Court Information

Location: Old City Hall, 60 Queen Street West, Toronto, Ontario

Court: Ontario Court of Justice

Matter: Application for a Compliance Audit of Election Campaign Finances pursuant to Section 81 of the Municipal Elections Act, 1996, S.O. 1996, c. 32

Parties and Counsel

First Appeal

Appellant: Rob Ford

Respondents: Compliance Audit Committee of the City of Toronto, Max Reed, and Adam Chaleff-Freudenthaler

Counsel for Rob Ford: T. Barlow, C. Rae, R. Bornmann

Counsel for Compliance Audit Committee: K. Chapman

Counsel for Max Reed, Responding Party: R. Centa, C. Jones

Counsel for A. Chaleff-Freudenthaler, Responding Party: P. Veel

Second Appeal

Appellant: Peter Li Preti

Respondents: Compliance Audit Committee of the City of Toronto, Howard Moscoe, and Adam Chaleff-Freudenthaler

Counsel for Peter Li Preti: M. Solmon

Counsel for Compliance Audit Committee: K. Chapman

Counsel for Howard Moscoe, Responding Party: P. Veel

Counsel for A. Chaleff-Freudenthaler, Responding Party: P. Veel

Hearing Information

Before: Justice Richard D. Schneider

Heard: Thursday, January 19, 2012

Released: February 22, 2012

Type: Preliminary Motion

Decision

SCHNEIDER J.:

[1] Nature of the Appeal

This is a ruling on a motion preliminary to an appeal of a decision of the Compliance Audit Committee ("Committee"). The appellants are candidates in respect of whom audits of election campaign expenses were ordered by the Committee. Both are appealing those orders. The preliminary motion was brought to determine, among other things, how the hearing of the appeal should ultimately be conducted. The principle issue to determine is whether the appeal will be limited to a review of the record or will it be a hearing de novo?

[2] Preliminary Issues

The appellants take the position that the appeal must be a hearing de novo whereas the Respondents and the Committee (also appearing by way of counsel) are of the view that the appeal should consist of a review of the record. While raised at this hearing, questions regarding fresh evidence and standard of review are properly left to be decided at another date once the central question has been answered. If, for example, it is decided that the appeal is to be a hearing de novo, the question of fresh evidence doesn't arise. And, while there has been much argument as to the standard of review this question is properly left to the appellate court at the time of the hearing on the merits. It should be noted however that the question of 'standard of review' is a separate and independent question from that regarding the format of the appeal; that is, review of the record versus hearing de novo. Standard of review does not dictate form of appeal.

Nature of an Appeal

[3] General Principles

Generally, appeals take one of two forms: either 1) a review of the record which was before the tribunal appealed against, or 2) a hearing de novo. In L.(H) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 at paragraph 52, the Supreme Court of Canada has said that "[i]n the absence of a clear statutory mandate to the contrary, appellate courts do not 'rehear' or 'retry' cases. They review for error." In the present context, the Ontario Court of Justice is designated as the 'appellate court'. It would appear then that with respect to the central question, unless there is a 'clear statutory mandate to the contrary', the appeal against the decision of the Committee must take the form of a review of the record which was before it. This would then constitute a rebuttable presumption, determined by a review of the statute, that the appeal will take the form of a review.

The Municipal Elections Act, 1996, S.O. 1996, c. 32 ("MEA")

[4] Statutory Provisions

Appeals against decisions of the Committee to order audits are made pursuant to the provisions of subsection 81(6) of the MEA which provides:

81(6) The decision of the committee may be appealed to the Ontario Court of Justice within 15 days after the decision is made and the court may make any decision the committee could have made.

[5] Interpretation of the MEA

The MEA is silent with respect to what form appeals against decisions of the Committee are to take. It does not employ terms such as 'rehearing', 'de novo', or 'new hearing'. The first part of subsection 81(6) grants to the appellant the right to appeal. The second half deals with the court's powers on appeal. The court may make any decision the Committee could have made. Those powers are not unusually broad but, rather, are entirely consistent with the other source of appellate jurisdiction and appellate powers the court possesses which arise under the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA").

