Nunziata v. Wong, Clerk, City of Toronto [Indexed as: Nunziata v. Toronto (City) (Clerk)

50 O.R. (3d) 295

[2000] O.J. No. 3407

Docket No. C34606

Court of Appeal for Ontario

Finlayson, Carthy and Simmons JJ.A.

September 15, 2000

Charter of Rights and Freedoms -- Democratic rights -- Statutory provisions prohibiting sitting member of House of Commons from seeking or holding municipal office not violating s. 3 of Charter -- Municipal Act, R.S.O. 1990, c. M.45, s. 37(1), cl. 3 -- Municipal Elections Act, 1996, S.O. 1996, c. 32, Schedule, s. 29(1)(b) -- Canadian Charter of Rights and Freedoms, s. 3.

Section 37(1), cl. 3 of the Municipal Act, R.S.O. 1990, c. M.45 prohibits a sitting Member of Parliament from seeking or holding municipal office. Section 29(1)(b) of the Municipal Elections Act, 1996, S.O. 1996, c. 32 provides that a person may be nominated for an office only if he or she is not ineligible under that or any other Act or otherwise prohibited by law to be nominated for or to hold the office. The appellant, a sitting member of the House of Commons, wished to seek election as Mayor of Toronto. He brought an application for an order of mandamus and other remedies, arguing that s. 37(1), cl. 3 violated his rights under s. 3 of the Canadian Charter of Rights and Freedoms. The application was dismissed. The appellant appealed.

Held, the appeal should be dismissed.

There was nothing in the impugned legislation preventing the appellant from seeking or holding municipal office that in any way impaired his ability to continue to hold his present office as a Member of Parliament. Section 3 of the Charter does not guarantee the right to run for or to hold municipal office. Section 37(1), cl. 3 of the Municipal Act did not violate the appellant's s. 3 right, which was confined to the right to be "qualified for membership" in provincial and federal legislatures. Section 37(1), cl. 3 regulates eligibility for municipal office and does not affect the right to be "qualified for membership" in the House of Commons. The impugned legislation did not violate the appellant's s. 3 Charter rights.

APPEAL from a judgment of the Ontario Divisional Court ((2000), 2000 29033 (ON SCDC), 49 O.R. (3d) 310, 75 C.R.R. (2d) 366) dismissing an application for mandamus, injunction and order quashing s. 29 of the Municipal Elections Act, 1996, S.O. 1996, c. 32, Schedule.

Jones v. Ontario (Attorney General) (1992), 1992 7674 (ON CA), 7 O.R. (3d) 22, 89 D.L.R. (4th) 11, 39 C.C.E.L. 238, 9 M.P.L.R. (2d) 87 (C.A.) (sub nom. Rheaume v. Ontario (Attorney General)), apld Other cases referred to Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995, 105 D.L.R. (4th) 577, 156 N.R. 81, 16 C.R.R. (2d) 193; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Manitoba), 1990 105 (SCC), [1990] 1 S.C.R. 1123, 68 Man. R. (2d) 1, 109 N.R. 81, [1990] 4 W.W.R. 481, 48 C.R.R. 1, 56 C.C.C. (3d) 65, 77 C.R. (3d) 1; Sacco v. Ontario (Attorney General) (1991), 1991 8334 (ON SC), 77 D.L.R. (4th) 764, 3 C.R.R. (2d) D-6 (Ont. Gen. Div.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 3 Municipal Act, R.S.O. 1990, c. M.45, s. 37 Municipal Elections Act, 1996, S.O. 1996, c. 32, Schedule, s. 29

Ronald E. Carr and Peter L. Biro, for appellant. Leslie H. Mendelson, for respondent. Sarah T. Kraicer and Lisa J. Sand, for intervenor.

The judgment of the court was delivered by

FINLAYSON J.A.: --

Overview

[1] This appeal concerns an alleged violation of s. 3 of the Canadian Charter of Rights and Freedoms. The appellant, John Nunziata, is a sitting member of the House of Commons who seeks election to the Office of Mayor of the City of Toronto. Section 37(1), cl. 3 of the Municipal Act, R.S.O. 1990, c. M.45 provides that he cannot seek or hold a municipal office while sitting as a Member of Parliament. He claims s. 37(1), cl. 3 violates his rights under s. 3 of the Charter.

[2] The appellant sought relief from the Divisional Court by way of mandamus, injunction and the quashing of portions of s. 29 of the Municipal Elections Act, 1996, S.O. 1996, c. 32, Schedule, respecting the decision of the Clerk of the City of Toronto to reject his nomination papers for the Office of Mayor. Two questions were asked of the court:

1. Was the Clerk correct in deciding she had a discretion to accept or reject a nomination before nomination day which, by law, is 31 days before voting day?

2. Does s. 37 of the Municipal Act, which declares members of the House of Commons ineligible to be elected a member of council, infringe the appellant's rights under s. 3 of the Charter?

[3] In its judgment of June 16, 2000, the Divisional Court unanimously answered question one in the affirmative [reported 2000 29033 (ON SCDC), 49 O.R. (3d) 310]. A majority of the court upheld the constitutionality of the impugned provision of the Municipal Act and dismissed the application. Leave to appeal to this court was restricted to question two. However, because of the relationship between s. 37 of the Municipal Act and s. 29 of the Municipal Elections Act, this court heard the appeal on question two as if it involved both statutes.

