DATE: 20030109

DOCKETS: C37783 and C38481

COURT OF APPEAL FOR ONTARIO

CATZMAN, ABELLA and CHARRON JJ.A.

B E T W E E N:

KEN AUDZISS, KEN GRIEVE, KEN SAWICKI, LEONARD ARNONE and ROD MUIR

Michael Cupello, for the applicants (appellants)

Applicants (Appellants)

• and -

ORVILLE SANTA

Francis J. Thatcher and Mary D. Bird, for the respondent (respondent)

Respondent (Respondent)

AND BETWEEN:

KENNETH AUDZISS

Appellant (Respondent) (Respondent in Cross-Appeal)

Michael Cupello, for the respondent (appellant)

• and -

ORVILLE SANTA and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Respondents (Applicant/Respondent) (Appellant in Cross-Appeal)

Francis J. Thatcher and Mary D. Bird, for the applicant (respondent) Orville Santa

Heard: October 7, 2002

On appeal from the order of Justice G. Patrick Smith of the Superior Court of Justice dated January 29, 2002 and from the order of Justice Helen Pierce dated May 28, 2002.

CHARRON J.A.:

[1] These two appeals raise issues related to an elector’s right to challenge an elected municipal official in respect of his election campaign finances. In the first proceeding, Ken Audziss and four other electors brought an application in the Superior Court under the Municipal Elections Act 1996, S.O. 1996, c. 32 (the “MEA”) for an order, among other relief, that Orville Santa, a municipal councillor for the City of Thunder Bay, forfeit his seat on the ground that he had contravened certain provisions of the MEA governing election campaign finances. That application was stayed by Smith J. on the basis that the court had no jurisdiction to grant the requested remedy. Ken Audziss then swore an information against Santa in the Ontario Court of Justice based on the same alleged contraventions of the MEA. In the second proceeding, on application by Santa for certiorari and prohibition, the process issued by the justice of the peace compelling Santa to appear in the Ontario Court of Justice in answer to the charges, was quashed by order of Pierce J.

[2] The electors appeal from the stay of their application under the MEA. Audziss appeals from the order quashing the summons issued by the justice of the peace and seeks leave to appeal from the costs order in that proceeding. Santa seeks leave to cross-appeal on the issue of costs in both proceedings.

[3] The question central to both appeals is whether the election campaign finance provisions of the MEA constitute a complete code of procedure pursuant to which the right to commence proceedings is reserved to the municipal council, and an elector’s remedy is limited to judicial review of a council’s refusal to take action. In my view, the MEA does so constitute a complete code of procedure. Consequently, I see no reason to interfere with the result in both proceedings under appeal. I am also of the view that there is no basis to interfere with the costs awards in either proceeding. I would therefore dismiss the two appeals and the cross-appeal. I will deal with each proceeding in turn and then deal with the issue of costs.

I. The Application for relief under the MEA and the Municipal Act

[4] Orville Santa was elected councillor for the Red River Ward in the City of Thunder Bay at the election held on November 13, 2000. Ken Audziss and the other appellants were electors in that election. On April 2, 2001, Santa filed a financial statement with the clerk of the municipality with respect to his election campaign finances, as he is required to do under s.78 of the MEA. A candidate who fails to file a financial statement in accordance with the requirements of the Act is subject to a number of penalties under s.80:

80. (1) A candidate is subject to the penalties listed in subsection (2), in addition to any other penalty that may be imposed under this Act, if,

(a) he or she fails to file a document as required under section 78 by the relevant date;

(b) a document filed under section 78 shows a surplus, as described in section 79, and the candidate fails to pay the amount required by section 79 to the clerk by the relevant date; or

(c) a document filed under section 78 shows on its face that the candidate has incurred expenses exceeding what is permitted under section 76. 1996, c. 32, Sched., s. 80 (1).

(2) The following penalties apply:

1. The candidate forfeits any office to which he or she was elected and the office shall be deemed to be vacant.

2. Until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies. 1996, c. 32, Sched., s. 80 (2).

[5] Audziss examined the financial statement filed by Santa and formed the opinion that Santa had exceeded the statutory limit on his election campaign expenses and was therefore subject to these penalties. On April 20, 2001, Audziss therefore filed a request with the clerk requesting a compliance audit under s.81 of the MEA. As s. 81 is central to this appeal, I set out the full text for ease of reference.

