Nunziata v. Wong, Clerk, City of Toronto

[Indexed as: Nunziata v. Toronto (City) (Clerk)]

49 O.R. (3d) 310
[2000] O.J. No. 2272
Court File No. 219/2000

Ontario Superior Court of Justice
Divisional Court
Southey, Carnwath JJ. and Blair R.S.J.

June 16, 2000

Charter of Rights and Freedoms -- Voting rights -- Member of House of Commons seeking nomination as mayoral candidate for Toronto -- Section 37(1), para. 3 of Municipal Act providing that members of House of Commons are ineligible to be elected member of council -- Section 29(1) of Municipal Elections Act providing that person may be nominated for office only if he or she is not ineligible or otherwise prohibited by law to be nominated for or to hold office -- Provisions not violating M.P.'s right under s. 3 of Charter to be qualified for membership in House of Commons -- Canadian Charter of Rights and Freedoms, s. 3 -- Municipal Act, R.S.O. 1990, c. M.45, s. 37(1), para. 3 -- Municipal Elections Act, 1996, S.O. 1996, c. 32, s. 29(1).

Elections -- Eligibility of candidates -- Nominations -- City Clerk correctly deciding that she had discretion to accept or reject nomination of mayoral candidate before nomination day -- Municipal Elections Act, 1996, S.O. 1996, c. 32, s. 35(1), para. 1.

The applicant was a member of the House of Commons. When he attempted to file nomination papers as a proposed candidate for Mayor of the City of Toronto, he was told that his nomination would be rejected because he was a sitting member of the House of Commons. Section 37(1), para. 3 of the Municipal Act provides that members of the House of Commons are ineligible to hold office as a member of council. Section 29(1) of the Municipal Elections Act, 1996 provides that a person may be nominated for office only if he or she is not ineligible under that or any other Act or otherwise prohibited by law to be nominated for or to hold the office. When the applicant tried to file his nomination papers on March 24, 2000, he asked that his eligibility to be nominated not be considered until nomination day, which was October 13, 2000. This request was denied and his nomination was rejected by the City Clerk in early April 2000. The applicant brought an application for an order of mandamus, an injunction and an order quashing ss. 29 and 35 of the Municipal Elections Act and the relevant part of s. 37(1) of the Municipal Act.

Held, the application should be dismissed.

Per Carnwath J. (Blair R.S.J. concurring): The clerk was right in deciding that she had a discretion to accept or reject a nomination before nomination day. Section 35(1), para. 1 of the Municipal Elections Act is not ambiguous in stating that all nominations filed on or before nomination day shall be examined before 4 p.m. on the Monday following nomination day. If the legislature had intended that eligibility for nomination was not to be considered until nomination day at the earliest, it would have been a simple matter to say so.

Section 3 of the Charter does not apply to municipal councils. The applicant had no Charter-protected right to be nominated for, or elected as, Mayor of Toronto. His submission that the provincial legislation excludes members of the House of Commons from participating as candidates for municipal office by virtue of their exercise of the rights enshrined in s. 3 of the Charter was undoubtedly true, but this did not necessarily infringe his right under s. 3 to be qualified for membership in the House of Commons. The applicant's inability to both sit in the House of Commons and be Mayor of Toronto at the same time did not infringe his Charter-protected right to be qualified for membership in the House of Commons. Moreover, the applicant's ineligibility to be nominated or elected as Mayor, while sitting as a member, was trivial and insubstantial in relation to his right to be qualified for membership in the House of Commons.

Per Southey J. (dissenting): The clerk did not err in deciding that she had a discretion to accept or reject a nomination before nomination day.

