Trost v. Conservative Party of Canada et al.

[Indexed as: Trost v. Conservative Party of Canada]

Ontario Reports

Ontario Superior Court of Justice

Divisional Court, Morawetz R.S.J., Swinton and Broad JJ.

May 7, 2018

144 O.R. (3d) 67 | 2018 ONSC 2733

Case Summary

Administrative law — Judicial review — Availability — Public law remedies not being available in respect of disciplinary decision of political party — Leadership candidate's application for certiorari and mandamus against Conservative Party of Canada being dismissed for lack of jurisdiction.

T was a candidate for leadership of the Conservative Party of Canada in 2017. The CPC's Leadership Election Organizing Committee found that he had contravened the rules governing the leadership contest because his campaign was responsible for a leak, and fined him $50,000. T brought an application for an order in the nature of certiorari and mandamus against the CPC, arguing that the decision was not taken by the appropriate official and that he was denied procedural fairness. The CPC brought a motion to quash the judicial review application for want of jurisdiction.

Held, the motion should be granted.

The disciplinary decision of the CPC was not a decision to which a public law remedy could be applied. To enter the leadership race, T was required to sign a contract that he would respect the rules and would abide by the disciplinary process set out in those rules. While the matter at issue did not arise out of a commercial contract, it did arise in contract. A dispute between a candidate for leadership of a political party that is an unincorporated association with rules set out in its constitution to govern the relations among members is not a matter of broad import to members of the public. While political parties play a very important role in the parliamentary system, they are not governmental actors and do not exercise public responsibilities. The applicant's remedies lay in private law.

Graff v. New Democratic Party, [2017] O.J. No. 2971, 2017 ONSC 3578, 28 Admin. L.R. (6th) 294, 279 A.C.W.S. (3d) 757 (Div. Ct.), not folld

Knox v. Conservative Party of Canada, [2007] A.J. No. 1046, 2007 ABCA 295, 286 D.L.R. (4th) 129, 49 C.P.C. (6th) 216, 65 Admin. L.R. (4th) 167, 422 A.R. 29, [2008] 3 W.W.R. 588, 85 Alta. L.R. (4th) 34, 160 A.C.W.S. (3d) 645; Longley v. Canada (Attorney General) (2007), 88 O.R. (3d) 408, [2007] O.J. No. 4758, 2007 ONCA 852, 231 O.A.C. 244, 165 C.R.R. (2d) 190, 288 D.L.R. (4th) 599, 163 A.C.W.S. (3d) 402; Setia v. Appleby College (2013), 118 O.R. (3d) 481, [2013] O.J. No. 5736, 2013 ONCA 753, 370 D.L.R. (4th) 356, 64 Admin. L.R. (5th) 91, 313 O.A.C. 264, 235 A.C.W.S. (3d) 289, consd

Air Canada v. Toronto Port Authority, [2011] F.C.J. No. 1725, 2011 FCA 347, 426 N.R. 131, [2013] 3 F.C.R. 605, apld

Other cases referred to

Adams v. Canada (Attorney General), [2011] O.J. No. 6068, 2011 ONSC 7592, 38 Admin. L.R. (5th) 281, 213 A.C.W.S. (3d) 816 (Div. Ct.), denying reconsideration [2011] O.J. No. 207, 2011 ONSC 325, 272 O.A.C. 301, 22 Admin. L.R. (5th) 351, 197 A.C.W.S. (3d) 105 (Div. Ct.); Assn. of Professors of the University of Ottawa v. University of Ottawa, [page68] [2018] O.J. No. 898, 2018 ONSC 1191 (Div. Ct.); Deeb v. Investment Industry Regulatory Organization of Canada, [2012] O.J. No. 2873, 2012 ONSC 3443 (Div. Ct.), denying reconsideration [2012] O.J. No. 691, 2012 ONSC 1014, 289 O.A.C. 81 (Div. Ct.); Galati v. McGuinty, 1999 14899 (ON SC), [1999] O.J. No. 2171, 92 O.T.C. 119, 64 C.R.R. (2d) 1, 88 A.C.W.S. (3d) 1165, 1999 CarswellOnt 1802 (S.C.J.); Gymnopoulos v. Ontario Assn. of Basketball Officials, [2016] O.J. No. 1097, 2016 ONSC 1525 (S.C.J.); Irving Shipbuilding Inc. v. Canada (Attorney General), [2009] F.C.J. No. 449, 2009 FCA 116, [2010] 2 F.C.R. 488, 389 N.R. 72, 314 D.L.R. (4th) 340, 98 Admin. L.R. (4th) 51, 2010EXP-3772, 183 A.C.W.S. (3d) 975; Islington Rangers Soccer League v. Toronto Soccer Assn., [2017] O.J. No. 5647, 2017 ONSC 6229 (S.C.J.); Martineau v. Matsqui Institution, 1979 184 (SCC), [1980] 1 S.C.R. 602, [1979] S.C.J. No. 121, 106 D.L.R. (3d) 385, 30 N.R. 119, 50 C.C.C. (2d) 353, 13 C.R. (3d) 1, 15 C.R. (3d) 315, 4 W.C.B. 178; Milberg v. North York Hockey League, [2018] O.J. No. 272, 2018 ONSC 496 (S.C.J.); Olumide v. Conservative Party of Canada, [2015] F.C.J. No. 1202, 2015 FCA 218, 477 N.R. 394, 259 A.C.W.S. (3d) 74; R. v. Disciplinary Committee of the Jockey Club, ex parte Aga Khan, [1993] 2 All E.R. 853 (C.A.); Trost v. Conservative Party of Canada, [2018] O.J. No. 2022, 2018 ONSC 2230 (Div. Ct.); West Toronto United Football Club v. Ontario Soccer Assn., [2014] O.J. No. 4773, 2014 ONSC 5881 (Div. Ct.)