81. (1) An elector who is entitled to vote in an election and believes on reasonable grounds that a candidate has contravened a provision of this Act relating to election campaign finances may apply for a compliance audit of the candidate’s election campaign finances. 1996, c. 32, Sched., s. 81 (1).

(2) The application shall be made to the clerk of the municipality or the secretary of the local board for which the candidate was nominated for office, within 90 days after the filing date or the candidate’s supplementary filing date, if any; it shall be in writing and shall set out the reasons for the elector’s belief. 1996, c. 32, Sched., s. 81 (2).

(3) Within 30 days after receiving the application, the council or local board, as the case may be, shall consider the application and decide whether it should be granted or rejected. 1996, c. 32, Sched., s. 81 (3).

(4) If the council or local board decides to grant the application it shall, by resolution, appoint an auditor to conduct a compliance audit of the candidate’s election campaign finances. 1996, c. 32, Sched., s. 81 (4).

(5) Only an auditor who is licensed under the Public Accountancy Act may be appointed under subsection (4). 1996, c. 32, Sched., s. 81 (5).

(6) An auditor appointed under subsection (4) shall promptly conduct an audit of the candidate’s election campaign finances to determine whether he or she has complied with the provisions of this Act relating to election campaign finances and prepare a report outlining any apparent contravention by the candidate. 1996, c. 32, Sched., s. 81 (6).

(7) The auditor shall submit the report to,

(a) the candidate;

(b) the council or local board;

(c) the clerk with whom the candidate filed his or her nomination; and

(d) the applicant. 1996, c. 32, Sched., s. 81 (7).

(8) For the purpose of the audit, the auditor,

(a) is entitled to have access, at all reasonable hours, to all relevant books, papers, documents or things of the candidate and of the municipality or local board; and

(b) has the powers of a commission under Part II of the Public Inquiries Act, which Part applies to the audit as if it were an inquiry under that Act. 1996, c. 32, Sched., s. 81 (8).

(9) The municipality or local board shall pay the auditor’s costs of performing the audit. 1996, c. 32, Sched., s. 81 (9).

(10) The council or local board shall consider the report within 30 days after receiving it and may commence a legal proceeding against the candidate for any apparent contravention of a provision of this Act relating to election campaign finances. 1996, c. 32, Sched., s. 81 (10).

(11) If the report indicates that there was no apparent contravention and the council or local board finds that there were no reasonable grounds for the application, the council or local board is entitled to recover the auditor’s costs from the applicant. 1996, c. 32, Sched., s. 81 (11).

(12) No action or other proceeding for damages shall be instituted against an auditor appointed under this section for any act done in good faith in the execution or intended execution of the audit or for any alleged neglect or default in its execution in good faith. 1996, c. 32, Sched., s. 81 (12).

[6] The city council voted on the matter on May 7, 2001 and rejected Audziss’ application for a compliance audit. Audziss, together with the other appellants, then brought this application before the Superior Court of Justice seeking various relief under both the MEA and the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50. The application under the Municipal Conflict of Interest Act is not the subject-matter of this appeal and no further reference will be made to that part of the application.

[7] The appellants purported to bring their application under s. 83 of the MEA which reads as follows:

83. (1) A person who is entitled to vote in an election may make an application to the Ontario Court (General Division) requesting that it determine,

(a) whether the election is valid;

(b) whether a person’s election to an office in the election is valid;

(c) if a person’s election to an office is not valid, whether another person was validly elected or is entitled to the office;

(d) if an election is not valid or a person’s election to an office is not valid, whether a by-election should be held. 1996, c. 32, Sched., s. 83 (1).