Although s. 37(1), para. 3 of the Municipal Act does not affect eligibility for membership in the House of Commons, its effect is to take away the rights that members of the House of Commons otherwise would have to be elected members of council and to hold office as members of council. The right to seek election to a municipal council and to sit as a member of council is not trivial or insubstantial. It is an important right and the denial of that right to members of the House of Commons is a significant entrenchment on the rights of members of the House of Commons. Section 3 of the Charter does not protect members of the House of Commons only from laws which in terms prohibit citizens from being members of the House of Commons. Membership in the House of Commons could be made intolerable by laws which do not prohibit membership in the House. Such legislation would render ineffective the protection of s. 3 of the Charter. Section 3 protects members of the House of Commons from any laws which take from them, because of their membership in the House of Commons, material rights enjoyed by other citizens. The impugned provisions in s. 37(1), para. 3 of the Municipal Act constitute such legislation.

APPLICATION for mandamus, injunction and an order quashing certain sections of the Municipal Elections Act, 1996, S.O. 1996, c. 32 and the Municipal Act, R.S.O. 1990, c. M.45.

R. v. Edwards Books & Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713, 58 O.R. (2d) 442, 19 O.A.C. 239, 35 D.L.R. (4th) 1, 71 N.R. 161, 28 C.R.R. 1, 30 C.C.C. (3d) 385, 87 C.L.L.C. 14,001, 55 C.R. (3d) 193 (sub nom. R. v. Longo Brothers Fruit Markets Ltd., Magder v. R., R. v. Videoflicks Ltd.), consd Other cases referred to Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [1996] 2 S.C.R. 876, 178 N.B.R. (2d) 161, 137 D.L.R. (4th) 142, 201 N.R. 1, 454 A.P.R. 161, 37 C.R.R. (2d) 189; Jones v. Ontario (Attorney General) (1992), 1992 7674 (ON CA), 7 O.R. (3d) 22, 89 D.L.R. (4th) 11, 39 C.C.E.L. 238, 9 M.P.L.R. (2d) 87 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 3 Municipal Act, R.S.O. 1990, c. M.45, s. 37 Municipal Elections Act, 1996, S.O. 1996, c. 32, ss. 1, 29(1), 33, 35(1), 68(1), 70(2)

Ronald E. Carr and Peter L. Biro, for applicant.
Leslie H. Mendelson and Kalli Y. Chapman, for respondent.

[1] CARNWATH J. (BLAIR R.S.J. concurring): -- John Nunziata is a member of the House of Commons representing the riding of York South-Weston. On March 24, 2000, he attempted to file his nomination papers as a proposed candidate for Mayor of the City of Toronto. He was told his nomination would be rejected because he was a sitting member of the House of Commons, and on April 4, 2000, Novina Wong, Clerk, City of Toronto, wrote saying his nomination was rejected.

[2] Mr. Nunziata seeks relief from the clerk's decision by way of mandamus, injunction and quashing of certain sections of the Municipal Elections Act, 1996, S.O. 1996, c. 32. The court must answer two questions:

1. Was the clerk right in deciding she had a discretion to accept or reject a nomination before nomination day which, by law, is 31 days before voting day?

2. Does s. 37 of the Municipal Act, R.S.O. 1990, c. M.45, which declares members of the House of Commons ineligible to be elected a member of a council, infringe Mr. Nunziata's rights under s. 3 of the Canadian Charter of Rights and Freedoms?

BACKGROUND

[3] When Mr. Nunziata tried to file his nomination papers on March 24, 2000, he asked that his eligibility to be nominated not be considered until nomination day, which is Friday, October 13, 2000. Nevertheless, this request was denied and his nomination was rejected by the clerk in early April 2000. Mr. Nunziata's request is explained by the provisions of s. 70(2) of the Municipal Elections Act, 1996, which provides a candidate can only accept contributions during his or her election campaign and that such campaign starts on the filing of nomination papers. Mr. Nunziata hoped that by filing his nomination papers on March 24, 2000, his campaign would start that day, as would his ability to seek campaign funds. He also hoped his eligibility to be nominated and his qualification to be a certified candidate would not be considered until nomination day, Friday, October 13, 2000, at the earliest. Presumably, this was to give Mr. Nunziata an opportunity to test the waters to determine the viability of his campaign, and to ultimately decide whether to remain in the House of Commons or contest the mayoralty. When the clerk rejected his nomination, the campaign period ended and Mr. Nunziata was prevented from seeking campaign funds.

