Citation: New Blue Ontario Fund v. Ontario (Chief Electoral Officer), 2024 ONSC 1048

Divisional Court File No: 577/22

Date: 2024-02-22

Before: Sachs, Backhouse and Lococo JJ.

BETWEEN:

New Blue Ontario Fund and New Blue Party of Ontario

Applicants

– and –

Greg Essensa, Chief Electoral Officer of Ontario

Respondent

Counsel:

Daniel Naymark and Stephanie Fong, for the Applicants

Andrew Bernstein, Jonathan Silver and Amanda Wolczanski, for the Respondent

HEARD at Toronto: January 17, 2024

BY THE COURT:

Overview

[1] This is an application for judicial review relating to a refusal by the Chief Electoral Officer of Ontario (the “Respondent” or the “CEO”) to pay three quarterly per-vote subsidies to the New Blue Party of Ontario (“New Blue”) following the 2022 provincial general election.

[2] The Applicants seek an order in the nature of mandamus, compelling the CEO to make the payments to which they believe New Blue is entitled, or in the alternative, a finding that the decision was unreasonable. The CEO takes the position that amendments made to the Election Finances Act, R.S.O.1990, c. E.7 (the “EFA”) prior to the 2022 election made New Blue ineligible for the payments it is seeking. The CEO argues that this is not an appropriate case for mandamus relief, and that the decision to deny New Blue payments was reasonable based on the Respondent’s interpretation of the EFA.

[3] This application is dismissed. As explained below, the CEO rendered a reviewable decision and the test for mandamus is not met. The refusal by the CEO to pay three quarterly per-vote subsidies to New Blue following the 2022 provincial general election based on the amendments to the EFA is reasonable.

The Parties

[4] The Applicant, the New Blue Party of Ontario, is a registered political party founded in Ontario in 2020. The co-Applicant, New Blue Ontario Fund, is a not-for-profit that collects funds on behalf of the New Blue Party of Ontario (collectively the “Applicants”).

[5] The Respondent is responsible for the administration of the Elections Act, R.S.O. 1990 c. E.6 and the EFA, which regulate elections in Ontario.

The Language of the Statute

[6] Section 32.1 of the EFA provides for the payment of a quarterly allowance to political parties in Ontario that meet a certain threshold of votes. The amount of the allowance is calculated based on a formula that multiplies the number of valid votes a party’s candidates received in the most recent provincial election by an indexed subsidy amount. For ease of reference, the subsection is reproduced below:

Quarterly allowance

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

(a) two per cent of the number of valid votes cast; or

(b) five per cent of the number of valid votes cast in the electoral districts in which the registered party endorsed a candidate.

How allowance calculated

(2) For the 2021 calendar year and subsequent calendar years, each registered party’s allowance for a quarter is the amount calculated by multiplying $0.636 by the number of valid votes cast for the party’s candidates in the election referred to in subsection (1), whether or not the quarter ended on or after the day the Protecting Ontario Elections Act, 2021 received Royal Assent.

[7] Prior to the June 2022 election, the Legislature enacted s. 32.1(2.1) of the EFA, which adjusted the schedule of allowance payments for 2022 and 2023 (the “Adjustment Payment”). Subsection 32.1(2.1) provided that the second payment for the 2022 calendar year shall be the amount calculated for the three remaining quarters of that year, plus the amount calculated for the first quarter of the 2023 calendar year. The subsection specified that no further payments would be made for the remainder of 2022 or the first quarter of 2023. The subsection is reproduced below:

Adjusted payment schedule for 2022 and 2023

(2.1) The following adjustments are made respecting the payment of the allowances under subsection (1):

1. The first payment for the 2022 calendar year shall be the amount otherwise calculated for the first quarter of that year.

2. The second payment for the 2022 calendar year shall be the amount calculated for the three remaining quarters of that year, plus the amount calculated for the first quarter of the 2023 calendar year.

3. No further payment shall be made for the remainder of the 2022 calendar year or for the first quarter of the 2023 calendar year.

4. Commencing with the second quarter of the 2023 calendar year, the payments shall be made as otherwise provided under subsection (1).

Factual Background

[8] New Blue fielded candidates for the first time in the June 2020 Ontario general election. It received approximately 2.7% of votes cast.