[8] The appellants sought the following relief before the Superior Court:

(a) An order pursuant to s. 80(2) of the Municipal Elections Act that the councillor forfeit the office of councillor to which he was elected;

(b) A declaration that the seat held by the councillor be declared vacant;

(c) An order that councillor Santa is ineligible to be elected or appointed to any office to which the Municipal Elections Act applies, until after the next regular election has taken place;

(d) A declaration that the councillor has contravened ss. 76(4) of the Municipal Elections Act;

(e) A declaration that the councillor has contravened ss. 78(1) of the Municipal Elections Act;

(f) An order requiring the councillor to file with the clerk of the Corporation of the City of Thunder Bay an Auditor’s Report, in the prescribed form, reflecting the candidate’s election campaign finances;

(g) An order requiring the respondent to deliver a sworn affidavit of documents in accordance with the Rules of Civil Procedure;

(h) An order granting leave to conduct examination for discovery of the respondent; and

(i) An order requiring the respondent to submit to an audit by the applicants’ auditor, who shall have the power and authority as set forth at ss. 81(8) of the Municipal Elections Act.

[9] In an amended application, the appellants also sought a declaration that the respondent’s seat as a councillor be declared vacant pursuant to the following general provision contained in the Municipal Act, R.S.O. 1990, c. M.45:

44. (1) Any elector entitled to vote at the election of members of a council may commence an application in the Ontario Court (General Division) for a declaration that the office of a member of such council has become vacant in accordance with this Act.

[10] It is important to note that the Municipal Act does not contain any provisions relating to election campaign finances and the appellants did not rely on any specific provisions of that Act.

[11] Santa brought a motion under s.106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 for a stay of the application under the MEA and the Municipal Act on the ground that the clerk and the municipal council have the exclusive authority to determine whether a candidate is in violation of the campaign expenditure provisions of the MEA. Based on the reasoning of the Divisional Court in Rayside v. Ontario (Commission on Election Finances) (1992), 1992 7489 (ON SC), 10 O.R. (3d) 287 and a review of the MEA, the applications judge concluded that the court had no jurisdiction under that statute to entertain the appellants’ application. The Divisional Court in Rayside had considered an elector’s right to bring an action to contest the campaign expenditures of a candidate under the predecessor legislation and had concluded that there was no such right. The applications judge held that the reasoning in Rayside was equally applicable to the current legislative scheme. He held further that the specific provisions of the MEA relating to election campaign finances prevailed over the more general provisions under the Municipal Act. Consequently, Santa’s motion was granted by Smith J. on January 24, 2002 and the application under both those statutes was stayed.

[12] The appellants do not contest the correctness of the Divisional Court’s decision in Rayside. They submit, rather, that the analysis in that case no longer applies to the current version of the MEA. In order to better understand their position, it is necessary to review the decision of the Divisional Court in some detail.

[13] In Rayside, a similar issue arose under the immediate predecessor to the MEA, the 1990 version of the Municipal Elections Act (the “1990 MEA”). In that case, an elector brought an action under s. 122 of the 1990 MEA for a declaration that the election of a municipal councillor was null and void, and for an order removing her from office on the ground that she had incurred campaign expenses in excess of the amount permitted by the Act. The trial judge held that the councillor had contravened the election campaign finance provisions of the statute and consequently declared the election void, removed the official from office and ordered that a by-election be held to fill the vacancy. This decision was overturned on appeal to the Divisional Court. Among other things, the Divisional Court held that there was no evidence to support the finding that the councillor had exceeded the permissible limit on her expenses. This finding, however, had no bearing on the court’s reasoning on the jurisdictional issue.

[14] On the jurisdictional issue, the Divisional Court held firstly that an elector has no inherent right to apply to the court to have a seat of a municipal councillor declared vacant and held that the right of an elector to make such an application must be expressly provided by statute: see R. v. Skelton (1911), 23 O.L.R. 182 (H.C.J.), per Middleton J. at p. 185; R. v. Curry (1919), 46 O.L.R. 297 (Ont.Sup.Ct. H.C.Div.), per Masten J. at p. 304. The elector took the position that the necessary statutory authorization could be found in s. 122 of the 1990 MEA which gave an elector the right to commence an action to contest the validity of an election or to determine whether any person is guilty of a corrupt practice respecting an election. Section 122 read as follows:

122.(1) The validity of an election or of the election of any person to any office at such an election or whether or not any person is guilty of a corrupt practice respecting an election shall be tried and determined by an action commenced in the Ontario Court (General Division).