Relevant Sections

[4] Municipal Act:

37(1) The following are not eligible to be elected a member of a council or to hold office as a member of a council:

1. Except during a leave of absence under section 30 of the Municipal Elections Act, 1996, an employee of the municipality or of a local board as defined in the Municipal Affairs Act, other than a person appointed under section 256.

2. A judge of any court.

3. A member of the Assembly as provided in the Legislative Assembly Act or of the Senate or House of Commons of Canada.

4. A Crown employee within the meaning of the Public Service Act who is a deputy minister or who is in a position or classification designated in the regulations made under that Act for the purposes of section 11 thereof.

[5] Municipal Elections Act:

29(1) A person may be nominated for an office only if,

(a) he or she is qualified to hold that office under the Act that creates it; and

(b) he or she is not ineligible under this or any other Act or otherwise prohibited by law to be nominated for or to hold the office.

[6] The Canadian Charter of Rights and Freedoms:

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Analysis

[7] At the opening of the appeal, counsel for the appellant took the position that he was no longer arguing that s. 37(1), cl. 3 of the Municipal Act was unconstitutional for prohibiting the appellant from holding the Office of Mayor while sitting as a Member of Parliament. Counsel stated that the appellant was prepared to resign as a Member of Parliament if he was elected Mayor. This would avoid the problem of having two mandates from two different constituencies.

[8] The appellant now states that he has a Charter-protected right to sit as a Member of Parliament and that it is an encumbrance or coercive burden on that s. 3 right to be deprived of the ability to run for the Office of the Mayor (as opposed to holding the office) while sitting as a Member of Parliament. However, this change of position does not address his basic problem that the Clerk will not accept his nomination papers. It simply shifts the focus from s. 37(1), cl. 3 of the Municipal Act to s. 29(1)(b) of the Municipal Elections Act which expressly provides that a person may be nominated if "he or she is not ineligible under this or any other Act or otherwise prohibited by law to be nominated or to hold the office" (emphasis added).

[9] The appellant repeatedly stressed that as a Member of Parliament he was being deprived of the right, enjoyed by other citizens, to run for municipal office. He submitted that the effect of this loss was to diminish or burden his Charter- protected right to sit as a Member of Parliament. However, there is nothing in the impugned legislation preventing the appellant from seeking or holding municipal office that in any way impairs the appellant's ability to continue to hold his present office as a Member of Parliament.

[10] The basic difficulty the appellant has is that while he has a constitutionally protected right to remain in Parliament until the next election, the "right" to run for municipal office, which the impugned legislation prevents, is not a constitutionally protected right, and therefor an infringement of that right does not raise a constitutional issue. The wording of s. 3 of the Charter is clear: it protects only the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. There is nothing in the provisions of the Municipal Act and the Municipal Elections Act which in any way intrude on the appellant's right to continue to sit in the House of Commons. The wording of s. 3 of the Charter restricts the right to those that concern the federal and provincial legislatures.

[11] The words "legislative assembly" have been considered by this court in Jones v. Ontario (Attorney General) (1992), 1992 7674 (ON CA), 7 O.R. (3d) 22, 89 D.L.R. (4th) 11. In Jones this court said at p. 26, "that s. 3 of the Charter, the right of a citizen, inter alia, to vote or to be qualified for membership in the House of Commons or in a legislative assembly, does not apply to municipal councils." In Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995 the Supreme Court of Canada also confirmed that s. 3 has no application to municipal elections, and there is no constitutional right to be qualified for membership to a municipal elected body. As L'Heureux-Dubé J. stated at p. 1031:

The wording of the section, as is immediately apparent, is quite narrow, guaranteeing only the right to vote in the elections of representatives of the federal and the provincial legislative assemblies. As Professor Peter Hogg notes in Constitutional Law of Canada, (3rd ed. 1992), vol 2 at p. 42-2, the right does not extend to municipal elections or referenda.

(See also Jones v. Ontario (Attorney General), supra, at p. 26 and Sacco v. Ontario (Attorney General) (1991), 1991 8334 (ON SC), 77 D.L.R. (4th) 764 (Ont. Gen. Div.) at p. 767).

[12] The majority of the Divisional Court correctly upheld the constitutionality of the impugned provision of the Municipal Act. Section 3 of the Charter does not guarantee rights to run for or to hold municipal office. Section 37(1), cl. 3 of the Municipal Act does not violate the appellant's s. 3 Charter right, which is confined to the right to be "qualified for membership" in provincial and federal legislatures. Section 37(1), cl. 3 regulates eligibility for municipal office, and does not affect the right to "be qualified for membership" in the House of Commons.

[13] It remains undisputed that the appellant may run for Mayor if he resigns his seat as a Member of Parliament. I find no merit in the appellant's submission that there exists a coercive burden that constitutes a s. 3 Charter breach. If the underlying concern is the appellant's job security or his right to pursue a livelihood or profession, then these rights are not protected by the Charter: Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Manitoba), 1990 105 (SCC), [1990] 1 S.C.R. 1123 at pp. 1170-71, 56 C.C.C. (3d) 65.

[14] In view of these findings, it is not necessary to consider s. 1 of the Charter. I would dismiss the appeal and invite counsel to submit in writing submissions as to costs, including the costs of the motion for leave to appeal.

Appeal dismissed.