1. Was the clerk right in deciding she had a discretion to accept or reject a nomination before nomination day which, by law, is 31 days before voting day?

[4] Mr. Nunziata submits the Municipal Elections Act is ambiguous with respect to when the clerk should examine a nomination paper. Section 35 of the Municipal Elections Act deals with the examination of nomination papers and provides as follows:

35(1) The clerk shall examine each nomination that has been filed, in accordance with the following timetable:

1. All nominations filed on or before nomination day shall be examined before 4 p.m. on the Monday following nomination day.

2. Any additional nominations filed under subsection 33(5) shall be examined before 4 p.m. on the Thursday following nomination day.

[5] The clerk treats the words ". . . before 4 p.m. on the Monday following nomination day" as meaning any time up to 4 p.m. on the Monday following nomination day in the calendar year of the election year. A nomination paper may be filed as early as January 2 in any year in which an election is to be held. The clerk takes the position that the wording of s. 35(1), para. 1 gives the clerk a discretion to accept or reject the nomination in accordance with the applicable statutes and regulations.

[6] Mr. Nunziata submits that eligibility for nomination is not to be considered by the clerk until nomination day at the earliest. I reject this argument as I find no ambiguity in s. 35(1), para. 1. "Before 4 p.m. on the Monday following nomination day . . ." can mean nothing more nor less than what the words say. If the legislature intended that eligibility for nomination was not to be considered until nomination day at the earliest, it would have been a simple matter to say so. Given the plain language of the section, Mr. Nunziata's allegations of ambiguity are without merit.

[7] In addition, the reading of the section urged by Mr. Nunziata could result in the following:

(a) proposed candidates could file in January or February only to find in October they were not eligible or not qualified to be certified as candidates;

(b) contributors could donate campaign funds for a particular proposed candidate from as early as January or February in an election year, only to find on nomination day their candidate was ineligible or not qualified to be certified as a candidate;

(c) municipal staff would have to determine for the first time the eligibility and qualification of some 400 candidates for Council in the space from Friday, October 13 to Monday, October 16.

[8] Results such as these would not inspire confidence in the electoral process. I find the clerk was right in deciding she had a discretion to accept or reject a nomination before nomination day which, by law, is 31 days before voting day.

2. Does s. 37 of the Municipal Act, R.S.O. 1990, c. M.45, which declares members of the House of Commons ineligible to be elected a member of a council, infringe Mr. Nunziata's rights under s. 3 of the Canadian Charter of Rights and Freedoms?

[9] Section 3 of the Charter provides:

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

[10] Paraphrased to reflect the facts, every citizen in Canada has the right to be qualified for membership in the House of Commons.

[11] Section 37(1), para. 3 of the Municipal Act provides:

37(1) The following are not eligible to be elected a member of a council or to hold office as a member of council:

3. A member of the Assembly as provided in the Legislative Assembly Act or of the Senate or House of Commons of Canada.

[12] Paraphrased to reflect the facts, a member of the House of Commons is not eligible to be elected as Mayor of Toronto.

[13] Section 29(1) of the Municipal Elections Act provides:

29(1) A person may be nominated for an office only if,

(a) he or she is qualified to hold that office under the Act that creates it; and

(b) he or she is not ineligible under this or any other Act or otherwise prohibited by law to be nominated for or to hold the office.

[14] Paraphrased to reflect the facts, a person may be nominated as Mayor of Toronto only if that person is not ineligible under some other Act, in our case s. 37(1), para. 3 of the Municipal Act noted above. The combination of s. 37 of the Municipal Act and s. 29 of the Municipal Elections Act prohibits Mr. Nunziata from being nominated to run for Mayor of Toronto. It is this fact which prompts Mr. Nunziata to submit that his Charter-protected right to be qualified as a member of the House of Commons is infringed; it is this fact which prompted the clerk to reject his nomination papers.