(2) Where the court determines that a person has committed a corrupt practice, it may, in addition to any other penalty, impose the penalties provided therefor under sections 112 to 118.

(3) Any elector entitled to vote at an election referred to in subsection (1) may commence an action under this section in relation to such election.

(4) No action shall be commenced after the expiration of ninety days following the date of the poll at the election referred to in subsection (1).

[15] The Divisional Court reviewed the history of the legislative regulation of campaign expenditures. That history is helpful in understanding the background to the legislative scheme under the current MEA. I therefore set out that part of the analysis in Rayside at pp. 291-93:

The earliest predecessor to the MEA received royal assent on June 30, 1972 [Municipal Elections Act, 1972, S.O. 1972, c. 95] …

The 1977 amendments [Municipal Elections Act, 1977, S.O. 1977, c. 62] first introduced the regulation of election finances. That Act conferred upon the municipalities the power to pass a by-law limiting election expenditures and requiring the disclosure of election contributions.

The Municipal Elections Amendment Act, 1982 (No. 2) S.O. 1982, c. 37 (the “1982 Act”), set out the specific terms that a municipality’s election finances by-law could contain but reserved to the municipality the decision of whether to pass a by-law.

The election finances by-law under the 1982 Act required, inter alia, that each candidate file a report containing disclosure of contributions, contributors and expenses with the clerk of the municipality within 90 days of the date of the election.

In the 1982 Act, a contravention of the election finances by-law passed by a municipality was deemed to be a corrupt practice. The 1982 Act further provided that an action by an elector as to whether or not a person was guilty of the corrupt practice of contravening the by-law could be commenced up to 180 days (rather than 90 days in the case of other corrupt practices) following the date of the election, thus allowing an elector time to bring an action after the filing by a candidate of the report with the clerk. In other words, the 1982 Act provided a mechanism whereby an elector could challenge an election on the basis of campaign expenses.

The provisions providing for the passing by a municipality of the election finance by-law, the deeming of a contravention of the by-law to be a corrupt practice and the right of an elector to bring an action in respect of such contravention up to 180 days after the election were repealed coincident with the coming into force of Parts II and III of the current MEA. The reduction of the time limit in which an elector could commence an action from 180 to 90 days, coincident with an extension of the time limits respecting candidate filings of financial statements can only be viewed as a conscious effort on the part of the Legislature to exclude electors from challenging the propriety of elections on the basis of the information contained in the financial statements. The disharmony created by the changes to the legislation makes it all but impossible for an elector to mount a challenge on the basis of election finances.

Accordingly, with the coming into force of Parts II and III of the MEA, an elector’s right to bring an action in respect of campaign contributions and expenditures was terminated.

[16] The Divisional Court then considered Parts II and III of the 1990 MEA which both contained provisions with respect to election campaign finances. Under that legislative scheme, unless a municipality passed a by-law opting into Part III, only Part II applied to its elections. If a municipality opted into Part III, the Commission on Election Finances (“the Commission”) became involved. The Commission was a statutory body created to ensure adherence to campaign contribution and expenditure limits and disclosure procedures in respect of provincial elections. Under Part III of the 1990 MEA, the Commission was incorporated by reference as having the same powers and duties in respect of municipal elections. The municipality in question in Rayside had chosen to have Part III apply to its elections.

[17] Provision was made in Part II of the 1990 MEA for an elector to request a compliance audit, in much the same terms as found under the current MEA. Unlike the current statute, however, the 1990 MEA provided for a right of appeal to the Commission from a rejection by council of an elector’s application for a compliance audit. Further, under the 1990 MEA no prosecution could be instituted in respect of alleged contraventions of the election campaign finance provisions without the consent of the Commission. The Divisional Court concluded that the Legislature, in enacting Parts II and III of the 1990 MEA, intended to give exclusive jurisdiction to the Commission in the regulation of campaign expenditures. Consequently, an elector’s private action under s. 122 could not be brought in respect of an official’s election campaign finances. The only remedy available to an elector who was refused an audit by the Commission was to apply for judicial review of that decision. Rayside’s action was therefore dismissed.

