CITATION: None of the Above Direct Democracy Party v. Chief Electoral Officer of Ontario 2022 ONSC 3498

DIVISIONAL COURT FILE NO.: 303/18

DATE: 20220613

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, J.A. Ramsay and Nishikawa JJ.

BETWEEN:

None of the Above Direct Democracy Party

Applicant

– and –

Chief Electoral Officer of Ontario

Respondent

Saba Ahmad, for the Applicant

Andrew Bernstein and Jonathan Silver, for the Respondent

HEARD at Toronto by videoconference: March 10, 2022

REASONS FOR DECISION

Nishikawa J.

Overview

[1] The Applicant, the None of the Above Direct Democracy Party (“NOTA”), brings this application for judicial review, challenging the responses of the Chief Electoral Officer of Ontario (the “CEO”) to NOTA’s complaints about the exclusion of its candidates from candidate debates organized by third parties. NOTA seeks relief in the nature of mandamus and asks the court to set aside the CEO’s responses and remit the matter to the CEO for reconsideration.

[2] The issues raised in this application include whether the CEO’s responses are subject to judicial review and, if so, whether the CEO has authority to require that candidate debates organized by third parties include all candidates.

[3] NOTA submits that the CEO’s responses to its complaints were unreasonable because the CEO failed to interpret the relevant statutory provisions in a manner consistent with Charter values, specifically, s. 3, which guarantees every citizen the right to vote in federal and provincial elections. NOTA takes the position that the organization of candidate debates constitutes political advertising and that the CEO must regulate them to ensure that all candidates are included.

[4] The CEO’s position is that NOTA’s application should be dismissed for delay. Alternatively, if this court exercises its discretion to hear the matter, NOTA submits that the matters raised by NOTA are not subject to judicial review. If judicial review is available, the CEO submits that the responses were reasonable because neither he nor Elections Ontario has jurisdiction to regulate candidate debates.

[5] NOTA’s original notice of application sought judicial review of two responses of the CEO, as further detailed in these reasons. At the outset of the hearing, NOTA sought leave to amend its notice of application to seek review of a third response made by the CEO. The CEO did not oppose. Leave to amend the notice of application was granted.[^1]

Factual Background

The Parties

[6] The Applicant, NOTA, is a political party registered in the Province of Ontario. NOTA has no central party policies beyond the binding direct democratic principles