[9] In September of 2022, counsel for New Blue sent a letter to Elections Ontario demanding a lump sum payment based on the 2022 election results of the allowance for the third and fourth quarters of 2022 and the first quarter of 2023. New Blue claimed that it was entitled to an allowance of $242,569.44 for this period.

The CEO’s Decision

[10] The CEO responded to New Blue’s request for payment with the Decision Letter on September 20, 2022. The CEO determined that New Blue was ineligible for the lump-sum payment that it demanded. The CEO stated in the Decision Letter that:

1. The Legislature altered payments for 2022 and 2023 quarterly allowances through s. 32.1(2.1) of the EFA by making four quarterly allowances payable before the June 2022 election.

2. The subsection prohibited further payments for the final three quarters of 2022 and first quarter of 2023.

3. The quarterly allowances for the period covered by s. 32.1(2.1) could only be calculated based on the results of the 2018 election, which was the most recent election prior to 2022 Q2.

4. The New Blue Party was therefore not eligible to receive any payment until 2023 Q2 (i.e., the first quarter after the period covered by s. 32.1(2.1)).

Relief Sought by the Applicants

[11] The Applicants commenced an application for judicial review in October 2022, seeking to quash the CEO’s decision. In December 2022, the Applicants amended their application to seek an order in the nature of mandamus, based on the theory that the CEO had not rendered a reviewable decision.

[12] The Applicants seek an order compelling the CEO to pay them an allowance for the final two quarters of 2022 and the first quarter of 2023. In the alternative, if this Court finds that the CEO’s Decision Letter constitutes a decision, then the Applicants ask this Court to quash the decision as being unreasonable since it is contrary to the plain language of the statute, fails to grapple with the purpose of the statute and fails to take into account Charter[^1] values.

Jurisdiction and Standard of Review

[13] The Divisional Court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Pursuant to s. 2(1), this Court has the power to make an order in the mature of mandamus on an application for judicial review.

[14] The Applicants submit that the CEO never rendered a reviewable decision and seek an order in the nature of mandamus. The Applicants suggest that no standard of review applies.

[15] The Respondent submits that the application remains a challenge to the CEO’s interpretation of his enabling statute and that the appropriate standard of review is reasonableness. The parties agree that, if mandamus is not available, the standard of review is reasonableness.

[16] As explained below, mandamus is not available. Therefore, the standard of review is reasonableness.

Analysis

The Applicants’ Position on Mandamus

[17] The Applicants submit that the CEO has misunderstood his mandatory, non-discretionary obligations under the EFA. They argue that the mandamus analysis applies on this application because the CEO was not making a decision. Rather, his role in respect of the quarterly allowance is a “purely mechanical, non-discretionary paymaster role …tasked with carrying out the mechanics of a mandatory payment scheme.” The Applicants submit that the analysis is different from that on the more commonly encountered application for judicial review of a decision by a statutory decision-maker. They argue that mandamus analysis applies where, as here, a public official is mandated to make a payment rather than to make a decision or otherwise exercise discretion.

The Test for Mandamus is not made out

[18] In the letter sent to the CEO claiming that the quarterly allowance was owed to New Blue, its counsel took the opposite position from the position taken on this application that the CEO was not making a decision. Counsel asserted in the letter that it was the CEO’s role to determine and direct payment of this allowance and that should the quarterly allowance be declined, “we ask that you provide reasons for that decision…” ([Emphasis added.)

[19] In the initial notice of application, the Applicants pleaded that the CEO made a decision which affected their legal rights and privileges. The style of proceeding included: “And in the Matter of a decision dated September 20, 2022 issued by the Chief Electoral Officer of Ontario pursuant to the Election Finances Act, R.S.O. 1990, c. E.7”. Paragraph 1(a) sets out the claim for relief sought: “An order quashing and setting aside the decision of the respondent Chief Electoral Officer of Ontario…”. The grounds for relief claim that the “CEO erred in interpreting the EFA” (para. 2(n)); that the “CEO wrongly determined New Blue’s eligibility (para. 2(o)); and that the Decision of the CEO amounts to the exercise of a “statutory power of decision… within the meaning of section 2(1) of the Judicial Review Procedure Act” (para. 2)(p)). [Emphasis added.]

[20] The Respondent consented to the Applicants amending their application whereby the primary claim was amended to claim mandamus relief. The grounds for relief continued to claim that the “CEO wrongly determined New Blue’s eligibility…” but pleaded that this was purely ministerial in nature.