[18] The appellants argued in this case that, because the Commission was abolished when the current version of the MEA was passed in 1996, the legislative scheme essentially reverted back to the pre-Commission days when, as stated in Rayside, “the 1982 Act provided a mechanism whereby an elector could challenge an election on the basis of campaign expenses.” The applications judge in this case rejected this argument and stated as follows at paras. 14-17:

[14] A comparison of the Municipal Elections Act, R.S.O. 1990 and the Municipal Elections Act, 1996 indicates that the legislation is similar in nature. The Commission on Election Finances is abolished but the 1996 amendments carry forth the substance of the 1990 statute.

[15] In my opinion, the legislature of the province of Ontario has delegated authority for making the decision as to whether to require a compliance audit of a candidate’s election campaign finances exclusively to the council of a municipality pursuant to Section 81(3) of the Municipal Elections Act, 1996.

[16] Section 81(10) of the Municipal Elections Act, 1996 delegates the authority to a city council to commence legal proceedings against a candidate for any apparent contravention of a provision of this Act relating to election campaign finances.

[17] Therefore, based on the reasoning of the Rayside case and a review of the Municipal Elections Act 1996, I find that this court has no jurisdiction to entertain the application before it only so far as it pertains to the Municipal Elections Act 1996. Without jurisdiction a court cannot grant a remedy. Without the ability to grant a remedy proceedings before the court are without foundation.

[19] I agree with the analysis in Rayside. I also agree with the applications judge’s conclusion in this case that the 1990 legislative scheme considered by the Divisional Court was substantially carried forth in the current MEA. The general right of an elector to contest the validity of an election set out in s. 122 of the 1990 MEA, which was found by the Divisional Court in Rayside not to provide statutory authority for an elector to challenge a candidate’s campaign finances, has been carried over in s. 83 of the MEA. The provisions relating to the compliance audit remain essentially the same. An elector who is entitled to vote in an election and believes on reasonable grounds that a candidate has contravened a provision of the MEA relating to election campaign finances may apply to the clerk of a municipality for a compliance audit of the candidate’s election campaign finances. The council or local board of a municipality may accept or reject the application. If the application is accepted and a compliance audit is conducted, the authority to commence legal proceedings against a candidate or official for any apparent contravention of the MEA relating to election campaign finances rests with council of the municipality under s. 81(10). The only material distinction between the 1990 MEA and the current legislative scheme is that the 1990 MEA provided a right of appeal to the Commission from council’s rejection of the elector’s application. The Commission’s decision was then subject to judicial review. In the current legislative scheme, there is no Commission or right of appeal but the availability of judicial review in respect of council’s decision is nonetheless available. See MacPump Developments Ltd. v. Sarnia (City) (1994), 1994 3448 (ON CA), 20 O.R. (3d) 755 (C.A.) on the right to judicial review of a decision of a municipal council made in the exercise of a statutory power. Hence, from the elector’s point of view, the right to challenge a municipal official in respect of election campaign finances remains effectively the same. The elector can apply to the clerk of the municipality for a compliance audit and the rejection of his or her application is subject to judicial review.

[20] In my view, the legislative scheme with respect to election campaign finances would be redundant, if not defeated, if a parallel private right to bring an application based on the same alleged contraventions were to be maintained under the general right to contest the validity of an election under s. 83. The relief sought by the appellants on their application was no different than that available under the MEA had council chosen to conduct a compliance audit. Further, it is my view that s. 44 of the Municipal Act does not provide a basis for bringing this application. It gives an elector the right to “commence an application … for a declaration that the office of a member of … council has become vacant in accordance with this Act.” None of the grounds relied on by the appellants for seeking such a declaration is contained in the Municipal Act.

[21] For these reasons, I would conclude that the appellants had no standing to bring this application. I see no merit to their further argument that the applications judge should nonetheless have granted them declaratory relief. I would therefore dismiss their appeal from the stay entered by Smith J.