[6] Comparison with the Courts of Justice Act

The language used in the MEA is remarkably similar to that employed by the CJA which provides in subsection 134(1)(a):

134(1) Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from.

[7] Statutory Interpretation Principles

Of importance are the provisions of the Legislation Act, 1996, S.O. 2006, c. 21, s. 64(1) which guides the court in any interpretation of applicable statutes:

64(1) An act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

[8] Broad Powers Do Not Create De Novo Hearings

The CJA applies to the Ontario Court of Justice and should be seen as a general statute governing the conduct of appeals and jurisdiction of the court which may, of course, be modified by more particular topical statutes. While both the MEA and the CJA grant broad remedial powers to the Ontario Court of Justice neither statute provides a "clear statutory mandate" to 'rehear' or 'retry' cases; that is, to conduct hearings de novo.

[9] Examples of Clear Statutory Mandates

There are however, examples of other Provincial legislation which have explicitly provided for appeals to take the form of hearings de novo – a clear statutory mandate (eg. Provincial Offences Act, R.S.O. 1990, c. P.33, s. 127(1); Animals for Research Act, R.S.O. 1990, c. A.22, s. 9(3); Clean Water Act, 2006, S.O. 2006, c. 22, s. 76; Environmental Protection Act, R.S.O. 1990, c. E.19, s. 45; Farm Implements Act, R.S.O. c. F.4, s. 8; Land Titles Act, R.S.O. c. L.5, s. 26; Ontario Society for the Protection of Cruelty to Animals Act, R.S.O. 1990, c. O.36, s. 18(4)). For example, in this latter Act the statute provides (subsection 18(4)) as follows:

18(4) The appeal shall be a new hearing and the judge may rescind, alter or confirm the decision of the Board and make such order as to costs as he or she considers appropriate, and the decision of the judge is final. [emphasis added]

[10] Statutes Limiting Appeals to Record Review

On the other hand, an Act may specifically limit an appeal to a review of the record but explicitly make provisions for the receiving of new or additional evidence (eg. Health Care Consent Act, S.O. 1996, c. 2, Schedule A, ss. 80(9), (10)).

[11] Record Review Despite Provisions for New Evidence

However, even statutory provisions of this sort do not suggest an appeal taking the form of a hearing de novo. In B.(E.), Re In the Matter of The Health Care Consent Act S.O. 1996, c.2 as amended A.M. and D.M., Substitute decision makers for Mrs. E.B. (Applicants) and Dr. Brian Taylor, the Medical Practitioner Proposing the Treatment (Respondent), 2006 CarswellOnt 6172, 151 A.C.W.S. (3d) 725 at paragraphs 33-34, the court indicated as follows:

"First, it must be acknowledged that this is a statutory appeal from a decision of the Board pursuant to section 80 of the Act. It is not a trial de novo of the Board's hearing. The only question which was before this court on this appeal was to determine whether the decision of the Board was reasonable at the time it was made.

To conclude otherwise would turn every statutory appeal under the act into a new trial of the Board's hearing. This is clearly inconsistent with the structure of the Act and this court is in no position to assume such a role."

[12] Legislature's Clear Mandate

These examples demonstrate that the legislature, where it has determined that there should be a departure from the presumed format of an appeal, does provide a 'clear statutory mandate to the contrary'.

[13] Lack of Formality in the MEA

In many respects the MEA does not give a lot of direction. The statute doesn't provide for what kind of "evidence" goes before the Committee. It simply says an application goes before the Committee. It's not under oath. It provides for written submissions. It doesn't say what the record is or what it must include. It doesn't say what record should go to the appeal. It doesn't talk about reasons for decisions of the Committee. Does a lack of 'formality' or specificity in terms of how the Committee holds its hearings suggest a hearing de novo for appeals against decisions of the Committee? Does the fact that the Court may make any decision that the Committee could have made necessarily imply a hearing de novo?

