CITATION: Longley v. Canada (Attorney General), 2007 ONCA 149

DATE: 20070307

DOCKET: M34627 (C46236)

COURT OF APPEAL FOR ONTARIO

WEILER J.A. (IN-CHAMBERS)

B E T W E E N :

BLAIR T. LONGLEY, KEVIN PECK, MIGUEL FIGUEROA, JIM HARRIS, MARIJUANA PARTY, CANADIAN ACTION PARTY, COMMUNIST PARTY OF CANADA, GREEN PARTY OF CANADA CHRISTIAN HERITAGE PARTY AND PROGRESSIVE CANADIAN PARTY

Roslyn J. Levine, Q.C. and Gail Sinclair for the moving party

(Responding Parties/Respondent)

• and -

THE ATTORNEY GENERAL

Peter Rosenthal for the responding parties

(Moving Party/Appellant)

Heard: February 26, 2007

On a motion to stay the judgment of Justice Ted Matlow of the Superior Court of Justice dated October 12, 2006.

WEILER J.A.:

[1] On October 12, 2006, the applications judge declared s. 453.01(1)(a) and (b) of the Canada Elections Act, S.C. 2000, c. 9, (the Act) invalid pursuant to s. 52 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Pending disposition of its appeal to this court, the Attorney General applies for a stay of two paragraphs of his order.

[2] The respondents on the motion are all registered political parties and their leaders. Blair T. Longley is the leader of the Marijuana Party; Kevin Peck is the chief agent of the Canadian Action Party; Miguel Figueroa is the leader of the Communist Party of Canada; and Jim Harris was the leader of the Green Party.

[3] Since proclamation of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada has had to consider the constitutionality of various limitations in both the provincial and federal elections acts. In particular, in Figueroa v. The Attorney General of Canada, 2003 SCC 37, [2003] 1 S.C.R. 912, the Supreme Court considered whether the 50-candidate requirement for a registered party’s entitlement to benefits in the Canada Elections Act. (the Act), such as the right to issue tax receipts for donations made outside the election period, was inconsistent with s. 3 of the Charter dealing with a citizen’s right to vote and, if so, whether the infringement could be justified under s. 1. The Supreme Court declared these provisions unconstitutional but the declaration of unconstitutionality was suspended for 12 months.

[4] In the decision under appeal, the provision at issue entitles registered political parties to receive an additional measure of public funding (known as the quarterly allowance) in the form of $1.75 per vote per annum based on the level of voter support that the parties received in the previous federal election. Eligibility for this funding is restricted to parties that obtained 2% of the national vote or 5% of the votes in electoral districts in which the party fielded candidates.[^1]

[5] The applications judge concluded that the Supreme Court’s decision in Figueroa applied to the provisions in issue before him. As a result, in paragraph 1 of his order, he declared the existing thresholds in s. 435.01(1)(a) and (b) of the Act null and void and of no force and effect.

[6] Paragraph 2 of his order, which raises the main issue on this stay application, states:

THIS COURT ORDERS that s. 435.01(1) of the Canada Elections Act read as follows:

435.01(1) The Chief Electoral Officer shall determine, for each quarter of a calendar year, an allowance payable to a registered party whose candidates for the most recent general election preceding that quarter received at that election at least one vote.

Thus, the applications judge read into section 435.01(1) a threshold of one vote.

[7] Paragraph 3 of the applications judge’s order provides for the quarterly allowances to be paid from January 1, 2004 to September 30, 2006 plus prejudgment interest and sets out the amounts. The applications judge reasoned that, as efforts made to persuade the government to repeal the impugned provisions after the release of the Supreme Court’s decision in Figueroa went unheeded, to deny the applicants this remedy would perpetuate the injustice of the government’s failure to introduce repealing legislation. He concluded that this harm could be remedied by paying the allowance retroactively so that all affected parties could approach the next federal election on the same footing as the major parties.

[8] The Attorney General asks that paragraphs 2 and 3 of the order of the applications judge be stayed on two bases: 1) that the Attorney General meets the requirements for obtaining a stay and 2) that the order in question is an order for the payment of money and is automatically stayed.

[9] The respondent concedes that paragraph 3 of the order requiring payments retroactively from January 1, 2004 up to September 30, 2006 is an order for the payment of money and the filing of a notice of appeal automatically stays that portion of the order pursuant to Rule 63.01 of the Rules of Civil Procedure.

[10] The Attorney General argues that the prospective payments ordered in paragraph 2 are also in effect an order for the payment of money. The Attorney General submits that the same principles and considerations that underlie the automatic stay pending appeal of orders for the payment of money under Rule 63.01(1) apply. I will deal with this aspect of the motion first.

Is the order with respect to prospective payments an order for the payment of money?

