Court Information
Date: 2012-03-29
Ontario Court of Justice
Between: Sean McCormick — and — City of Toronto
Before: Justice K. Caldwell
Heard on: February 28, 2012
Reasons for Judgment released on: March 29, 2012
Counsel
For Mr. McCormick: Jamie Yoon
For the City of Toronto: No appearance by or on behalf of the City of Toronto, though notified of time and place
Reasons for Judgment
Caldwell J.:
[1] Mr. McCormick made a bid for the council seat for Ward 19, City of Toronto, in the 2010 municipal election.
[2] The Municipal Elections Act, 1996, S.O. 1996, c. 32 ("the Act") requires all candidates after the election to file financial documents relating to campaign expenses. It is agreed that the final date for filing was Friday March 25, 2011.
[3] Mr. McCormick failed to file by the deadline. Section 80 of the Act outlines the applicable penalties for failure to file.
[4] Mr. McCormick has applied for relief pursuant to section 80(4) of the Act:
Application to court
(4) The candidate may, before the last day for filing a document under section 78 or 79.1, apply to the Ontario Court of Justice to extend the time for filing the document under that section and, if the court is satisfied there are mitigating circumstances justifying a later date for filing the document, the court may grant an extension for the minimum period of time necessary to enable the candidate to file the document but the court shall not grant an extension of more than 90 days.
[5] Section 80(4) allows for application to this Court to extend the time to file the documents. Mr. McCormick's difficulty is that the deadline has passed to apply to this Court for the time extension. Essentially, then, he is making two applications:
to extend the time to apply for an extension of time to file the documents ("time to file the application") and, if this is successful,
to extend the time to file the documents ("time to file documents").
[6] The City did not appear on this application and took no position. The City, however, requested that Mr. Yoon, counsel for Mr. McCormick, provide the Court with a letter from the City pointing out that the Act does not specifically allow for an application to the Court after the deadline has passed, drawing section 80(4) outlined above to the Court's attention.
Are there mitigating circumstances to justify an extension of time to file documents?
[7] I will address the second issue first. Section 80(4) allows for an extension of time to file documents if there are mitigating circumstances. There are very powerful mitigating circumstances in this case. In other words, if I find that I have jurisdiction to extend the time to file the application, there is no doubt that I would allow Mr. McCormick extra time to file his documents.
[8] Mr. McCormick made extensive good faith efforts to prepare the requisite documents. Six months prior to the filing deadline, he retained an accountant, Mr. Khosla, to prepare his campaign audit who assured Mr. McCormick that he could assist with the filing.
[9] All appeared to be in order and moving at an appropriate pace until March 11, 2011, two weeks prior to the filing deadline. At that point, Mr. Khosla became aware of section 78(4) of the Act which required that an auditor's report be prepared and that such preparation must be done by someone licensed to practice under the Public Accounting Act, 2004. Mr. Khosla is not licensed under that act.
[10] Both Mr. Khosla and Mr. McCormick filed affidavits in support of this application and I accept as fact the contents of those affidavits.
[11] Mr. Khosla immediately notified both Mr. McCormick, and Mr. McCormick's campaign assistant, Mr. Landon Tresise. Mr. Tresise told Mr. McCormick to apply to City Hall for a filing deadline extension.
[12] Further unanticipated personal developments intervened, however. Mr. McCormick's wife began to experience complications with her pregnancy with their first child. Ultimately the doctors decided that premature labour needed to be induced for the health of both the baby and mother. The baby, fortunately healthy, was born seven days before the filing deadline and discharged from hospital five days prior to the deadline.
[13] Not surprisingly, Mr. McCormick's mind was not fully focussed at that point on his obligations under the Act. As a result, he did not personally review the terms of the Act, relying instead upon the advice of his campaign officials. He did, however, attend at City Hall at the 11th hour, on the filing deadline date, to ask for an extension of time.
[14] He was correctly told by City Hall staff that he had missed by one day the deadline for applying for an extension. Further, he was erroneously told by the same staff that the application should be made to Ms. Bonita Pietrangelo, Director of Elections and Registry Services.