[14] Broad Powers and Comparable Statutes

The language of the Supreme Court suggests that such a non-specific statutory scheme is not sufficient. Broad powers to the court hearing the appeal do not create a hearing de novo. Cases interpreting the Building Code Act, the Health Professions Code, the Ontario Securities Act are of assistance as useful comparisons. These Acts create appeals to a court and all confer broad powers on the court and in no case do they justify a trial de novo.

[15] Securities Act Precedent

Justice Reid, in considering the Securities Act, in RE: C.T.C. Dealer Holdings Ltd. et al and Ontario Securities Commission, et al., (1987), 37 D.L.R. (4th) 94 (O.H.C.J. Div. Ct.) at page 104 wrote,

"The breadth of the powers conferred on this court has been the subject of earlier comment by the court. However broad they may be, they are not a warrant for us to retry the case. I reject any suggestion that we should do so. For reasons that have been expressed many times by many courts, the exercise of appeal powers such as these neither calls for nor justifies a trial de novo."

[16] Logical Consequence

If it were the case that broad powers conferred upon the appellate court, such as those found in the MEA and the CJA, signalled a hearing de novo format on appeal it would surely be the case that all appeals to this court, the Superior Court of Justice, and the Court of Appeal for Ontario would also presumptively take the form of a hearing de novo. This cannot be the case.

[17] Cases Cited for De Novo Hearings

Nevertheless, three cases have been cited to support the proposition that the MEA does indeed mandate appeals which are de novo hearings: Dickason v. University of Alberta, [1992] 95 D.L.R. (4th) 439 (S.C.C.); Defrancesca v. Vaughan (City), 2008 CarswellOnt 9077 (Ont.C.J.); Savage v. Niagara Falls (City), 2005 CarswellOnt 6534 (Ont.C.J.).

[18] Analysis of Cited Cases

However, the Dickason case seems to stand for the proposition that the Individual Rights Protection Act grants the appellate court the "jurisdiction to make findings of fact based on a review of the evidence on the record", without deference to the conclusions drawn by the Board of Inquiry. At the same time, the Defrancesca and Savage cases, while the phraseology is at first blush consistent with de novo hearings having been held, a closer examination reveals that the appeals were in fact reviews of the record and not new hearings. The use of the terms 'anew' and 'de novo' in the judgements appear to relate to the standard of review rather than the architecture of the hearing. The judges in each case approached the appeal as one involving a fresh look at the material which was before the tribunal and the reviews were, in that sense of the words used, de novo. In the latter two cases the issue of whether there was to be a hearing de novo did not arise and was not argued.

[19] Pickering Compliance Audit Decision

In Dickerson v. Compliance Audit Committee of the City of Pickering (O.C.J., December 21, 2011, Court File No. 2811999; decision of Bellefontain, J.) the court declined an application to review the reasonableness of a decision of the Committee with the addition of supplementary evidence. The court stated (paragraphs 13–16):

To do so would require me to not only consider post-application materials, but also to take on the role of auditor and trial judge and determine the veracity of the appellant's facts which is not my function at this stage of the proceeding. I consider my duty to be the narrow one of acting as a gate keeper and determining whether credibly based reasonable grounds existed for the Elector's applications at the time they were made.

[20] Harelkin Case

Harelkin v. University of Regina, [1979] 2 S.C.R. 561 was cited to support the proposition that an appeal in a context such as the one before the court should be dealt with on the basis of a hearing de novo. To my mind this case is not particularly helpful in that it is quite factually distinguishable. Harelkin pertains to an appeal within a university from one decision maker to a superior university tribunal and addresses the format of the appeal to be held by the superior university body.

