially consistent with the position the CPC advocates in this proceeding.

[53] By way of example, in Air Canada the court noted at para. 55:

A further basis for this public-private distinction can be found in subsection 18(1) of the Federal Courts Act which provides that the main remedies on review are certiorari, mandamus and prohibition. Each of those is available only against exercises of power that are public in character.

[54] In Setia, in para. 23, the Court of Appeal quoted from Martineau v. Matsqui Disciplinary Board, [1981] 1 S.C.R. 602 at page 628 to the effect that:

Certiorari is available as a general remedy for supervision of the machinery of government decision-making.

[55] Mr. Trost submits that Air Canada and Setia are to be read as providing a list of factors which will help determine whether a decision of an admittedly private actor is of sufficient public importance to warrant judicial review.

[56] At least two of the factors set out in Air Canada and Setia are described in a manner that is potentially consistent with the position Mr. Trost advocates.

[57] Stratas J.A. described those two factors as follows:

• The extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by a public entity. For example, private persons retained by government to conduct an investigation into whether a public official misconducted himself may be regarded as exercising an authority that is public in nature: Masters v. Ontario, 1993 8530 (ONSC), 16 O.R. (3d) 439, [1993] O.J. No. 3091 (Div. Ct.). A requirement that policies, by-laws or other matters be approved or reviewed by government may be relevant: Aeric, supra; Canadian Centre for Ethics in Sport v. Russell, [2007] O.J. No. 2234 (S.C.J.).

• An “exceptional” category of cases where the conduct has attained a serious public dimension. Where a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable: Aga Khan, supra at pages 867 and 873; see also Paul Craig, “Public Law and Control Over Private Power” in Michael Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997) 196. This may include cases where the existence of fraud, bribery, corruption or a human rights violation transforms the matter from one of private significance to one of great public moment: Irving Shipbuilding, supra at paragraphs 61-62.

[58] The line of cases reflected in Adams, Deeb and Knox require government action. The line of cases reflected in West Toronto, Barron and Graff would apply judicial review to the decisions of private actors.

[59] While I am prepared to express my own view and determine the issue, it would, in my view, be inappropriate to do so. As the Court of Appeal noted in Setia, decisions on jurisdiction should be guided by the case law. The case law, even within the Divisional Court appears to be in conflict. Neither the parties nor I have been able to reconcile the conflicting lines of cases.

[60] Given the fundamentally policy oriented nature of the decision, it would, in my view, better serve the interests of the parties and the development of the case law as a whole, to have the issue determined by a full panel of the Divisional Court. A decision made by a panel that can debate the issue, challenge each other’s views and assess the question from multiple perspectives will result in a superior product than will the views of a single judge.

[61] Section 21 (4) of the Courts of Justice act provides:

A judge assigned to hear and determine a motion may adjourn it to a panel of the Divisional Court.

[62] I adjourn this issue to a panel. A date has already been sent for hearing before a panel in June of this year. In my view the benefits of having the decision made by a full panel far outweigh any disadvantage arising from a delay of approximately two months. There is no imminent expiry of any limitation period. Moreover, the CPC undertook in argument not to raise any limitation period against Mr. Trost. It has further agreed that it would submit to the jurisdiction of the Ontario Superior Court if the Divisional Court found that it had no jurisdiction to address the issues about which Mr. Trost complains.

B. Standing of the CPC As a Respondent

[63] While the application for judicial review was initially commenced against a number of individuals in leadership positions within the CPC, it was discontinued against all individuals. The CPC is the only remaining respondent.

[64] The CPC submits that it has no standing as a respondent in this proceeding because it is an unincorporated association. It cites a number of cases which hold that unincorporated associations, like political parties, are not legal persons and are therefore not capable of commencing or responding to a proceeding: McKinney v. Liberal Party of Canada, 1987CarswellOnt 481, [1987] O.J. No. 1293 (H.C.J.), at para. 11; Zundel v. Liberal Party of Canada, 1999 14889 (ON SC), 1999 CarswellOnt 241, [1999] O.J. 74 (Gen. Div.) at para 11; MacAlpine v. Ontario Progressive Conservative Party, 2003 CarswellOnt 3008, [2003] O.J. No. 3089 (S.C.J.) at paras. 27 and 31; Canadian Reform Conservative Alliance Portage-Lisgar Constituency Assoc. v. Harms, 2003 MBCA 112 at para. 22; Longley v. Canada (Attorney General), 2007 ONCA 852 at para. 116; Guergis v. Novak, 2013 ONCA 449 at para. 89.

[65] In addition to the case law on the status of unincorporated organizations, the CPC relies on s. 1 of the JRPA which provides:

“party” includes a municipality, association of employers, a trade union or council of trade unions which may be a party to any of the proceedings mentioned in subsection 2(1).

[66] The CPC submits that the definition of “party” in s. 1 has “consciously excluded” political parties from its ambit. Given that the Divisional Court is a creature of statute, it cannot go beyond the definition of party contained in the JRPA.

[67] In my view, law is not as simple as the CPC submits.

[68] The cases it relies on involve situations where unincorporated associations are being sued or are trying to sue for damages or constitutional remedies.

[69] There is a large body of law dealing with unincorporated associations which holds that they are proper parties to proceedings aimed at compelling enforcement of their own rules and the rules of natural justice: Warkentin v Sault Ste. Marie Board of Education, [1985] O.J. No. 1616 at para. 28; Courchene v Carleton University Students’ Association Inc., 2016 ONSC 3500 at para. 9-10; Arriola v Ryerson Students’ Union, 2018 ONSC 1246 at para 53-54. That principle has also been applied to political parties: Arsenault v Progressive Conservative Party of Ontario, 2018 ONSC 1663; Cureatz v Progressive Conservative Party of Canada, [1997] OJ No2309 (Gen. Div.) at para. 13, 18 and 27; Barron v Warkentin, 2004 ABQB 603 a para. 44, 49-50, appeal dismissed 2005 ABCA 351.