[21] By amending its pleading to seek an order of mandamus, the Applicants invite the court to conduct a de novo interpretation of s.32(1) of the EFA, without examining the CEO’s decision in light of submissions before him, to determine whether it was reasonable as Vavilov[^2] instructs.

[22] A reviewing court must assess the “true or real nature” of an application, to distill the essence of the dispute. As Justice Stratas has explained, the “form of the pleading takes a back-seat to its substance”: Schmidt v. Canada (Attorney General), 2018 FCA 55, [2019] 2 F.C.R. 376, at para. 18, leave to appeal refused [2018] S.C.C.A. No. 253. The court assesses the pleading “holistically and practically” based on “a realistic appreciation of the practical result” sought by the applicant: (Grand River Enterprises Six Nations Ltd. v. Canada (Attorney General), 2017 ONCA 526, at para. 46).

[23] Despite claiming mandamus, the court is asked to deal with the same case that was pled in the original application. The Applicants’ real disagreement is with the CEO’s interpretation of the EFA. As the Applicants admitted in their first pleading, the CEO’s decision was an exercise of a “statutory power of decision” under section 2(1) of the JRPA. The CEO exercised his statutory authority under the EFA and decided that New Blue was not entitled to the quarterly allowance payment it was seeking. This is a decision affecting New Blue’s legal rights and entitlement to privileges under the EFA.

[24] The Applicants state in their factum that the key question for the court is: “properly interpreted, does the EFA require the CEO to pay quarterly allowances to New Blue for Q3 2022, Q4 2022 and Q1 2023?”[^3] (emphasis added).

[25] Vavilov explains that when “a legislature has created an administrative decision-maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it.” Thus, when an administrative decision is challenged, the Court “should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness”: Vavilov, at paras. 24-25. The Legislature has entrusted the CEO with responsibility to answer what the Applicants have identified as the key question.

[26] The Applicants’ suggestion that s. 32.1 of the EFA is “mechanical” and “unequivocal” is undermined by its over ten pages of interpretive arguments in its factum. In any event, the CEO has the statutory authority to decide all questions that come before him, including the appropriate interpretation of the EFA. His decision on that issue is entitled to deference by this court. The purpose of an order of mandamus is to compel the decision-maker to make a decision that it has failed or refused to make. Mandamus thus lies only if no decision has yet been made: Canada (Attorney General) v. Iris Technologies Inc., 2021 FCA 244, 192 C.P.R. (4th) 171, at para. 5.

[27] As noted above, the CEO determined that New Blue was not eligible to receive any payment and gave reasons for it. The CEO interpreted the subsection as requiring the calculation to be based on the results of the 2018 election, which was the most recent election prior to 2022 Q2. This is repeatedly referred to as a “decision” in the Applicants’ pleading.

[28] We conclude therefore that the CEO rendered a reviewable decision when he wrote to New Blue informing it that it was ineligible for the quarterly subsidies covered by s. 32.1(2.1) of the EFA. There was no refusal to perform a public duty and no clear right to the performance of a duty to make the payments as required to meet the test for mandamus: Apotex v. Canada (Attorney General), 1993 3004 (FCA), [1994] 1 F.C. 742 (C.A.), 162 N.R. 177, aff’d 1994 47 (SCC), [1994] 3 S.C.R. 1100 (“Apotex”).

[29] The Applicants rely on three mandamus cases to support their reframed application:

a. Sunrise North Senior Living Ltd. v. Sheriff (Regional Municipality of York), 2020 ONSC 469, 443 D.L.R. (4th) 458 (Div. Ct.) (“Sunrise”) where mandamus was ordered to compel the sheriff who had refused to evict a tenant pursuant to an order of the Landlord and Tenant Board;

b. Yassin v. Canada (Public Safety and Emergency Preparedness), 2018 FC 423 (“Yassin”) where mandamus was ordered to compel the Minister to render a decision on a request for ministerial relief; and

c. 407 ETR Concession Company Limited v. Ontario (Registrar of Motor Vehicles) (2005), 2005 49963 (ON SCDC), 82 O.R. (3d) 703 (Div. Ct.) (“407 ETR”) where the Registrar of Motor Vehicles refused to validate or issue vehicle permits to individuals who failed to pay tolls and administrative fees owed to 407 ETR.