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 21(5)

Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(1)1

MOTION to quash an application for judicial review.

Andrea Gonsalves, for applicant Bradley Trost.

Arthur Hamilton, for respondent Conservative Party of Canada.

The judgment of the court was delivered by

Swinton J.: —

Overview

1The Conservative Party of Canada (the "CPC") has brought a motion before a panel of the Divisional Court seeking an order to quash the applicant's application for judicial review for want of jurisdiction. This motion was originally before Koehnen J. on March 23, 2018, and he referred it to a panel for determination (see [2018] O.J. No. 2022, 2018 ONSC 2230 (Div. Ct.)).

2The CPC also brings a motion pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 seeking to set aside parts of the order of Koehnen J. -- namely, his refusal to quash the application for judicial review because the CPC, an unincorporated association, lacks standing to be sued and because the application is premature.

3The central issue in this motion is the jurisdiction of the Divisional Court to hear an application seeking an order in the nature of certiorari and mandamus against the CPC. For the reasons that follow, I would quash the application on the basis that [page69] the Divisional Court lacks jurisdiction to hear an application seeking such relief against the CPC.

Background Facts

4The applicant, Bradley Trost, was a candidate for the leadership of the CPC in 2017. In order to be a participant in the contest, he was required to sign a contract where he agreed to the following statement:

I have read and understand the Leadership Nomination Rules and Procedures. I acknowledge and agree that the Leadership Election Organizing Committee [LEOC] has authority to disallow my candidacy on any ground it sees fit, and which shall be final and binding. I also acknowledge that my sole ability to appeal a decision of the Chief Returning Officer is with the LEOC's Dispute Resolution and Appeals Committee whose decision shall be final and binding and not further appealed or challenged.

5In June 2017, a decision was made by the LEOC that the applicant had contravened the rules governing the leadership contest because his campaign was responsible for the leak of confidential information. He was fined $50,000, the amount he had been required to pay as a compliance deposit.

6The applicant submits that the decision was not taken by the appropriate official, the chief returning officer ("CRO"), and he was denied procedural fairness. While he had a right to appeal a decision of the CRO to the Dispute Resolution Appeals Committee ("DRAC"), he launched this application for judicial review against the CPC and a number of individuals. He alleges that the appeal process is fatally flawed because of a reasonable apprehension of bias.

7The application is proceeding only against the CPC, which argues that it should be quashed on the bases of a lack of jurisdiction, the CPC's lack of standing as a respondent and prematurity.

The Jurisdictional Issue

The parties' positions

8The CPC submits that the relief sought, orders in the nature of certiorari and mandamus, are public law remedies that are not available in this proceeding, where a disciplinary decision of the CPC is challenged. It takes the position that certiorari is only available where government conduct is called in issue, and the CPC is a private, voluntary association.

9The applicant argues that certiorari is available not only to challenge government conduct, but also in other situations where a decision has a broad public impact. In particular, the applicant relies on the decision of Graff v. New Democratic Party, 2017 ONSC 3578, [2017] O.J. No. 2971, [page70] 2017 ONSC 3578 (Div. Ct.), where Nordheimer J., sitting as a judge of the Superior Court of Justice, granted judicial review of a decision of the New Democratic Party made in the course of a leadership contest.