II. The Application for Certiorari and Prohibition

[22] The stay in the above-noted application was entered on January 24, 2002. Several weeks later, on March 4, 2002, Audziss swore a private information before a justice of the peace stating that he had reasonable and probable grounds to believe that Santa contravened sections 69(1)(c), 69(1)(d), 69(1)(k), 76(4), 78(1) and 89(h) of the MEA. The justice of the peace issued a summons under s. 24 of the Provincial Offences Act R.S.O. 1990, c. P.33 (the “POA”). The offence provisions in question and other relevant provisions of the MEA and the POA read as follows:

Relevant offence provisions under the MEA

69. (1) A candidate shall ensure that,

(c) all payments for expenses are made from the campaign accounts;

(d) contributions of goods or services are valued;

(k) financial filings are made in accordance with section 78;

s.76(4) During the period that begins on the day a candidate is nominated under section 33 and ends on voting day, his or her expenses shall not exceed an amount calculated in accordance with the prescribed formula.

78. (1) On or before the filing date, a candidate shall file with the clerk with whom the nomination was filed a financial statement and auditor’s report, each in the prescribed form, reflecting the candidate’s election campaign finances,

(a) in the case of a regular election, as of December 31 in the year of the election; and

(b) in the case of a by-election, as of the 45th day after voting day. 1996, c. 32, Sched., s. 78 (1); 2000, c. 5, s. 35 (1)

89. A person is guilty of an offence and liable, on conviction, to a fine of not more than $5,000, if he or she,

(h) furnishes false or misleading information to a person whom this Act authorizes to obtain information

90. (1) If, when a person is convicted of an offence under section 89, the presiding judge finds that the offence was committed knowingly, the offence also constitutes a corrupt practice and the person is liable, in addition to any other penalty, for imprisonment for a term of not more than six months. 1996, c. 32, Sched., s. 90 (1).

91. (1) If a candidate is convicted of a corrupt practice under this Act, or of an offence under the Criminal Code (Canada) in connection with an act or omission that relates to an election to which this Act applies,

(a) any office to which he or she was elected is forfeited and becomes vacant; and

(b) he or she is ineligible to be nominated for or elected or appointed to any office until the sixth anniversary of voting day. 1996, c. 32, Sched., s. 91 (1).

(2) However, if the presiding judge finds that the candidate committed the corrupt practice without any intent of causing or contributing to a false outcome of the election, clause (1) (b) does not apply. 1996, c. 32, Sched., s. 91 (2).

92. (1) A corporation or trade union that contravenes any of sections 70 to 76 is guilty of an offence and, on conviction, is liable to a fine of not more than $25,000. 1996, c. 32, Sched., s. 92 (1).

(2) An individual who contravenes section 69 or 70 or any of sections 73 to 79 is guilty of an offence and on conviction is liable to a fine of not more than $5,000. 1996, c. 32, Sched., s. 92 (2).

(3) If the expenses incurred by or on behalf of a candidate exceed the amount determined for the office under section 76, the candidate is liable to a fine equal to the excess, in addition to the fine set out in subsection (2). 1996, c. 32, Sched., s. 92 (3).

(4) No prosecution for a contravention of any of sections 69 to 79 shall be commenced more than one year after the facts on which it is based first came to the informant’s knowledge. 1996, c. 32, Sched., s. 92 (4).

(5) A candidate is guilty of an offence and, on conviction, in addition to any other penalty that may be imposed under this Act, is subject to the penalties described in subsection 80 (2), if he or she,

(a) files a document under section 78 that is incorrect or otherwise does not comply with that section; or

(b) incurs expenses that exceed what is permitted under section 76. 1996, c. 32, Sched., s. 92 (5).

(6) However, if the presiding judge finds that the candidate, acting in good faith, committed the offence inadvertently or because of an error in judgment, the penalties described in subsection 80 (2) do not apply. 1996, c. 32, Sched., s. 92 (6).

94. A person who contravenes a provision of this Act is guilty of an offence and, if no other penalty is provided is liable, on conviction, to a fine of not more than $5,000. 1996, c. 32, Sched., s. 94.