[30] In Sunrise, at para. 56, the court sets out the eight-part test for mandamus articulated in Apotex which is not in dispute here. In both Sunrise and Yassin, the relevant decision-makers had failed to carry out an order or to render a decision and are therefore distinguishable.

[31] 407 ETR rests on the now-outdated concept of jurisdictional questions. At para. 54, the court states: “It is the court’s function to ensure the public body does not make decisions based on a misapprehension of jurisdiction.” As set out above, Vavilov has now established that there is now only a very limited category of preliminary or jurisdictional question that escapes the uniform reasonableness standard.

[32] We conclude that the test for mandamus is not met. The CEO’s decision to deny New Blue the payments it is seeking must be reviewed on a reasonableness standard, to which we now turn.

The CEO’s Decision was Reasonable

[33] The Applicants submit that the CEO’s decision was unreasonable for three reasons:

(a) It was contrary to the plain language of the statute.

(b) It fails to grapple with the purpose of the statute.

(c) It fails to take into account Charter values as required by Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, [2024] W.W.R. 171 (“Commission scolaire”).

The Applicants’ Position as to the Express Language of the Statute

[34] According to the Applicants, s. 32(1) sets out the eligibility requirement for a party to receive an allowance “for each quarter of a calendar year”. For a given quarter, all parties that met the stated vote thresholds in “the most recent general election before that quarter” are entitled to an allowance. Given that the most recent general election before the quarters for which New Blue is demanding payment, was in 2022, and given the fact that New Blue met the vote threshold in that election, it is entitled to quarterly allowances beginning with Q3 2022. That entitlement continues until the next general election.

[35] In his decision, the CEO calculated entitlement based on the 2018 election results, which was the most recent general election before he paid the second payment. The Applicants argue that this runs contrary to the express language of s. 32(1), which calls for entitlement to be based on the most recent general election before the quarter in question, not the most recent general election before the payment. In making this submission, the Applicants rely upon the following proposition from the Supreme Court’s decision in Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150, at para. 88:

As has been noted, when the words of a provision are precise and unequivocal, their ordinary meaning plays a dominant role in the interpretive process…

[36] The Applicants also submit that the CEO’s decision runs contrary to the express language of s. 32.1(2), which fixes each eligible party’s allowance for a quarter as $0.636 per vote received “in the election referred to in subsection (1)”, being “the most recent general election before that quarter.” According to the Applicants, the plain meaning of this subsection is that for each quarter beginning with Q3 2022, parties who meet subsection (1)’s eligibility criteria are entitled to a quarterly allowance equal to $0.636 times the number of votes received in the June 2022 general election. The CEO’s decision provided the Applicants with $0 per vote for the three quarters beginning with Q3 2022.

[37] The Applicants maintain that s. 32.1(2.1), the subsection relied upon by the CEO in making his decision, does not change the entitlement to the quarterly allowances or the calculation of that entitlement. It, as its subheading suggests, only adjusts that payment schedule for that entitlement. This is clear from its express language, which states that the “adjustments are made respecting the payment of the allowances under subsection (1)”, namely allowances based on “the most recent general election before that quarter.”

[38] According to the Applicants, the Legislature knew when it enacted s. 32.1(2.1) that there was to be a general election in June 2022. If it had intended to change the eligibility of a party to a quarterly allowance it could have done so through express language. For example, it could have inserted the words, “The second payment for the 2022 calendar year shall be the amount calculated for the three remaining quarters of that year, plus the amount calculated for the first quarter of the 2023 calendar year, and in each case, these calculations shall be based on votes cast in the most recent general election before the second quarter of 2022 notwithstanding any provision to the contrary herein.”

[39] The Applicants also take issue with the CEO’s argument that because the payment for the three quarters in dispute was made before the 2022 election and s. 32.1(2.1) prohibits “further payments for the remainder of the 2022 calendar year or for the first quarter of the 2023 calendar year”, the payment for these quarters must, by implication, be based on the 2018 election results. According to the Applicants, the only reasonable interpretation of s. 32.1(2.1) was to treat the payments as advances on the amounts ultimately owing in respect of the three quarterly allowances following the 2022 election. When regular quarterly payments resume “commencing with the second quarter of the 2023 calendar year”, the CEO could then true up allowances by increasing or decreasing future payments once the amounts actually owing for those quarters are known after the 2022 election. To support this submission, the Applicants referred to Hansard, where two opposition MPs described the payments as an “advance” and were not challenged or contradicted.