The law relating to the availability of certiorari

10Pursuant to s. 2(1)1 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the "Act"), the Divisional Court may hear applications for judicial review where the proceeding is "by way of application for an order in the nature of mandamus, prohibition or certiorari".

11The Act does not specify when such remedies may be sought. Instead, one must turn to common law principles to determine that issue. The leading case in Ontario is Setia v. Appleby College (2013), 118 O.R. (3d) 481, [2013] O.J. No. 5736, 2013 ONCA 753. In that case, Goudge J.A. emphasized that there is no need for a statutory power of decision in order to seek certiorari (at para. 32). However, these prerogative remedies have historically been available to supervise public decision makers. As Goudge J.A. stated, at para. 20:

The prerogative remedies brought together by the JRPA (mandamus, prohibition and certiorari) constitute mechanisms that have been used by the courts to ensure that public decision makers observe the principles and rules of public or administrative law by which they must function. While the notion of public law defies full and precise definition, the courts use the prerogative remedies to supervise persons and bodies that derive their powers from statute in their performance of functions of a public or governmental nature.

(Emphasis added)

12Goudge J.A. also quotes Dickson J. (as he then was) in Martineau v. Matsqui Institution, 1979 184 (SCC), [1980] 1 S.C.R. 602, [1979] S.C.J. No. 121 [at para. 23],

Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person.

13Goudge J.A. then went on to emphasize that a determination of whether any particular decision is subject to public law and its remedies requires a consideration of the relevant circumstances in the particular case. He drew on the analysis of Stratas J.A. in Air Canada v. Toronto Port Authority, [2011] F.C.J. No. 1725, 2011 FCA 347, where Stratas J.A. provided a helpful summary of the factors that emerge from decided cases to assist in determining whether a matter is subject to public law, as opposed to private law (at para. 34). Those factors are: [page71]

-- 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.

14At least six of these factors are important for the purposes of this case, and they lead to the conclusion that the discipline decision of the CPC is not a decision to which a public law remedy can be applied.

15First is the character of the matter for which the review is sought. As Stratas J.A. asks in Air Canada (at para. 60)"Is it a private, commercial matter, or is it of broad import to members of the public?" In the present case, the decision challenged is a disciplinary decision of a political party following a leadership race. In order to enter that race, the applicant was required to sign a contract that he would respect the rules and would abide by the disciplinary process set out in those rules. While the matter at issue does not arise out of a commercial contract, it does arise in contract. It is a dispute between a candidate for leadership in a political party that is an unincorporated association with rules set out in its constitution to govern the relations among members. This is not a matter of broad import to members of the public.

16Second, the nature of the decision maker and its responsibilities is significant here. The question that Stratas J.A. asks [at para. 60] in relation to this factor is the following: "Is the decision-maker public in nature such as a Crown agent or statutorily recognized administrative body, and charged with public responsibilities?" The decision maker here is the CPC, a political party. While political parties play a very important role in the Canadian parliamentary system, based as it is on a Westminster style of government, those parties are not governmental actors. They do [page72] not draw their powers from government, nor do they exercise public responsibilities.

17The Alberta Court of Appeal described the nature of political parties well in Knox v. Conservative Party of Canada, [2007] A.J. No. 1046, 2007 ABCA 295, at paras. 26 and 27, making two important observations: political parties are private organizations, and the public importance of the parties' activities does not bring them within the public law realm. The court stated:

Neither constituency associations nor political parties are given any public powers under the Canada Elections Act, S.C. 2000, c. 9. They are essentially private organizations. It is true that their financial affairs are regulated: they may only give tax receipts in certain circumstances, and they may only spend the money they raise in certain ways. However, merely because an organization is subject to public regulation does not make it a public body subject to judicial review. The fact that the organization may require or may hold a licence or permit of some kind is also not sufficient, nor is the fact that the organization may receive public money. Many organizations are subject to public regulation. For example, all charities must be registered in order to issue charitable receipts, but that does not mean that they are exercising public functions and therefore are subject to judicial review.

It is argued that the democratic process, elections, and the activities of political parties are of great public importance. That is undoubtedly true, but public importance is not the test for whether a tribunal is subject to judicial review. When arranging for the nomination of their candidate in Calgary West, the Party and the Association were essentially engaged in private activities, and their actions, in this case, are not subject to judicial review. They are, however, subject to private law remedies that may be engaged. Like many private organizations, the Appellants in this case have constitutions, bylaws and rules. Members are entitled to have those documents enforced in accordance with their terms and the proper interpretation of those terms. The remedies available are, however, private law remedies.