[11] Courts have traditionally interpreted the application of rule 63.01(1) narrowly in terms of the kinds of orders that fall under it. An order for the payment of money is an order that creates a fixed debt obligation: see para. 104 of the dissenting opinion of Laskin J.A. in Dickie v. Dickie (2006), 2006 CanLII 576 (ON CA), 78 O.R. (3d) 1 (C.A.), aff’d 2007 SCC 8 and also Lee v. Lee, 1995 CanLII 10686 (ON SC), [1995] O.J. No. 1196 (Div. Ct.)

[12] The order in paragraph 2 applies not only to the applicants before the court but to “a registered party whose candidates for the most recent general election preceding that quarter received at that election at least one vote.” While a consequence of paragraph 2 would be a monetary payment once the CEO has made his determination, the order itself is not a fixed debt obligation and is not an order for the payment of money.

[13] My conclusion is confirmed by the presence of section 435.02(3) of the Act which states:

The Receiver General shall, on receipt of a certificate, pay to the registered party out of the Consolidated Revenue Fund the amount set out in the certificate. ….

This is the section that provides for payment and creates an obligation. There would be no reason for this section if s. 453.01(1) created an obligation to pay. Thus, paragraph 2 of the order is not an order for the payment of money within the meaning of rule 63.01(1). As it would not be appropriate to order an automatic stay, I must consider whether the requirements for ordering a stay pending appeal are met.

The requirements for a stay pending appeal

[14] The test for staying an order pending an appeal is the same as the test for an interlocutory injunction: Circuit World Corp. v. Lesperance et al. (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.) at 676-677. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be determined on the appeal. Second, the court must determine if the appellant would suffer irreparable harm if the application were refused. Finally, the balance of convenience must be determined by assessing which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[15] The three requirements necessary to support the granting of a stay are not to be considered as separate hurdles but as interrelated considerations: Apotex Fermentation Inc. v. Novopharm Ltd. 1994 CanLII 16694 (MB CA), [1994] M.J. No. 357 (C.A.). Accordingly, strength respecting one criterion may compensate for the weakness of another: Circuit World Corp., supra. The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.).

Are the requirements for a stay met here?

[16] Insofar as the first requirement is concerned, the appellants submit that the constitutionality of the sections in issue is clearly a serious question to be determined. The words “a serious question to be determined” are equivalent to saying that their appeal is not frivolous and vexatious: RJR-MacDonald Inc. v. Canada (A.G.), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 at para. 44. The appellant points out that in Horsefield v. Ontario (Registrar of Motor Vehicles) (1997), 1997 CanLII 2546 (ON CA), 35 O.R. (3d) 304 (C.A.) this court held the threshold for satisfying this element of the test for a stay pending appeal is a low one. Further, statements in private law applications for interlocutory relief pending appeal, to the effect that once a decision has been rendered on the merits at trial the burden on an applicant for interlocutory relief increases, have no application in Charter cases: RJR-MacDonald Inc. v. Canada (A.G.), supra at para. 47.

[17] The respondents submit the binding judgment of the Supreme Court in Figueroa is determinative and there are no serious issues to be determined. They rely on the following passage from RJR-MacDonald, supra at para. 33:

…the Charter charges the courts with the responsibility of safeguarding fundamental rights. For the courts to insist rigidly that all legislation be enforced to the letter until the moment that it is struck down as unconstitutional might in some instances be to condone the most blatant violation of Charter rights. Such a practice would undermine the spirit and purpose of the Charter and might encourage a government to prolong unduly the final resolution of the dispute.

[18] I do not accept the respondents’ submission that the Supreme Court decision in Figueroa is determinative of the issues in this appeal and that, as a result, there is no serious issue to be determined. In Figueroa, Iacobucci J., writing for the majority, was clear at para. 91 that:

This decision does not stand for the proposition that the differential treatment of political parties will always constitute a violation of s. 3. Nor does it stand for the proposition that an infringement of s. 3 arising from the differential treatment of political parties could never be justified. Consequently, although the disposition of this case will have an impact on sections of the Elections Act that provide… the right to partial reimbursement of election expenses upon receiving a certain percentage of the vote, I express no opinion as to the constitutionality of the legislation that restricts access to those benefits. It is possible that it would be necessary to consider factors that have not been addressed in this appeal in order to determine the constitutionality of restricting those benefits.

In the passage cited above, the Supreme Court made it clear that its decision is not to be applied so as to automatically invalidate the provision in issue. Yet that is what the applications judge did here. He held that the principles in Figueroa were equally applicable to these sections of the Act and that he was bound to follow them.

[19] As the Supreme Court noted, it may be necessary to consider factors on this appeal that were not addressed in Figueroa. One of the factors not addressed in the Supreme Court’s decision, upon which the Attorney General relies here, is that the role of the Chief Electoral Officer (CEO) could become politicized or more politicized. The Attorney General has satisfied the first element of the test.

