CITATION: Dickson v. Essensa, 2022 ONSC 2649
DIVISIONAL COURT FILE NO.: DC-22-00001302-00JR
(Oshawa)
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: MARK DICKSON v. GREG ESSENSA, chief electoral officer of ontario
BEFORE: MacLeod R.S.J. and D.L. Corbett and Charney JJ.
COUNSEL: Mark Dickson, self-represented Appellant
Stephen Aylward, for the Respondent
HEARD: April 28, 2022 by videoconference
REASONS FOR DECISION
1The Applicant is a member of the Direct Democracy Party of Canada, which is a federally registered political party, and is seeking to run in the upcoming provincial general election.
2A provincial election is scheduled in Ontario on June 2, 2022: Election Act, RSO 1990, c. E.6, s.9(2). The writ will be “dropped” on May 4, 2022: Election Act, s.9.1(3) and (5). The applicant wishes to run as a candidate in the upcoming provincial election as a representative of the DDP. He applies to this court for judicial review of the decision to refuse to register the DDP.1
3The respondent is Ontario’s Chief Electoral Officer.
4On March 9. 2022, Mr. Partap Dua, the President of the Direct Democracy Party of Canada, submitted a request to Elections Ontario to reserve the name “Direct Democracy Party of Canada” with abbreviated form “Direct Democracy”.
5On March 22, 2022, the Chief Electoral Officer informed Mr. Dua that the request to reserve the name “Direct Democracy Party of Canada” had been rejected under s. 10(5) of the Election Finances Act, RSO 1990, c. E.7 (the “EFA” or the “Act”)
6This decision was confirmed after informal reconsideration by decision dated April 6, 2022.
This Application
(a) The Regulatory Framework
7The impugned decision was made under Ontario’s Election Finances Act, RSO 1990, c. E.7 (the “EFA” or the “Act”), s.10(5), which provides as follows:
(5) The Chief Electoral Officer shall not register a political party if,
(a) its name includes the word “independent” or “indépendant” in any form; or
(b) in his or her opinion, the resemblance between the name or abbreviation of the name of the party and the name, abbreviation of the name or nickname of another political party or political organization that is active anywhere in Canada is so close that confusion is likely.
8The EFA envisions a two-step process for the registration of party names. Registration of party names is governed by subsections 10(2) – (5) of the EFA. Subsection 10(7) of the EFA also provides that a political party which intends to register a party name must first reserve the name by seeking a determination that the name is “registerable”. Subsection 10(7) provides:
(7) A political party which intends to apply to the Chief Electoral Officer for registration under clause (2)(b) shall, prior to canvassing for signatures for the purpose, submit to the Chief Electoral Officer the full name of the political party and the abbreviation thereof, if any, and the Chief Electoral Officer shall determine whether the name and abbreviation thereof, if any, is registrable in accordance with subsection (5).
9Pursuant to s.10(8) of the EFA, if the CEO determines that the name is registerable, the Chief Electoral Officer shall reserve the name for the political party for a period of one year until the registration process under s.10(5) is complete. During that period, “the political party shall be deemed to be a registered political party for the purposes of subsection (5)”.
10The EFA, s.2(1)(j), empowers the respondent to adopt guidelines respecting the proper administration of the Act. The respondent has issued Guidelines respecting the names of political parties (among other things). Section 2(1) of the Guidelines states:
The Chief Electoral Officer will determine whether or not the name and abbreviation are acceptable for registration based on the following:
a. The proposed name and abbreviation shall not contain the word ‘Independent’;
b. The proposed name and abbreviation shall not be similar to another political party or entity in Canada;
c. The proposed name and abbreviation shall not be abusive or offensive; and
d. An individual shall not make multiple reservations of names and abbreviations.
(b) The Impugned Decision
11On February 25, 2022, the President of the DDP, Mr Dua, applied to reserve the name “Direct Democracy Party of Ontario” under the EFA. On March 9, 2022, Mr Dua withdrew this request and submitted a fresh request to register the name “Direct Democracy Party of Canada.”
12On March 22, 2022, the respondent advised Mr Dua that the request to reserve “Direct Democracy Party of Canada” had been rejected pursuant to EFA, s.10(5) because the proposed name was likely to cause confusion with another party currently registered in Ontario, the “None of the Above Direct Democracy Party.”
13On March 23, 2022, Mr Dua asked for reconsideration of the March 22nd decision. On April 6, 2022, the respondent denied that request and confirmed the decision of March 22, 2022.
14On March 29, 2022, Mr Dua submitted three alternative proposed names, each including the phrase “Direct Democracy”. This request was rejected on March 29, 2022 on the basis that a person may only seek to reserve one name at a time, as per the Guidelines.
15On these facts there are three decisions:
a. The original decision dated March 22, 2022;
b. The reconsideration decision dated April 6, 2022; and
c. The decision rejecting three alternative names dated March 29, 2022.