[15] Before analyzing the alleged infringement of Mr. Nunziata's Charter-protected right, one preliminary matter must be dealt with. Section 3 of the Charter does not apply to municipal councils: Jones v. Ontario (Attorney General) (1992), 1992 7674 (ON CA), 7 O.R. (3d) 22, 39 C.C.E.L. 238 (C.A.). Mr. Nunziata has no Charter-protected right to be nominated for, or elected as, Mayor of Toronto.

[16] Mr. Nunziata submits the provincial legislation excludes members of the House of Commons from participating as candidates for municipal office by virtue of their exercise of the rights enshrined in s. 3. This is undoubtedly true. However, this does not necessarily infringe his rights to be qualified for membership in the House of Commons, which is his Charter-protected right. If Mr. Nunziata had never filed his nomination papers, he would have remained qualified for membership in the House of Commons; having filed his nomination papers, and the clerk having refused to receive them, Mr. Nunziata remains qualified for membership in the House of Commons. Nothing has changed.

[17] Counsel for Mr. Nunziata submits the situation has indeed changed, that the provincial legislation indirectly puts a coercive burden on him, relying on the following passage from R. v. Edwards Books & Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713 at p. 759, 35 D.L.R. (4th) 1:

It matters not, I believe, whether a coercive burden is direct or indirect, intentional or unintentional, foreseeable or unforeseeable. All coercive burdens on the exercise of religious beliefs are potentially within the ambit of s. 2(a).

(Emphasis added)

[18] Edwards does not assist Mr. Nunziata for two reasons. First, the case involved a consideration of s. 2(a) (freedom of conscience and religion) about which the Supreme Court said at p. 759:

The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one's perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs, in turn, govern one's conduct and practices. The Constitution shelters individuals and groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened.

[19] Assuming, without deciding, the above s. 2(a) analysis applies to s. 3 of the Charter can the provincial legislation be said to reasonably or actually threaten Mr. Nunziata's right to be qualified for membership in the House of Commons? I conclude it does not. His counsel fairly concedes that if the court finds an infringement of s. 3, and grants the remedy requested of striking s. 37(1), para. 3 of the Municipal Act, the inevitable result is that Mr. Nunziata is eligible to sit in the House of Commons and be Mayor of Toronto, at the same time. I find his inability to do both neither reasonably nor actually infringes his Charter-protected right to be qualified for membership in the House of Commons.

[20] Second, the passage at p. 759 of Edwards makes it clear that not every burden on religious practices offends the guarantee of freedom of religion; if that burden is "trivial or insubstantial", there is no infringement. I mean no disrespect to the office of the Mayor of Toronto when I conclude that Mr. Nunziata's ineligibility for that office, if the ineligibility can be said to be an indirect, coercive burden, is trivial and insubstantial in relation to Mr. Nunziata's right to be qualified for membership in the House of Commons. The duties and responsibilities of a member of the House, and of the Mayor of Toronto, are onerous. Neither function is trivial and insubstantial. However, the ineligibility to be nominated or elected as mayor, while sitting as a member, I find to be trivial and insubstantial in relation to Mr. Nunziata's right to be qualified for membership in the House of Commons.

[21] I find s. 37 of the Municipal Act which declares members of the House of Commons ineligible to be elected a member of a council does not infringe Mr. Nunziata's rights under s. 3 of the Canadian Charter of Rights and Freedoms.

[22] The application is dismissed.

[23] The applicant will pay to the respondent her party and party costs of the application forthwith after taxation, unless the parties agree otherwise.