18I reach the same conclusion with respect to the CPC: it is a private organization, albeit one that plays an important role in the Canadian political system.

19The third factor of relevance is the extent to which the challenged decision is founded and shaped by law as opposed to private discretion. Again, it is instructive to look to the question posed by Stratas J.A. [at para. 60]: "If the particular decision is authorized by or emanates directly from a public source of law such as statute, regulation or order, a court will be more willing to find that the matter is public" [citations omitted].

20Here, the disciplinary decision is shaped by the rules of the leadership contest and the dispute settlement mechanism set out in the rules. It is a decision of a private organization taken in accordance with contract. While there are certain statutes that bind political parties, most obviously the Canada Elections Act, the CPC, in running its leadership race and disciplining a participant, is not making a decision under a law or regulation. [page73]

21The fourth relevant factor is the body's relationship to other statutory schemes or parts of government. Again, Stratas J.A. comments [at para. 60]"If the body is woven into the network of government and is exercising a power as part of the network, its actions are more likely to be seen as a public matter" [citations omitted]. It is true that political parties are a vital part of our parliamentary system of government, but they do not exercise their powers as a part of government. Their powers derive from their constitution and their rules governing their relationship with their members. Those powers do not come from the government.

22The fifth factor is the extent to which the decision maker is an agent of government, controlled or significantly influenced by a public entity. As I said in the previous paragraph, political parties are not controlled or significantly influenced by a public entity. Their election activities are regulated, as is their fund raising. Tax credits are given for certain donations to political parties. However, they do not function as governmental actors.

23I skip over the sixth factor (the suitability of public law remedies) to the seventh: the existence of compulsory power. While the CPC has exercised disciplinary power over the applicant, it did so in a context where he entered into a contract to abide by certain rules and a disciplinary process. This is not a compulsory power flowing from a conferral of state power, as in the professional discipline context.

24The final factor is the "exceptional category of cases where the conduct has attained a serious public dimension" [emphasis omitted]. There is minimal detail to explain what is meant by this exception. The first case cited by Stratas J.A. under this category, R. v. Disciplinary Committee of the Jockey Club, ex parte Aga Khan, [1993] 2 All E.R. 853 (C.A.) held that a decision of the Jockey Club was not subject to judicial review because it was a private, voluntary association. The second case Irving Shipbuilding Inc. v. Canada (Attorney General),[2009] F.C.J. No. 449, 2009 FCA 116 was a case clearly involving a government decision -- the awarding of a contract. The case raised issues about the availability of a remedy for a subcontractor and the scope of the duty of procedural fairness.

25Neither of those cases suggest that there is, at present, a general category of exceptional circumstances that permit judicial review where the public is affected by a decision of a private association. No case is cited to support the conclusion that judicial review is available in the absence of some government action or some exercise of power under a statute. Therefore, that factor [page74] is not relevant in the present case, given the absence of a government nexus to the decision.

26In summary, when the factors are considered in the context of this case, they overwhelmingly show that the decision in issue is not a public decision that can be reviewed in accordance with public law principles and remedies. The applicant's remedies lie in private law.

27That brings me to the decisions which the applicant argues are determinative, particularly Graff, cited earlier. There is no question that there is a line of relatively recent cases in Ontario that have allowed an applicant to proceed with an application for judicial review of a decision of a voluntary association. The seminal case appears to be West Toronto United Football Club v. Ontario Soccer Assn., [2014] O.J. No. 4773, 2014 ONSC 5881 (Div. Ct.). It was followed by Graff, both decisions of Nordheimer J. (as he then was) sitting as a Superior Court judge hearing an urgent application for judicial review.

28With all due respect, I believe the decision in Graff was wrongly decided, and I would not follow it in this case. In Graff,the Court accepted that the arrangements between party members were essentially contractual in nature; that the party, in its leadership contest, was not exercising a public decision-making power; and that the party was not an agent of government nor controlled by government (paras. 12-14). However, the court noted that parties receive considerable public funds, and they exercise a compulsory power over their members. It is apparent from the reasons that the Court focused on the importance of the decisions of political parties to the voting public. Nordheimer J. relied heavily on the "exceptional circumstances" factor, noting that Setia and Air Canada provide a definition of that category. However, had he looked to the sparse case law cited in Air Canada, he would have found that this category still requires a consideration of the nexus between the decision and an exercise of governmental power.