The CEO’s Decision does not Ignore the Plain Language of the Statute

[40] The Applicants submit that the word “schedule” in the heading to s. 32.1(2.1) means that this subsection was only meant to change the schedule for payments, not the entitlement to those payments. However, the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 70 explicitly states that “headings are inserted in an Act or regulation for convenience of reference only and do not form part of it.” Thus, the words of the heading cannot be considered in interpreting s. 32.1(2.1).

[41] The CEO interpreted s. 32.1(2.1) as altering not only the schedule for payment of the allowances, but also as modifying the entitlement to those allowances. This interpretation is supported by the express language of s. 32.1(2.1), which refers to the following adjustments being made “respecting the payment of the allowances under subsection (1)”. It does not state that the adjustments are only with respect to the schedule for the payment of these allowances.

[42] The CEO’s interpretation of s. 32.1(2.1) is also supported by the express provision of s. 32.1(2.1) that required him to pay the allowances for the Q3 2022, Q4 2022 and Q1 2023 in a single lump sum payment before the June 2022 election. This necessarily required him to base that payment on the results of the 2018 general election, when New Blue did not exist and received no votes.

[43] Finally, the CEO’s interpretation is supported by the express language of s. 32.1(2.1)3, which required that “[n]o further payment shall be made for the remainder of the 2022 calendar year or for the first quarter of the 2023 calendar year.” Paying New Blue its allowance in Q3 of 2022 could violate that provision. Furthermore, the CEO’s interpretation is supported by the express language of s. 32.1(2.1)4, which confirms that the payments “otherwise provided under subsection (1)” resume in the second quarter of 2023.”

[44] The Applicants’ argument that the CEO should have treated the second payment as an “advance” that the CEO must “true up” once the results of the June 2022 election were known, is not supported by the wording of the legislation. The legislation provides no mechanism to adjust the lump-sum payments and “true up” any overpayments or underpayments. The fact that two opposition MPs may have referred to the payments as an “advance” during the debate about the legislation is of no weight. Nor was this fact brought to the attention of the CEO before he made his decision.

[45] In reviewing the CEO’s interpretation, it is important to remember that on questions of statutory interpretation, an administrative decision maker “holds the interpretative upper hand.” The reviewing court “should not conduct a de novo interpretation, nor attempt to determine a range of reasonable interpretations against which to compare the interpretations of the decision maker.” Rather, the court must determine whether the decision maker was alive to the “essential elements” of statutory interpretation: text, context, and purpose: Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at paras. 40-42.

[46] Thus, in a situation where there are two possible interpretations of a statute, both of which are reasonable, the interpretation adopted by the decision maker must be respected. In other words, even if it could be argued that the express language of the statute would have allowed for the interpretation put forward by the Applicants, this is not a basis for us to find that the CEO’s Decision is unreasonable.

The Purpose of the Statute

[47] According to the Applicants, the purpose of the per-vote subsidy scheme is to provide resources to political parties, particularly smaller parties, to enable them to communicate their messages and views to the public, a purpose that is vital to a healthy democracy.

[48] In 2016, the Legislature amended the election campaign financing laws in Ontario. Corporate donations were banned, and donation caps were put in place. The then Attorney General of Ontario, Yasir Naqvi, in introducing the reforms made it clear that the quarterly allowance was intended to offset the new funding constraints. In doing so, the Legislature recognized that mounting election campaigns required money and that the per-vote subsidy was a more democratic way to enable parties to participate in the political process.

[49] This purpose is consistent with the Court of Appeal’s views as to the purpose of an earlier federal quarterly allowance program on which the statute at issue is based. In Longley v. Canada (Attorney General), 2007 ONCA 852, 88 O.R. (3d) 408, at paras. 40-41, leave to appeal refused, [2008] S.C.C.A. No. 41, Blair J.A. recognized that a purpose of the subsidy scheme was to provide resources to political parties – “a central feature of the political life of this country” that “provide the means by which individuals may make their voices heard in a collective way” and that “[r]esources are essential to the ability of a party and its supporters to communicate their message and views to the public.”.