Interests of Justice

[21] Discretion and Statutory Mandate

To what extent does an assessment of the 'interests of justice' permit appellate court discretion as to how an appeal pursuant to the provisions of the MEA is to be conducted? A consideration of the 'interests of justice' may determine certain statutorily prescribed decisions such as, for example, whether or not to receive fresh evidence (eg. Provincial Offences Act, R.S.O. 1990, c. P.33, section 117(1); Criminal Code of Canada, R.S.C. 1985, c. C.-46, section 683(1)(d)). Where, as in these two statutes, discretion is to be extended to the appellate court to depart from the presumed appeal format, as the point was made in L.(H) v. Canada (Attorney General) (cited above), a 'clear statutory mandate' must still be articulated. That provisions may be made for 'interests of justice' to drive 'decision A' does not open the door for the same consideration to drive an unspecified 'decision B'.

The Committee Did Not Provide Reasons for Its Decision

[22] Gate-Keeping Function

It has been argued that because the committee did not give reasons there is no way of assessing the reasonableness of the decision. We don't know what the committee considered to be relevant or determinative. But, the statute does not require the committee to provide reasons. The Committee, at this juncture, is not deciding the issue of whether the candidate has contravened the MEA. It is merely deciding whether there is a basis for ordering that an audit take place. The Committee assumes, at this juncture, the so-called 'gate-keeping' role. The question is as to whether the record placed before it was sufficient or not for the making of such an order.

[23] Comparable Scenarios

A number of comparable scenarios have been brought to the attention of the court from other statutes. For example, a justice of the peace who authorizes a search warrant is under no obligation to give reasons. Sometimes there are transcripts of police officers' attendance before the justice of the peace, however, it's very common for the authorization of a search warrant to simply be reviewed on the basis of the sworn information to obtain the search warrant that was before the justice of the peace with no reasons provided. In R. v. Garofoli, [1990] 2 S.C.R. 1421, the Supreme Court has said that the reviewing court does not engage in a correctness review as to whether that court would have ordered the search warrant. The question is whether there were reasonable grounds upon which any reviewing court could have authorized that search warrant. The reviewing court does not substitute its decision for that of the justice of the peace but rather determines whether, on the basis of the record which was before the justice of the peace, the authorization could have been made.

[24] Lack of Reasons in Gate-Keeping Functions

In Lyras v. Heaps, 2008 CarswellOnt 6348, at paragraphs 18–19, Justice Lane observed, in respect of the MEA:

"In my view, the fact that the Committee does not give reasons for its decision is not a factor which should weigh heavily given the context and their function. When judicial or quasi-judicial officers are acting in a gate-keeper function, not giving reasons is not an unusual practice. I note that a justice of the peace or judge does not normally give written reasons for issuing or denying a search warrant does the Supreme Court of Canada give reasons for refusing leave to appeal."

[25] Failure to Give Reasons

The question then is, if there's no duty or requirement to give reasons on the part of the Committee, can it be that the failure to give reasons might transform an appeal of its decision into a trial de novo?

[26] Reasonableness Review Without Reasons

As Justice Rothstein wrote in A.T.A. v. Alberta (Information & Privacy Commissioner) 2011 CarswellAlta 2068, 2011 SCC 61, J.E. 2011–2083:

When there is no duty to give reasons (e.g. Mavi v. Canada (Attorney General), 2011 SCC 30, [2011] 2 S.C.R. 504 (S.C.C.)) or when only limited reasons are required, it is entirely appropriate for courts to consider the reasons that could be offered for the decision when conducting a reasonableness review. [emphasis added]

[27] Committee Minutes

As well, while the Committee does not typically provide reasons for its decisions, minutes of its proceedings are provided which include the information which was before the Committee, the names of the speakers who were heard at the time of the application, and the Committee's decision.

The Record Was Deficient

[28] Appellants' Argument

The appellants argue that the appeal must take the form of a hearing de novo because of deficiencies in the record. There was no evidence other than documents adduced, only submissions. Furthermore, the record was incomplete. Where the record is deficient or incomplete the basis for the CAC's decision is inherently flawed and the only solution is a hearing de novo.

