DATE: 20010628 DOCKET: C36378

COURT OF APPEAL FOR ONTARIO

ROSENBERG, GOUDGE, and SIMMONS JJ.A.

B E T W E E N:

CHRISTOPHER RAMSAROOP

Tim Pinos and Michele A. Wright for the appellant

Applicant

(Respondent in the Appeal)

• and -

UNIVERSITY OF TORONTO AND THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO

Murray Klippenstein for the respondent

Respondents (Appellants)

Heard: June 22, 2001

On appeal from the judgment of Justice Theodore P. Matlow dated March 7, 2001.

SIMMONS J.A.:

[1] Christopher Ramsaroop is a former president of the Students’ Administrative Council of the University of Toronto. On January 26th, 2001 he enrolled as a part-time student at the university. He filed nomination papers seeking to run for a position on the university’s Governing Council on the same day.

[2] The Chief Returning Officer rejected Mr. Ramsaroop’s nomination based on a provision of the Election Guidelines enacted by the Governing Council, which requires that a candidate be “a member of the constituency in which he or she is nominated throughout the election period.” There is no dispute that the election period began on January 15th, 2001, being the first day for filing nominations. Mr. Ramsaroop clearly did not meet this requirement.

[3] On an application for judicial review brought by Mr. Ramsaroop, a single judge of the Superior Court quashed the decision of the Chief Returning Officer. The judge found that the provision in the Election Guidelines which requires a candidate to be a member of his constituency “throughout the election period”, conflicts with a section in The University of Toronto Act, 1971 [^1] which provides that “[e]very student is eligible for election to the Governing Council whether or not he has attained the age of eighteen years.” The judge declared the offending portion of the Election Guidelines provision to be of no force and effect. The Governing Council of the University of Toronto appeals from that decision.

Background

[4] Mr. Ramsaroop was enrolled at the University of Toronto as a full-time student from September 1993 through to April 1998. He was elected as President of the Students’ Administrative Council in April 1998. He served in that position on a full-time basis for one year.

[5] At the beginning of 2001 Mr. Ramsaroop decided to enrol at the university as a part-time student and take one of the two courses he still requires to complete his degree. Due to financial constraints and the eventual need to obtain a grant from the university, Mr. Ramsaroop was unable to enrol until January 26th, 2001, which was also the last day for filing nominations for election to student positions on the Governing Council.

[6] The Chief Returning Officer wrote to Mr. Ramsaroop on January 30th, 2001. She advised him that his “nomination form for the part-time undergraduate student constituency ha[d] been invalidated because [he was] not a member of that constituency at the beginning of the nomination period…” She added: “[t]his is a technical invalidation and is not open to appeal.”

[7] The Governing Council of the University of Toronto is constituted under The University of Toronto Act, 1971. It is composed of 50 members who are elected or appointed from particular constituencies such as teaching staff, administrative staff, full-time undergraduate students, part-time undergraduate students. Relevant sections of the Act relating to the Governing Council include the following:

(4) No person shall serve as a member of the Governing Council unless he is a Canadian citizen.

(5) Every student is eligible for election to the Governing Council whether or not he has attained the age of eighteen years.

(8) A member of the governing Council appointed by the President or elected ceases to hold office if he ceases to be eligible under the clause under which he was appointed or elected.

(14) the government, management and control of the University… and of the property, revenues, business and affairs thereof, … are vested in the Governing Council, and, without limiting the generality of the foregoing, the Governing council has power to,

(nb) determine the manner and procedure of election of its members, …

(nc) determine whether any person …is or are a student or students, and if a student or students, whether full-time graduate, part-time graduate, full-time undergraduate or part-time undergraduate;

(o) do all such act and things as are necessary or expedient for the conduct of its affairs and the affairs of the University…

[8] The Governing Council has set out procedures to govern the election of its members in Election Guidelines, first promulgated in 1972. It approved the current Election Guidelines on December 14, 2000. Relevant provisions include the following:

Chapter I – AUTHORITY FOR THE CONDUCT OF ELECTIONS

1. In the event of any conflict between these Guidelines and the provisions of the University of Toronto Act, 1971 as amended, the provisions of the Act prevail.

Chapter IV - REGULATIONS

a) Nominations

ii) Eligibility of Candidate

A candidate must be a Canadian citizen and a member of the constituency in which he or she is nominated throughout the election period. …

xii) Technical Invalidation

Despite the existence of the correction procedure, nomination papers which are obviously in error or on their face are not appropriately verifiable or are not accompanied by the other papers required by these Guidelines and by the Chief Returning Officer will be automatically invalidated on technical grounds by the Chief Returning officer. Such decision will be final. The correction period detailed in section xii) does not apply.

Judicial Review Application

[9] Leave was granted for Mr. Ramsaroop’s application for judicial review to be heard by a single judge of the Superior Court based on urgency, in accordance with s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

[10] Mr. Ramsaroop’s sole submission on the application for judicial review was that the provision of the Election Guidelines, which effectively requires a student to be registered as a student as of a certain date prior to the nomination deadline, conflicts with the broad eligibility right established by s. 2(5) of The University of Toronto Act, 1971, and therefore cannot stand.