[50] In 2021, Ontario’s Attorney General, Doug Downey, introduced Bill 254, a bill extending and increasing the per-vote subsidy scheme. In doing so he stated that the purpose of the bill was “to protect the essential political dialogue that Ontarians expect to engage in with political parties across the spectrum” by “giv[ing] all parties a chance to find some financial balance.”[^4] He further stated that the extended per-vote subsidy at an increased rate would assist new and smaller parties. As put by him, “We’re extending the per-vote subsidy so that others can be in a position to articulate their positions…other groups and other people will run, who may not be connected to a party, or otherwise, or a small party,”[^5] so as to avoid a situation where “parties aren’t part of the discussion because they can’t afford to be there.”[^6] This is intended to promote “good, vigorous debate and a level playing field” and be “healthy for a democracy”.[^7]

[51] According to the Applicants, the CEO’s Decision is unreasonable both because it does not mention or deal with the purpose of the statute as articulated above and because it is inconsistent with that purpose. As a result of the decision, New Blue, a new political party, was deprived of subsidies for three quarters. Instead, their subsidies have been paid to incumbent parties who ran in the 2018 election.

[52] In discussing the purpose of s. 32.1(2.1), the Applicants acknowledge that “presumably its purpose was to increase resources available to political parties for spending on the June 2022 election campaign”, but state in their factum that treating the accelerated payments as an advance is no less consistent with that purpose than fixing those payments based on the results of the 2018 election results.

The CEO’s Decision Does Not Unreasonably Ignore the Purpose of the Statute

[53] In June 2022, there was informal email correspondence between the Applicants and Elections Ontario, asking about when New Blue would be paid its quarterly allowances. The Applicants were advised that they would be eligible for their allowance in Q2 2023.

[54] A few months later, New Blue’s counsel wrote the CEO a three-page letter demanding immediate payment of its allowance for Q3 2022, Q4 2022 and Q1 2023. The letter provided a textual interpretation of the statute but made no reference to the purpose of the legislation.

[55] The CEO rejected New Blue’s interpretation and explained why. The Applicants now submit that this decision did not address the purpose of the legislation. First, as the CEO points out, there is a real argument that submissions that were not made before the decision maker whose decision is being reviewed, should not be considered on judicial review. Since the Applicants did not argue before the CEO that his decision was inconsistent with the purpose of the legislation, they should not be able to do so now.

[56] Second, as Vavilov makes clear, at para. 91:

A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses[^8], at para. 16. The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceeding.

[57] In this case the context of the proceeding is not one where the CEO is an adjudicator. He is an officer of Ontario’s Legislative Assembly, with statutory authority to administer the EFA. As such, he was required to explain the reasons for his decision taking into account the arguments that had been put before him, not to consider every aspect of the statutory context that might bear upon his decision.

[58] Thus, we do not accept that the CEO’s decision should be considered unreasonable for failing to explicitly deal with an argument about the statute’s purpose that was not put before him.

[59] We also find that the CEO’s Decision was consistent with the statute’s purpose, a purpose he was alive to. In his decision he explained that the “Legislature altered the payment schedule” so that the Q2, Q3, and Q4 2022 and Q1 2023 allowances could be paid as a lump sum “before the June 2022 election.”

[60] While not noted in his decision, this was done to off-set the effects of COVID-19 and help parties conduct the 2022 election. Paying the Applicants a lump sum months after the June 2022 election, based on the 2022 election results, would be inconsistent with this purpose.

[61] The Applicants submit that treating the payments as an advance and readjusting afterwards is equally consistent with this purpose. A decision that is “equally consistent” with the purpose of the legislation, does not render the decision that was made, which was also consistent with the purpose of the legislation, unreasonable.

[62] Finally, while the CEO’s Decision, did have a negative impact on New Blue, a small party that ran in the 2022 election for the first time, it cannot be said that the effect of the decision is to disadvantage small parties. Other small parties, such as the Green party, were advantaged by the Decision and would be disadvantaged if the Applicants’ position as to how the statute should be interpreted were to be adopted. Since its performance in the 2022 election was worse than its performance in the 2018 election, it would be required to pay back part of the Q2 lump sum payment it received.