[29] Respondents' Counter-Argument

Mr. Centa, on behalf of the Respondents, Mr. Reed and Mr. Chaleff-Freudenthaler, counters by saying that while there were no affidavits and no viva voce sworn testimony, there was an abundant 'record'. They point to the voluminous document entitled 'Record of Proceedings', all of which was before the CAC. It includes the financial statement filed by the candidate and the application for a compliance audit filed by the electors. This document commences the process. It sets out their belief and the grounds therefore that the candidate violated the MEA. It also includes the candidate's response forming pages 296 to 340 of the record. The candidate filed a 44 page response. Both Appellants were then invited to make oral submissions for a brief period of time. From that, the CAC reviewed this record to decide whether or not the electors had a reasonable basis for their belief that the candidate violated the MEA.

[30] Dr. Li Preti's Concerns

Counsel on behalf of Dr. Li Preti submit further that the record is incomplete in that there are materials sent by Dr. Li Preti that were not before the committee. Also, there is material in the record that was never seen by Dr. Li Preti. And, while Dr. Li Preti was given time to respond at the hearing, he was not given enough time.

[31] Video Recording Issue

The committee was supposed to have video-taped the hearing but did not, therefore, there is no record to review. This construction is not tenable. It should be remembered that the MEA does not specify what is to be in the 'record' that is placed before the Committee so long as the appropriate application is completed and submitted. Nor, is it specified what must be before the appellate court.

The Committee's Decision to Order an Audit Was Premature

[32] Campaign Period Extension

The election occurred in October of 2010. Under the MEA the campaign period is normally from January 1 of an election year until December 31 of an election year. But, in the candidate's case because there was a deficit that existed as of December 31, 2010 the campaign was extended, as a matter of law under the act, so that it started on January 1 and ended on June 30th, 2011. And, in respect of that extra period, the candidate was required to file supplementary material, which was done.

[33] Appellants' Argument on Prematurity

The Appellants ask: What's the point in having an order for an audit part way through the campaign where everything might be corrected by the time the final supplemental filings have been made? They say any review of the record must include not just what was before the committee at the time of the original hearing but also the material submitted by the Appellant with his supplemental second filing. The appellants say that the application to the Committee was premature in that it came before the end of the campaign. To my mind, even if this were the case, it does not bear directly on the central question of 'what is the nature of the appeal hearing?'

[34] Respondents' Counter-Argument on Prematurity

The Respondents counter with what matters is: what was the elector's reasonable belief at the time they filed their application? Subsequent evidence about what happened six months later in a later filing is of no moment because it can't affect whether the elector's belief was reasonable when they brought their application. Evidence developed subsequently might well be put to the auditor to answer the questions of the auditor, but it cannot affect the question that the CAC was considering which is whether the electors had a reasonable basis for their belief when they filed their application.

Conclusions

[35] Standard of Review

Upon review the relevant statutes, the case law supplied, and consideration of the submissions of counsel, I am of the view that the role of the court at this juncture is akin to the role of the court in assessing the reasonableness of an authorization of a search warrant issued by a justice of the peace in a criminal context. In performing that function the court engages in a review of the record that was before the justice of the peace at the time of the authorization. The court determines whether the record provided an adequate basis for the authorization. The court is not to substitute its reasoning for that of the justice of the peace but is to find whether such an authorization could be supported by the record. A justice of the peace is not required to provide reasons for his or her decision. Nor, are reasons typically provided by the authorizing justice of the peace. The reviewing court is free to determine whether reasons could be found. With respect to decisions of the CAC, the MEA does not provide for appeals of their decisions to be conducted as de novo hearings. There is an absence of a "clear statutory mandate" to 'rehear' or 'retry' cases as is required according to L.(H) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401. Nor, does the case law provide a compelling basis for departing from the presumed format for an appeal pursuant to the provisions of subsection 81(6).

[36] Consistency with the Scheme

It is inconsistent with the scheme of this act that provides for accelerated time lines, written submissions and brief oral submissions before the CAC to then, at the instance of either disaffected party, to have a trial de novo in the Ontario Court of Justice.

[37] Final Ruling

The appeal must take the form of a review of the record that was before the CAC.

Released: February 22, 2012

Signed: Justice Richard D. Schneider