[1] SOUTHEY J. (dissenting): -- This is an application for the following relief:

1. an order in the nature of mandamus compelling the respondent (the "City Clerk" or the "clerk") to accept for filing the nomination of the applicant for the office of mayor of the City of Toronto in respect of the elections to be held in the year 2000;

2. an interim and permanent injunction restraining the City Clerk from examining the nomination paper of the applicant to determine compliance with the Municipal Elections Act, 1996, S.O. 1996, c. 32, as amended (the "MEA"), until nomination day, which is October 13, 2000;

3. an order setting aside the decision of the City Clerk to reject the nomination of the applicant for the office of mayor because he is a member of the House of Commons;

4. an order quashing ss. 29 and 35 of the MEA and that part of s. 37(1) of the Municipal Act, R.S.O. 1990, c. M.45 (the "MA"), declaring a member of the House of Commons of Canada to be ineligible to be elected a member of a council or to hold office as a member of council.

[2] The following are the relevant portions of ss. 29 and 35 of the MEA:

29(1) A person may be nominated for an office only if,

(a) he or she is qualified to hold that office under the Act that creates it; and

(b) he or she is not ineligible under this or any other Act or otherwise prohibited by law to be nominated for or to hold the office.

35(1) The clerk shall examine each nomination that has been filed, in accordance with the following timetable:

1. All nominations filed on or before nomination day shall be examined before 4 p.m. on the Monday following nomination day.

2. Any additional nominations filed under subsection 33(5) shall be examined before 4 p.m. on the Thursday following nomination day.

[3] The relevant portion of s. 37 of the MA reads as follows:

37(1) The following are not eligible to be elected a member of a council or to hold office as a member of a council:

3. A member of the Assembly as provided in the Legislative Assembly Act or of the Senate or House of Commons of Canada.

[4] The reason for the application is that the applicant, who is a duly elected member of the House of Commons of Canada, is seriously considering running for the office of Mayor of the City of Toronto. Before committing himself by resigning his seat in the House of Commons, he wants to find out whether he can attract sufficient financial support for his candidacy. Under s. 70 of the MEA he can only accept contributions if he is a candidate, and only during his election campaign period. Under s. 68(1) of the MEA, that period begins on the day he files a nomination for the office. The term "candidate" is defined in s. 1 of the MEA as meaning a person who has been nominated under s. 33. Section 33 provides that a person may be nominated for an office by filing a nomination in the clerk's office.

[5] On March 24 last, the applicant filed with the clerk a nomination for the office of mayor. By letter dated March 29 last, the respondent informed the applicant that she was rejecting his nomination for the office of mayor, because s. 37 of the MA provides that a member of the House of Commons is not eligible to be elected a member of council or to hold office as a member of council.

[6] The respondent also referred in her letter to the provision of s. 29 of the MEA, quoted above, that a person may be nominated for an office only if he or she is qualified to hold that office under the Act that creates it and he or she is not ineligible under the MEA or any other Act or otherwise prohibited by law to be nominated for or to hold the office.

[7] The respondent correctly stated in her letter the substance of the statutory provisions to which she referred. If those provisions are constitutionally valid, the applicant is not entitled to be nominated for the office of mayor, because of his membership in the House of Commons.

[8] The applicant submits that the effect of para. 1 of s. 35(1) of the MEA quoted above is that the City Clerk is prohibited from examining nominations filed on or before nomination day until the Monday following nomination day (in this case Monday, October 16, 2000) and then before 4 p.m. on that Monday.

[9] I see no merit in that submission. The correct interpretation of the clause, in my judgment, is that the clerk must examine nominations by that time on that date, but not that the clerk must wait until that date before doing so. There are hundreds of nominations for the clerk to examine, and it might well be impossible for those examinations all to be carried out on the same day before 4 p.m. Furthermore, the interpretation suggested by the applicant is quite inconsistent with the provision in s. 35(4) that persons whose nominations are rejected should be given notice of the fact as soon as possible. The sooner such persons are informed of rejection, the greater will be the opportunity to correct any deficiency, or, if that cannot be done, to make other plans for the campaign period.