Relevant provisions of the POA

1. (1) In this Act,

“justice” means a provincial judge or a justice of the peace; (“juge”)

“offence” means an offence under an Act of the Legislature or under a regulation or by-law made under the authority of an Act of the Legislature; (“infraction”)

23. (1) Any person who, on reasonable and probable grounds, believes that one or more persons have committed an offence, may lay an information in the prescribed form and under oath before a justice alleging the offence and the justice shall receive the information.

24. (1) A justice who receives an information laid under section 23 shall consider the information and, where he or she considers it desirable to do so, hear and consider in the absence of the defendant the allegations of the informant and the evidence of witnesses and,

(a) where he or she considers that a case for so doing is made out,

ii) issue a summons in the prescribed form

140. (1) On application, the Superior Court of Justice may by order grant any relief in respect of matters arising under this Act that the applicant would be entitled to in an application for an order in the nature of mandamus, prohibition or certiorari.

[23] On April 2, 2002, Santa made an application under s. 140 of the POA for an order quashing the summons issued by the justice of the peace. His application was granted by Pierce J. on May 28, 2002. The applications judge was of the view that an order in the nature of certiorari and prohibition should be issued for three reasons: (a) the justice of the peace did not have jurisdiction to issue process because he did not have the jurisdiction to try the offences in question; (b) under s. 81(10) of the MEA, the council or local board of a municipality had the sole authority to allege a contravention of the election campaign finance provisions of the statute; and (c) the laying of the information by Audziss constituted a collateral attack on the decision of Smith J. Consequently, the applications judge quashed the summons issued by the justice of the peace and issued an order prohibiting any justice of the peace from hearing allegations concerning the matter.

[24] In my view, there was no basis for making an order in the nature of prohibition. If I understand the reasons of the applications judge correctly, that part of the order appears to have been based on the belief that the justice of the peace, in issuing process, was in effect taking a first step in exercising jurisdiction to try the offences. The applications judge held that the justice of the peace did not have the jurisdiction to issue process in this matter because only a judge could try offences under the MEA. In my respectful view, the applications judge failed to appreciate that the POA clearly gives a justice of the peace authority to issue process in relation to any provincial offence, whether or not the justice of the peace has the jurisdiction to try that offence. Hence, that part of the order prohibiting any justice of the peace from, in effect, trying the matter that was the subject-matter of the information was neither requested by Santa nor required.

[25] It is my view, however, that the process issued by the justice of the peace was properly quashed. It should be noted that it is the summons issued by the justice of the peace that is quashed and not the information itself. The information appears regular on its face and no grounds have been advanced to show that it was not properly received by the justice of the peace. However, I agree with the applications judge that, in light of the legislative scheme under the MEA, the justice of the peace erred in issuing process compelling Santa to appear in answer to charges laid by a private elector.

[26] In support of her conclusions, the applications judge reiterated the finding made by Smith J. in the earlier proceeding that the MEA constituted a complete code of procedure that vested exclusive authority in the council to commence proceedings in respect of any alleged contravention of the provisions concerning election campaign finances. She stated that the purpose for vesting discretion in the council was to limit attacks on elected officials. She concluded that, while the wording of the MEA is “far from clear”, its provisions with respect to the compliance audit would be rendered meaningless if an individual elector was permitted to lay an information in respect of the same alleged contraventions. She noted that the general provisions of the POA are procedural, not substantive, in nature and that, as such, they did not provide an alternative source of redress for an aggrieved elector. She also rejected Audziss’ submission that the laying of the information constituted a distinct and separate procedure. She stated as follows:

With respect, I do not accept this submission. Mr. Audziss elected to commence a proceeding in the Superior Court to challenge the applicant’s election spending. The allegations made are the same as those in the private information laid. When the decision in the Superior Court is adverse, he cannot choose another forum to litigate the same issues in hope of a better result. It is telling that he did not reveal the fact of Mr. Justice Smith’s decision to the justice of the peace. The ex parte proceeding was conducted in the absence of Mr. Santa. Even if the justice of the peace had jurisdiction to hear the matter, he would have be[en] entitled to consider whether the decision of Mr. Justice Smith was binding on him. Mr. Audziss had a duty to bring the decision to the attention of the justice of the peace.