[70] The CPC submits these cases are distinguishable because they are decisions of the Superior Court of Justice, not the statutorily limited Divisional Court.

[71] I cannot accept that as a basis for distinction. If the Superior Court of Justice has jurisdiction over an unincorporated entity to ensure that it adheres to natural justice and/or lives by its own rules, I can see no principled reason why the Divisional Court should not have the

jurisdiction to review decisions of those entities on the same basis, assuming that the subject matter of the decision falls within the scope of judicial review, an issue which I have referred to a full panel of the Divisional Court.

[72] Nor can I accept the submission that the definition of “party” under s. 1 of the JRPA has “consciously excluded” political parties from its ambit. While political parties are not found within the enumerated classes within the definition of “party,” the definition is inclusive, not exclusive.

[73] The issue of the status of the CPC to be a respondent is a jurisdictional question which requires a definitive answer rather than application of the plain and obvious test. Either the court has jurisdiction over the CPC or it does not. Given the inclusive definition of a party in the JRPA, the ample case law supporting jurisdiction over unincorporated associations for the purposes of ensuring that they adhere both to their internal rules and to the rules of natural justice, and the absence of any principled reason for according such jurisdiction to the Superior Court but denying it to the Divisional Court, in my view, unincorporated associations like the CPC do have standing to be subject to judicial review, assuming the subject matter of the application is appropriate for judicial review.

[74] There are of course also a number of other decisions that have subjected the decisions of unincorporated associations to judicial review which I have referred to in paragraphs 38, 41 and 44 above. Since those are cases that reflect one of two conflicting lines of jurisprudence, I have not relied on them in coming to a determination on this issue.

C. Prematurity

[75] The CPC submits that even if the matters of which Mr. Trost complains are subject to judicial review, his application should be dismissed as premature because he failed to appeal to the DRAC.

[76] In this regard the CPC relies on cases holding that the failure to exhaust alternative internal remedies is fatal to an application for judicial review: Deeb, at paras. 31 - 32; French v. Township of Springwater, 2018 ONSC 94 (Div. Ct.) at para. 54.

[77] I cannot accept that it is plain and obvious that the application for judicial review will fail for prematurity.

[78] Under the leadership contest rules, appeals were available from decisions of the CRO. It is at least arguable that the CRO made no decision here. The Executive Director and the LEOC did. It is not plain and obvious that the rules provide an appeal from decisions of the Executive Director or the LEOC.

[79] In addition, all members of the DRAC were also members of the LEOC. Requiring Mr. Trost into appeal to the DRAC is effectively requiring him to appeal to a subset of the same body that made the decision against him. An appellate body should be free of any reasonable apprehension of bias and should be independent from the decision-maker. Having the DRAC sit in appeal of its own decision would seem to be a waste of time and resources: Nova Scotia (Attorney General) v MacLean, 2017 NSCA 24 at para. 27.

[80] Moreover, an application to the DRAC is not an appeal. It is at most an application for reconsideration. Reconsideration is not an adequate alternative remedy which precludes judicial review: Robert Macaulay, Practice and Procedure Before Administrative Tribunals at §28.4(e)(iii)(B).

[81] The parties referred, more or less in passing, to an additional potential ground to strike the application. The CPC submits that Mr. Trost contracted out of judicial review in the agreement he signed as part of the leadership contest and in the rules to which he agreed to abide. Mr. Trost submits that the CPC in effect repudiated that agreement by failing to follow the rules referred to in the agreement. Given that neither party devoted much time to this issue either by providing case law or submissions, it is not plain and obvious that Mr. Trost would fail on his repudiation argument on a judicial review.

IV. DISPOSITION

[82] For the reasons set out above, I adjourn the question of whether the Divisional Court lacks jurisdiction because of the absence of state conduct to the panel scheduled to hear the application for judicial review in June, 2018. I dismiss the balance of the motion. I reserve costs to the panel hearing the application for judicial review in June, 2018.

Koehnen J.

Released: April 9, 2018

CITATION: The Conservative Party of Canada v. Trost, 2018 ONSC 2230

DIVISIONAL COURT FILE NO.: 514/17

DATE: 20180409

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

BRADLEY TROST

Applicant

– and –

THE CONSERVATIVE PARTY OF CANADA, DUSTIN VAN VUGT (as Executive Director of the Conservative Party of Canada), DAVID FILMON (as Chief Returning Officer), DAN NOWLAN (as Chair of the Leadership Election Organizing Committee), JAI BHATTI, STEWART BRADDICK, LOIS BROWN, GARY CLEMENT, DAVID CONNELLY, DIANE FINLEY, MARC-OLIVIER FORTIN, JULIE GAUDREAU, IRVING GERSTEIN, ROHIT GUPTA, LOYOLA HEARN, PETER HELLEY, MICHAEL LAUER, CHRIS LYDON, CAMERON MACKEEN, SAM MAGNUS, RICHARD PLAIN, NANCY STRAND, JOHN WALSH (as members of the Leadership Election Organizing Committee), and SCOTT LAMB (as President of the National Council of the Conservative Party of Canada)

Respondents

REASONS FOR JUDGMENT

Koehnen J.

Released: April 09, 2018