29In my view, Graff is inconsistent with cases like Knox above, as well as the Ontario Court of Appeal decision in Longley v. Canada (Attorney General) (2007), 88 O.R. (3d) 408, [2007] O.J. No. 4758, 2007 ONCA 852, where the court stated, at para. 71:

Although political parties play a critical role in the democratic process, they remain independent, private, organizations and their continued separation from the state is important to the proper functioning of that process. Their independence is fundamental.

A similar view is expressed in Galati v. McGuinty, 1999 14899 (ON SC), [1999] O.J. No. 2171, 1999 CarswellOnt 1802 (S.C.J.) and Olumide v. Conservative Party of Canada, [2015] F.C.J. No. 1202, 2015 FCA 218, at para. 8. [page75]

30As Koehnen J. stated, when this motion to quash came before him, there are two lines of cases in the Divisional Court jurisprudence respecting the availability of certiorari. One line, and the line that I would characterize as the traditional approach, requires the decision maker to be discharging public duties or exercising powers of a public nature in order that the decision is subject to the public law remedy of judicial review by way of certiorari (see, for example, Setia; Adams v. Canada (Attorney General),[2011] O.J. No. 207, 2011 ONSC 325 (Div. Ct.) (upheld [2011] O.J. No. 6068, 2011 ONSC 7592 (Div. Ct.)); Deeb v. Investment Industry Regulatory Organization of Canada, [2012] O.J. No. 691, 2012 ONSC 1014 (Div. Ct.) (upheld [2012] O.J. No. 2873, 2012 ONSC 3443 (Div. Ct.) on other grounds); Assn. of Professors of the University of Ottawa v. University of Ottawa, [2018] O.J. No. 898, 2018 ONSC 1191 (Div. Ct.); and Milberg v. North York Hockey League, [2018] O.J. No. 272, 2018 ONSC 496 (S.C.J.), at paras. 30-32).

31The second line of cases does not require an exercise of state authority in order that a decision be subject to review by way of certiorari -- see Graff, above; West Toronto,above; Islington Rangers Soccer League v. Toronto Soccer Assn., [2017] O.J. No. 5647, 2017 ONSC 6229 (S.C.J.) (following West Toronto); and Gymnopoulos v. Ontario Assn. of Basketball Officials, [2016] O.J. No. 1097, 2016 ONSC 1525 (S.C.J.) (also following West Toronto). In West Toronto,Nordheimer J. focused on the effect of the decision of the soccer association on a broad segment of the public (at para. 24), an approach that had been rejected by the Divisional Court in Adams, above.

32Clearly, there is a need to clarify the proper approach to a determination of the jurisdiction of the Divisional Court to hear an application in the nature of certiorari. In view, the first line of cases applies the correct approach. Setia was not a departure from the longstanding jurisprudence that requires the decision to be an exercise of state power before the remedy of certiorari is available. To return to the seminal Supreme Court of Canada decision in Martineau, cited earlier, the remedy of certiorari is available to supervise government decision making. Similarly, Goudge J.A. stated in Setia, at para. 20: "the courts use the prerogative remedies to supervise persons and bodies that derive their powers from statute in their performance of functions of a public or governmental nature".

33Not all decisions of a governmental actor are subject to review by way of certiorari. Some, such as decisions of a contractual nature, are subject to private law remedies (see the discussion of government contracting in Setia, at para. 22). The factors set out [page76] in Setia are used to determine whether public law remedies or private law remedies are available in respect of a particular exercise of power by a governmental decision maker or a decision maker who derives power from government. Those factors were not meant to be used to subject the decisions of private actors to judicial review.

34I end with a quotation from the recent decision of De Sa J. in Milberg, above, at para. 32:

Private actors routinely make decisions that have implications for the public more broadly. However, if the decisions do not amount to an exercise of power emanating from the legislature, the Court's jurisdiction over such matters should flow from the private law, and the related remedies available to the litigants in the private sphere, and not the JRPA.

35The CPC is a voluntary association. While it plays a very important role in the Canadian political system, it is nevertheless a private actor, and its decisions are not subject to judicial review by way of certiorari.

36Accordingly, the motion to quash the application for judicial review for want of jurisdiction is granted, and the application is quashed. Given this outcome, I need not address the standing and prematurity issues.

37Costs to the CPC are fixed at $19,000 for the motions and $3,000 for the application, amounts that have been agreed upon by the parties.