The CEO’s Decision is Not Unreasonable because It Failed to consider Charter Values

[63] After the CEO made his decision in this case, the Supreme Court of Canada released its decision in Commission scolaire. In Commission scolaire, five parents who were not rights holders under s. 23 of the Charter applied to have their children admitted to a French first language education program. The Minister denied their applications. The Supreme Court set aside the Minister’s decision, finding that in exercising her discretion, she was required to consider the values underlying s. 23 of the Charter (even though the parents were not rights holders) and to conduct a proportionate balancing of those values with the government’s interests.

[64] The Applicants rely on Commission scolaire for the proposition that the CEO’s Decision is unreasonable because he failed to consider the values underlying s. 3 of the Charter in making his decision.

[65] There are several problems with this submission. First, the Charter was never raised before the CEO. Second, Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, and Commission scolaire apply to decisions where the administrative decision-maker has a discretion. While, as explained above, the decision at issue was a reviewable decision, it was not a discretionary decision. Third, nothing in the Charter helps to determine the interpretation issue that the CEO had to answer – it neither favours nor disfavours subsidies to political parties being determined with reference to any particular point in time (2018 v. 2022). As already noted, if the primary value is the need to help small political parties participate in the electoral process, the Applicants’ interpretation would also have the effect of harming a small political party.

The Constituency Associations Argument

[66] While not pursued in their oral submissions, the Applicants made an argument in their factum relating to the payment of quarterly allowances payable to constituency associations. Sections 32.1(4) and (5) create a different formula for calculating allowances for constituency associations than for political parties. These subsections were not modified by the accelerated payment in subsection (2.1). The Applicants argue that the CEO’s Decision creates an “awkward incongruity” between parties receiving a lump sum payment before the 2022 election and the constituency associations continuing to receive payments each quarter.

[67] If there was any basis for assuming the Legislature’s intention was to treat parties and constituency associations in the same way this argument might have merit. However, on the face of the legislation, this was not the Legislature’s intention. It made no changes to the constituency association allowances as part of the 2021 amendments.

Conclusion

[68] For these reasons we find that the CEO’s Decision was reasonable.

[69] The application is dismissed. The Respondent as the successful party shall be entitled to costs in the agreed upon amount of $20,000.

Sachs J.

Backhouse J.

Lococo J.

Date of Release: February 22, 2024

[^1]: 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. [^2]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (“Vavilov”). [^3]: Applicants’ factum, para.16(a) (emphasis added). [^4]: “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, 2d reading, Legislative Assembly of Ontario, 42nd Parl, 1st Sess, No 230 (3 March 2021) at 0930, pp. 11715-11716 (Doug Downey); “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, 3d reading, Legislative Assembly of Ontario, 42nd Parl, 1st Sess, No 245 (13 April 2021) at 0920, p. 12589 (Doug Downey). [^5]: “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, 2d reading, Legislative Assembly of Ontario, 42nd Parl, 1st Sess, No 230 (3 March 2021) at 1010, p. 11722 (Doug Downey). [^6]: “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, 2d reading, Legislative Assembly of Ontario, 42nd Parl, 1st Sess, No 230 (3 March 2021) at 0930, pp. 11715-11716 (Doug Downey). [^7]: “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, 2d reading, Legislative Assembly of Ontario, 42nd Parl, 1st Sess, No 230 (3 March 2021) at 0930, pp. 11715-11716 (Doug Downey); see also “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, 2d reading, Legislative Assembly of Ontario, 42nd Parl, 1st Sess, No 231A (4 March 2021) at 1530, pp. 11804-11805 (Lindsey Park); “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, Standing Committee on the Legislative Assembly, 42nd Parl, 1st Sess, No M-27 (29 March 2021) at 0910, p. M-403 (Doug Downey); “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, 3d reading, Legislative Assembly of Ontario, 42nd Parl, 1st Sess, No 245 (13 April 2021) at 0920, p. 12589 (Doug Downey); “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, 3d reading, Legislative Assembly of Ontario, 42nd Parl, 1st Sess, No 246 (14 April 2021) at 0900, p. 12640 (Donna Skelly); “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, 3d reading, Legislative Assembly of Ontario, 42nd Parl, 1st Sess, No 246 (14 April 2021) at 1550, p. 12670 (Mike Schreiner); “Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly”, 3d reading, Legislative Assembly of Ontario, 42nd Parl, 1st Sess, No 246 (14 April 2021) at 1650, p. 12679 (Rick Nicholls). [^8]: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.