[20] With respect to the need to establish irreparable harm, this court explained recently in Henco Industries Ltd. v. Haudenosaunee Six Nations (2006), 2006 CanLII 29083 (ON CA), 82 O.R. (3d) 338 at para. 91 that: “a public authority can almost always show irreparable harm if the stay is not granted by demonstrating that its actions have been taken to promote the public interest.”

[21] The substance of the Attorney General’s argument is that, given the absence of meaningful prerequisites for the receipt of the per-vote allowance, the CEO might be obliged to assess the genuineness of leaders’ declarations on behalf of entities that register as political parties in order to gain access to public monies. Such a situation raises concerns about the possible politicization of the office of the CEO, concerns that could compromise the public’s confidence in the political neutrality, independence, and impartiality of this office specifically and in the electoral process generally. Affidavit evidence before this court relied on by the appellant is to the effect that the office of the CEO enjoys a high level of credibility and public trust and that a great risk to public confidence could occur if the CEO determined that he was obliged to question the legitimacy of registered parties. One of the objectives of the Elections Act has been to avoid requiring the CEO to make determinations of any kind that could be regarded as political.

[22] The respondents’ position is that recent amendments to the Canada Elections Act in the Federal Accountability Act, S.C. 2006, c. 9 call the appellant’s submissions about a potential loss of confidence in the CEO into question. These amendments, which have received Royal Assent and come into force on June 12, 2007, transfer the power to appoint and dismiss returning officers from the Governor in Council to the Chief Electoral Officer. See Federal Accountability Act, section 174. A returning officer is responsible for administering the electoral process in the electoral district for which he or she is appointed, and ensuring that it is handled fairly and impartially. Concerns of partisanship could arise in the appointment of returning officers. In legislating these amendments, Parliament is implicitly conveying confidence that the CEO will carry out his or her duty to appoint returning officers in a fair, neutral, and non-partisan way.

[23] The respondents submit that if Parliament was not concerned with the prospect of a loss of public confidence by giving the CEO the authority to make appointments for this very important position, public confidence would not be lost in the event that the CEO feels it is his or her obligation to scrutinize the sincerity of a leader’s declarations on behalf of an entity that registers as a political party in order to gain access to public monies.

[24] The respondents’ argument that Parliament has already politicized the role of the CEO in making subsequent amendments to the Act does not entirely detract from the appellant’s argument. If the applications judge’s order is not stayed, the potential for greater politicization of the role of the CEO and resulting risk of a loss of public confidence is a valid concern. The Attorney General is attempting to ensure public confidence in the administration of the federal electoral process and the office of the CEO and irreparable harm will ensue if that confidence is undermined. Its actions are being taken to promote the public interest. The second element of the test is met.

[25] The final consideration is the balance of convenience. The prospect of irreparable harm to the respondents must be weighed against the prospect of the possible harm that the Attorney General has established. Both parties acknowledge that the minority status of the current Federal Government raises the real possibility that an election could be called before the hearing of this appeal and decision of this court. Political parties and candidates require funds to participate in the electoral process and to communicate information about their platforms. I accept the respondents’ submission that, if a stay is granted, they will suffer harm in their ability to contest an election without the funding that is owed to them. If there is a correlation between voter support and effective communication, parties entitled to these funds could be disadvantaged and might not win as much support as they otherwise could.

[26] Accepting that there is a correlation between funding and votes, I am of the opinion that the harm the respondents will suffer is not irreparable. There is no evidence before me that the respondents cannot borrow the money in issue until the outcome of this appeal is determined. In the event that they borrow the money, they will not suffer irreparable harm but only financing costs. At this time, the retroactive payment that the respondents concede is automatically stayed is the greater amount in issue, not the prospective payments. No application to lift that stay has been made.

[27] I also note that in Figueroa, supra, in the face of a pending federal election, the Supreme Court suspended the unconstitutionality of its declaration for 12 months in order to give Parliament an opportunity to respond. In effect, the Supreme Court granted a stay of its decision. Here, if a stay is not granted, Parliament will have no opportunity to choose its own response to this declaration prior to its prospective implementation. The question on appeal of whether the declaration should be suspended will be effectively rendered moot.

[28] The balance of convenience clearly favours the applicant. It is in the interests of justice to maintain the status quo pending the hearing of the appeal and to grant the stay requested.

[29] For these reasons pending disposition of the appeal by this Court of the s. 52 declaration of invalidity of the Honourable Mr. Justice Matlow, dated October 12, 2006, in which he struck s. 435.01(1)(a) and (b) of the Canada Elections Act and made certain consequential orders , I order that :

(i) paragraphs 1 and 2 of his order are stayed;

(ii) the hearing of this appeal is expedited to June 27, 2007; and

(iii) costs of this motion are payable as agreed to between the parties.

RELEASED: March 7, 2007 (“KMW”)

“”K. M. Weiler J.A.”

[^1]: I note that one of the respondents, The Green Party, did surpass these thresholds in the 2006 Federal Election.