Jurisdiction and Standard of Review
(a) Jurisdiction
16The EFA does not provide for an appeal from the impugned decisions. The impugned decisions are exercises of a statutory power of decision set out in EFA, s.10(5)(b). Thus, this court has jurisdiction to review them pursuant to s.2(1)2 of the Judicial Review Procedure Act, RSO 1990, c. J.1.
(b) Standard of Review
17The standard of review of the impugned decisions is reasonableness: Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65 (“Vavilov”). To the extent that issues are raised about the procedural fairness of the process followed below, those issues are reviewed in this court on a standard of fairness. No extricable legal issues are raised in this review to which a standard of review of correctness could apply.
(c) Reasons for the Impugned Decisions
18The respondent states as follows in his factum (at para. 21):
The [Chief Electoral Officer] is not required to provide reasons for a decision to refuse a request to reserve a name under s.10(8) of the EFA. In this case, the [Chief Electoral Officer] did not provide formal reasons for his decision.
19Subsection 10(8) does not include a requirement for reasons. However, s.10(4) does have such a requirement. It states as follows:
On receiving an application for registration of a political party, the Chief Electoral Officer shall, …
(c) if the party cannot be registered, so inform the party, with written reasons for the determination.
The statute could not be clearer about the requirement for written reasons. Notice of the decision did not include written reasons, as conceded in the respondent’s factum.
20The respondent argues that a decision that a party will not be registered under s.10(4) requires reasons, but a decision that a proposed name may not be registrable under s.10(7) does not require reasons. I do not accept that argument. One reason to refuse to register under s.10(4) is because the name of the proposed party is unacceptable. On the respondent’s reading, where this issue arises on an application for registration pursuant to s.10(4), reasons are required, but where it arises on an application to determine whether the name is “registerable” under s.10(7) they are not. That is not reasonable. An adverse decision under s.10(7) is a subset of the decisions under s.10(4); under both subsections an adverse decision means that the party name will not be registered, and reasons are required. Section 10(5) of the EFA is the statutory authority to reject a name under both subs. 10(4) and 10(7).
21In the result, the impugned decisions cannot stand because the Chief Electoral Officer, by his own admission, failed to provide reasons as required by s.10(4)(c). They are quashed and remitted back to the respondent for a decision with reasons. I wish to be clear that in so deciding, I say nothing about the reasonableness (or otherwise) of the impugned decisions.
22Time is now tight in respect to the potential registration of the DDP for the upcoming election. It is not clear to me that the submission of three alternative names offends s.2(1)(d) of the Guidelines: the DDP only wishes to register one of its proposed alternative names, and given the tight deadline, it was trying to provide suggestions that would enable it to register for the upcoming election. It could be argued that this does not seek “multiple reservation of names”, but rather, alternative proposals for registration of one name.
23I can understand why the respondent could interpret the Guidelines to preclude such an approach: an application to register is a specific request, not a process of negotiation. However, given the way that this matter has unfolded, there is now insufficient time for applications to be made serially for the alternatives that have been proposed.2 In my view, fairness requires that decisions be made on the proposed alternatives in time for the decisions to be effective for the upcoming election. Therefore, without prejudice to the general issue of whether applicants may seek to register alternative names in another case, in this case I would direct the respondent to decide requests to register the following names:
- Direct Democracy Party of Canada
- Direct Democracy Party of Canada (Ontario)
- Direct Democracy Canada
- Direct Democracy Canada (Ontario)
These decisions shall be decided serially, in the order set out above, with the proviso that if the respondent accepts a name for registration, no decision shall be rendered respecting any names remaining on the list. This remedy goes beyond the specific request made in the Notice of Application, but I am mindful that the applicant is not represented by counsel, and in para. 1(g) of the Notice, the applicant seeks “such further and other relief as this Honourable Court deems just.”
Order
24The application is allowed, the impugned decisions are quashed, and the application to reserve the name is remitted back to the respondent for decision with reasons, in accordance with s.10(4) of the EFA and these reasons. There shall be no order as to costs, as agreed by the parties.
D.L. Corbett J.
I agree: _______________________________
MacLeod R.S.J.
I agree: _______________________________
Charney J.
May 2, 2022
Footnotes
- The Applicant has been authorized to bring this application on behalf of the DDP by its President, Mr. Dua. I accept that Mr. Dickson has standing to bring this application in these circumstances, and this issue is not raised by the respondent.
- To be clear, I do not blame the respondent for the delay from March 22, 2022. The applicant and the President of the DDP misconstrued the nature of the administrative process, which is not a debate, discussion, or negotiation. The request was decided on March 22, 2022. There is no reconsideration process in the EFA, and it would not have been proper for the respondent to agree to “mediate” the issue, as proposed by the DDP.