[10] The relief mentioned in clause 2 of the first paragraph of these reasons is accordingly denied.

The Charter

[11] The applicant claims that the provision in s. 37(1), para. 3 declaring a member of the House of Commons of Canada to be ineligible to be elected a member of council or to hold office as a member of council violates his rights under s. 3 of the Canadian Charter of Rights and Freedoms.

[12] Section 3 of the Charter provides:

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

[13] Although the impugned provision in s. 37(1), para. 3 of the MA does not affect eligibility for membership in the House of Commons, its effect is to take away the rights that members of the House of Commons otherwise would have to be elected members of council and to hold office as members of council. This case raises the issue as to the extent to which the legislature may strip members of the House of Commons of their rights without violating s. 3 of the Charter.

[14] There is no question that the right protected by s. 3 of the Charter is of great importance to the continuance of democratic government in Canada. In Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [1996] 2 S.C.R. 876 at p. 901, 137 D.L.R. (4th) 142, La Forest J., in relation to the right to be elected a member of the New Brunswick Legislative Assembly, said the following:

In the present case the right in issue is the very embodiment of democracy -- the right of citizens to elect their government and the right of each individual to attempt to become part of that government.

[15] Municipal councils may not be as important as the House of Commons of Canada or a legislative assembly, but they are an important part of our democratic government. The right to seek election to a municipal council and to sit as a member of council, in my opinion, is not trivial or insubstantial. It is an important right, and the denial of that right to members of the House of Commons of Canada is a significant entrenchment on the rights of members of the House of Commons.

[16] Section 3 of the Charter, in my opinion, does not protect members of the House of Commons only from laws which in terms prohibit citizens from being members of the House of Commons. Membership in the House of Commons could be made intolerable by laws which do not prohibit membership in the House. Such legislation would render ineffective the protection of s. 3 of the Charter.

[17] In my opinion, s. 3 protects members of the House of Commons from any laws which take from them, because of their membership in the House of Commons, material rights enjoyed by other citizens. In my opinion, the impugned provisions in s. 37(1), para. 3 of the MA constitute such legislation. In the result, I hold that the words in para. 3 "or House of Commons of Canada" violate the rights of the applicant under s. 3 of the Charter. The impugned words in para. 3 will be struck out.

[18] Having disposed of the impugned provision in s. 37(1), para. 3 of the MA, I can see no reason why ss. 29 and 35 of the MEA violate the Charter, or are invalid for any other reason.

[19] Counsel for the respondent did not attempt to justify the impugned provision under s. 1 of the Charter, in the event she failed in her argument that the words did not violate Charter rights. This is not surprising. Evidence was given of situations in London, England, New Zealand, France and the United States, where persons holding one elected office have run for another elected office without resigning before the election from the office first held.

[20] It was acknowledged that there is no legal requirement that a member of the House of Commons of Canada or the mayor of the City of Toronto refrain from other gainful employment while holding office. If the mischief sought to be avoided by the legislation is the holding of the two offices concurrently, the section could have achieved that result by requiring a person elected as mayor to resign from the House of Commons before taking office as mayor. It was unnecessary to prohibit him from running for office.

[21] The Attorney General for Ontario did not appear before this court to defend the impugned provision despite having been served with a notice of constitutional question.

[22] For the foregoing reasons the following relief is granted:

1. An order will go striking out in s. 37(1), para. 3 of the MA the words "or House of Commons of Canada".

2. An order will go setting aside the decision of the City Clerk to reject the nomination of the applicant for the office of mayor, because the applicant is a member of the House of Commons of Canada and compelling the City Clerk to accept for filing the nomination of the applicant for the office of mayor in respect of the elections to be held in the year 2000.

3. In all other respects, the application is dismissed.

[23] The respondent will pay to the appellant his party and party costs of the application forthwith after taxation thereof, unless the parties can reach agreement regarding such costs.

Application dismissed.