[15] On April 6th, 2011, he wrote a letter to Ms. Pietrangelo requesting the extension. Subsequently, he met with her and was informed quite correctly by her that she had no authority to grant the extension.
[16] He then received advice to lobby City Council for a resolution in order to resolve the matter. After unsuccessful attempts to garner such support, he finally sought legal advice and was informed that the application must be brought before this Court.
[17] Mr. Yoon added by way of submission that Mr. McCormick is not a man well versed in the law and thus it is not surprising that it took him some time to determine that he should seek legal advice.
[18] The mitigating circumstances in this case are many and they are self-evident. Mr. McCormick made good faith early efforts to have the appropriate documentation prepared. Mr. Khosla in good faith thought that he was qualified to complete the necessary work. It is unfortunate that Mr. Khosla and Mr. McCormick did not realize the problem with Mr. Khosla's qualifications at an earlier point. Mr. McCormick did, however, make genuine and extensive efforts to rectify the situation. But for the very early, unanticipated, and worrisome induced labour, he undoubtedly would have discovered the timing deadline and jurisdictional problem at an earlier point. It is for these reasons that I find that Mr. McCormick's circumstances justify an extension of the time to file documents.
Does this Court have jurisdiction to extend the time to file the application?
[19] It is crystal clear from my reasons that I want to both extend the deadline to apply and grant the application on its merits. I appreciate, however, that this desire on my part does not translate into jurisdiction.
[20] The obvious difficulty is that this Court is a statutory court and thus must derive its powers from statute. As the Act is silent on the issue an application deadline extension, then arguably this Court has no authority to extend the time to apply.
[21] On the other hand, nothing in the Act specifically prohibits such an extension.
[22] Further, I turn by analogy to R v Jamieson, [1981] O.J. No. 1937. This case involved an application for leave to appeal a speeding conviction under the Provincial Offences Act, R.S.O. (1980), c. 400. Ms. Jamieson was convicted in absentia of speeding as her hearing request never reached the hearings office. She appealed, was granted a new hearing, but on the way to that hearing her car's tire went flat and she arrived forty minutes late, after court had ended for the day. Her appeal had been dismissed given her absence.
[23] Her appeal to this Court was summarily dismissed. The Court of Appeal granted her leave application, and her conviction ultimately was overturned by the Court.
[24] Clearly the facts and subject matter of Jamieson are different from those in this case. The relevance of Jamieson to this application lies in the Court's statement of the purpose of the Provincial Offences Act:
The Provincial Offences Act is not intended as a trap for the unskilled or unwary but rather, as already stated, as an inexpensive and efficient way of dealing with, for the most part, minor offences. The way in which the proceedings were conducted by the Provincial Court Judge way have resulted in a denial of natural justice.
I am of the view, accordingly, that there are special grounds and a question of law alone on which leave to appeal should be granted. I am also of the view that in the particular circumstances of this case it is essential for the due administration of justice that leave to appeal be granted.
[25] Ms. Jamieson shares some similarities with Mr. McCormick. Neither appears to be well versed in the law. Both were tenacious in attempting to deal with their matters appropriately. Unforeseen circumstances intervened.
[26] Further, as with the Provincial Offences Act, the strictures of the Municipal Elections Act are "not intended as a trap for the unskilled or unwary".
[27] Given the inherent jurisdiction and thus greater remedial powers possessed by the Ontario Superior Court, it strikes me that the Superior Court may be the more appropriate forum for this application to extend the time to file the application. In the spirit of the Jamieson decision, however, I do not wish to further complicate matters for Mr. McCormick. Seeking election to city council is an act which ordinary citizens should be able to undertake, and unduly complicating the proceedings on highly technical bases runs the risk of discouraging people such as Mr. McCormick from pursuing such a goal.
[28] For all of these reasons, I grant Mr. McCormick's request to extend the time to file the application. Further, I grant the application for an extension of time to file the documents. As section 80(4) states that the Court "shall not grant an extension of more than ninety days", Mr. McCormick must file the outstanding documents by Monday June 25, 2012.
Released: March 29, 2012
Signed: Justice K. Caldwell