[11] The presiding judge explained his reasons for granting the application as follows:

[10] …I am persuaded that the alleged conflict exists and that the eligibility provision in the Act must take precedence over that contained in the Guidelines. The authority conferred upon the Governing Council by section 2 (14) (nb) of the Act does not include the authority to restrict the broad and unqualified provision regarding eligibility clearly and unambiguously set out in the Act. It follows, in my view, that every person who is a student at any time during the period when nominations were open and files his nomination form within that period is entitled to be a candidate for election.

[11] A statutory right to stand for election, in the context of this case, is a right to participate in the democratic process by which The University of Toronto is governed. It reflects the will of the Legislature and it cannot be varied or restricted in any way by a measure taken by the Governing Council without statutory authority.

Analysis

[12] I respectfully disagree with the Superior Court judge’s conclusion that there is a conflict between Chapter IV (a) (ii) of the Election Guidelines and s. 2(5) of The University of Toronto Act, 1971. In reaching the conclusion that a conflict exists, The Superior Court judge appears, in paragraph 10 of his Reasons, to have equated the concepts of eligibility and entitlement. In my opinion, s. 2(5) of the Act is restricted on its face to eligibility and does not address the concept of entitlement.

[13] Chapter IV (a) (ii) of the Election Guidelines is a provision aimed primarily at establishing a connection with one’s constituency. It is rationally connected with the power of the Governing Council to determine the manner and procedure of elections pursuant to s. 14 (nb) of the Act. I do not see any conflict between that provision and the eligibility provision contained in s. 2(5) of the Act.

[14] In my view, although “eligible” clearly signifies that a candidate is able to run for office, it does not also imply entitlement. In other words, it does not mean that someone who is eligible to be a candidate under s.2(5) is thereby entitled to be a candidate whether or not that person meets other properly set criteria.

[15] “Eligible”, as defined in the Oxford English Dictionary 1999, means “fit or proper to be chosen (for an office or position).” Black’s Law Dictionary, 7th ed., lists that meaning as well as: “legally qualified for an office, privilege or status”. Notably, neither meaning connotes creation of entitlement, or of a right.

[16] These dictionary definitions are consistent with prior judicial interpretation of the concept of eligibility. Horridge J. stated the following, in Morriss v. Winter, [1930] 1K.B. 243:

I think the question is a difficult one, but I have come to the conclusion that if it was intended to confer a legal right on prisoners clearer and stronger words than “eligible for remission” would have been used. The statute itself only enacts that rules may be made, and rr. 36 and 37 (A) do not say, as they might have done, that the prisoners shall be entitled to a remission.

[17] The fact that the Governing Council is given specific power by s. 14 (nb) of the Act “to determine the manner and procedure of election of its members” also supports the proposition that s. 2(5) of the Act is not an entitlement section. Of necessity, virtually any procedural rule governing the conduct of an election will derogate to some degree from any entitlement a person has to be a candidate for office [^2]. The Legislature cannot be presumed to have given on the one hand that which it allows to be diminished on the other.

[18] Mr. Ramsaroop submitted in this court that the requirement that a student be registered on or before an arbitrary date prior to the nomination deadline is not rationally connected with the power afforded to the Governing Council by s. 14 (nb) of the Act to “determine the manner and procedure of election of its members”. He submitted that this requirement is distinguishable from other requirements in the Election Guidelines, both in terms of its connection with the powers of the Governing Council and in terms of conflict with s. 2(5) of the Act, because it focuses on the status of a person as a student whereas the other requirements address what are clearly election procedures.

[19] Again, I disagree. The Act specifically addresses the specific constituencies the Governing Council is intended to reflect and spells out the required representation from each constituency. A mechanism for establishing sufficient connection with a particular constituency to permit a candidate to represent it is therefore an essential component of election procedure. The gravamen of the impugned provision is connection with a constituency, not status as a student. As such, it falls squarely within, and is rationally connected to, the power of the Governing Council. Moreover, it does not in any way conflict with s. 2(5) of the Act, which confirms the eligibility of every student to be elected as a member of the Governing Council, but does not address how a sufficient connection with a particular constituency is to be established.

[20] In these circumstances, it is unnecessary that I determine whether the decision of the Chief Returning Officer is entitled to deference. It follows, that in my view, there was no basis for interfering with the decision of the Chief Returning Officer or for declaring a portion of the Election Guidelines to be invalid. I would accordingly allow the appeal and dismiss the application for judicial review.

Released: June 28, 2001 “M.R.”

“J. Simmons J.A.”

“I agree M. Rosenberg J.A.”

“I agree S.T. Goudge J.A.”

[^1]: The University of Toronto Act, 1971, c. 56, as amended 1978, c. 88. [^2]: For example, a requirement that a candidate have a minimum number of nominators.