[27] The general right of a private person to lay an information in respect of an offence created by a provincial statute is found in s.23(1) of the POA reproduced earlier. The MEA is a provincial statute and it creates a number of offences. There is no express restriction or limitation in the MEA on an individual’s right to lay an information in respect of any offences contained in that statute. The question that arises is whether it is implicit that the Legislature intended to reserve that right to the council or local board of a municipality in respect of election campaign finances when it enacted s. 81(10). As set out above, that section authorizes the council or local board, following the conduct of a compliance audit, to “commence a legal proceeding against the candidate for any apparent contravention of a provision of this Act relating to election campaign finances.”

[28] I certainly agree with the applications judge’s comment that the statute is far from clear on whether an elector, or only council, can lay an information in respect of an alleged contravention of the MEA with respect to election campaign finances. Nonetheless, when the provisions relating to election campaign finances are considered in their entirety, it is my view that the conclusion reached by the applications judge is the only one that can provide coherence to the legislative scheme. Having regard to: a candidate’s obligations under the MEA in relation to election campaign finances; the automatic sanctions that apply upon the clerk serving notice of default; the elector’s right to apply for a compliance audit to ensure compliance with these provisions; the council’s obligation to consider that application and its power to appoint an auditor; the council’s obligation to consider any report resulting from a compliance audit and its power to commence a legal proceeding against the candidate for any apparent contravention of a provision relating to election campaign finances; and finally an elector’s right to seek judicial review in respect of the council’s decision; it is my view that the Legislature did not intend that an elector could simply by-pass the whole process and lay a private information. This interpretation is also one which, in my view, achieves a proper balance between an elector’s right to challenge an elected official in regard to his or her statutory obligations and the need to limit, and to ensure the legitimacy of, attacks on elected officials.

[29] Hence, I would conclude that an elector’s general right to lay an information in respect of provincial offences has effectively been superseded by the legislative scheme contained in the MEA in relation to election campaign finances. In light of my conclusion on this point, it is not necessary to decide whether the laying of an information by Audziss constituted a collateral attack on the decision of Smith J.

[30] Consequently, I would conclude that the process issued by the justice of the peace was properly quashed and I would dismiss the appeal.

III. The Appeal and the Cross-Appeal on Costs

[31] Smith J. ordered costs against the appellants on a partial indemnity basis fixed at $7,155. Santa seeks leave to cross-appeal from that order. He argued that costs should have been awarded on a substantial indemnity basis and for the full amount that he was requesting. He notes, in particular, that there were outstanding offers to settle to which Justice Smith made no reference. The offers to settle, if accepted, would have resulted in the abandonment of the appellants’ application in respect of the MEA without costs.

[32] I would dismiss Santa’s leave to appeal Smith J.’s order. Although the applications judge made no express reference to the offers to settle relied upon by Santa in support of his claim for costs on the higher scale, he specifically adverted to the question whether costs should be awarded on a partial or substantial indemnity basis. In my view, the applications judge made no error in awarding costs on a partial indemnity basis. The jurisdictional question raised by the application was a novel one with respect to the current legislative scheme and it was entirely within the applications judge’s discretion to award costs on the lower scale. Further, I see no basis to interfere with the quantum of the order of Pierce J.

[33] Pierce J. ordered costs against Audziss on a substantial indemnity basis fixed at $15,099.19. Both parties seek leave to appeal from her order. Audziss submits that the applications judge erred in fixing the costs instead of ordering that they be assessed and Santa submits that she erred in failing to award him the full amount that he was requesting. I see no merit to either submission. I would not grant leave to appeal the costs order.

DISPOSITION

[34] For these reasons, I would dismiss the appeal and cross-appeal in respect of Smith J.’s order. I would delete paragraph 1(b) of Pierce J.’s order (the prohibition order) and otherwise confirm her order and dismiss the appeal and cross-appeal. The respondent may make written submissions in respect of the costs of the two appeals within 14 days. The appellants may respond within 10 days thereafter. The respondent may reply, if so advised, within a further 5 days.

Released: JAN 09 2003 Signed: “Louise Charron J.A.”

MAC “I agree: M.A. Catzman J.A.”

“I agree R.S. Abella J.A.”