ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-53984
DATE: 20120629

BETWEEN:

HEDY FRY, MARTHA HALL FINDLAY, and JOSEPH VOLPE Applicants – and – CHIEF ELECTORAL OFFICER Respondent

Guy Regimbald, for the Applicants
Rodrigue Escayola, for the Respondent

HEARD: June 28, 2012

REASONS FOR DECISION

T.D. RAY, J.

Introduction

1The applicants are in breach of the Canada Elections Act [1] by reason of their failure to comply with the requirement that they pay their leadership expenses by December 31, 2011 pursuant to the order of Kane, J., dated January 28, 2010, and seek an order permitting an extension of time to pay their respective expenses. The respondent opposes their application.

Background

2The applicants were candidates for leadership of the Liberal Party of Canada which was decided at its convention in Montreal, December 2 and 3, 2006.

3Payment of leadership campaign expenses are governed by sections 435.23 through 435.27 of the Canada Elections Act . The scheme of these provisions is that candidates must pay their expenses within 18 months of the end of the contest, unless the Chief Electoral Officer has authorized an extended period for payment of the expenses(s) [2] , or a judge has authorized an extended period for payment of the expense(s) [3] . Non compliance with the requirements of the Act is an offence. A plain reading of these provisions suggests that if the leadership candidate has not paid the expenses within the 18 months required under the Act, then in order to avoid being in contravention of its provisions, a written application must be made to the Chief Electoral Officer who may “ on being satisfied that there are reasonable grounds for so doing ” [4] , authorize an extended period for payment and impose terms or conditions. [5] The leadership candidate may then apply to a judge [6] if the expense(s) remain unpaid after the period extended by the Chief Electoral Officer “ and the applicant establishes their inability to comply with the authorization for reasons beyond their control”. [7] The judge may “ on being satisfied that there are reasonable grounds for so doing”, authorize an extended period and/or conditions for payment of the expense(s). However, if after the 18 months has expired, the leadership candidate’s written application to the Chief Electoral Officer is refused, then an application may be made to a judge who may authorize payment “ on being satisfied that there are reasonable grounds for so doing” [8] .

4The applicants did not comply with the requirement that their leadership expenses be paid within the required 18 months of December 3, 2006, and wrote to the Chief Electoral Officer seeking authorization for payment. [9] The Chief Electoral Officer replied June 26, 2008, authorized payment of the expenses providing they were paid by December 31, 2009, and imposed a number of reporting conditions. The letter concluded by advising that “ the Chief Electoral Officer may not grant any further authorization to pay ” and if the deadline is not complied with then an application would have to be made to a judge. In fact, the applicants did not comply with the December 31, 2009 deadline, contact was made by the applicants with the Chief Electoral Officer and an application was brought before Kane, J. who ordered that the applicants were to pay their expenses by the extended deadline of December 31, 2011 – and a number of conditions were imposed. The order was not consented to by the Chief Electoral Officer but was not opposed. Counsel advise that the terms and conditions in the order essentially repeated the terms and condition imposed by the Chief Electoral Officer in his authorization.

5The applicants have not complied with the order of Kane, J. Their expenses remain unpaid. They now seek an order and an extension of a further two years to pay the expenses.

6The respondent opposes this application on the ground that the Canada Elections Act only contemplates one application to a judge – and there is no jurisdiction to grant the applicants a further extension. He also takes the position that in any event, there are no reasonable grounds for granting the order since there is no demonstrable basis for the applicant’s non-compliance with Kane, J’s order; and furthermore, there is no credible plan to pay the unpaid expenses within a further two years. He points to the following payments during the two years of the Kane, J. order and the expenses outstanding as of December 31, 2011 – as evidence that this could go on forever:

December 31, 2011 Outstanding Amounts:

Fry - $ 69,000 -Hall Findlay – $115,000 Volpe - $110,090

Payments during the two years up to December 31, 2011

Fry - $9,500 -Hall Findlay - $15,260 Volpe - $30,000

7The applicants’ position is that since the Chief Electoral Officer, in his letter of June 26, 2008, advised that no further authorization would be granted, that their application is now properly under s. 435.27(a), and they are properly before the court since the Chief Electoral Officer refused an authorization under s. 435.26(1). They acknowledge that the last written communication with the Chief Electoral Officer was in 2008.

Issues

8The issues are:

a. whether the Canada Elections Act permits a further application to a judge, where a judge has already granted an extension, and whether subsection (a) or (b) of section 435.27 apply to this application; if so, then,

b. whether the applicants have demonstrated their inability to comply was for reasons beyond their control ; and finally, if so,

c. what terms or conditions ought to be imposed.

Analysis

a) Further application where a judge has already granted an order; and whether subsection (a) or (b) of section 435.27 apply

9The scheme and language of the Canada Elections Act as it relates to campaign expenses suggest that all expenses be paid in a timely manner, certainly within 18 months. [10] Extensions may be granted, but clearly the Act anticipates that a judge’s order would be unusual, depending on the circumstances.

10Parliament’s intention in regulating campaign and electoral expenses is aimed at electoral fairness as an essential component of our democratic society. “ These provisions seek to create a level playing field for those who wish to engage in the electoral discourse. This, in turn, enables voters to be better informed; no one voice is overwhelmed by another .” [11]

11There are legislated preconditions to seeking a judge’s order. Either the Chief Electoral Officer refused the applicants extension – or granted the extension under section 435.26. If the Chief Electoral Officer refuses an extension after a written application, then the judge’s jurisdiction is found in section 435.27(a), and the judge may grant the extension “ on being satisfied there are reasonable grounds ”; or if the Chief Electoral Officer grants the extension, and the expense remains unpaid after the period extended by the Chief Electoral Officer, the judge under section 435.27(b) may extend the period if satisfied that the inability to comply was “ for reasons beyond their control ”.

12The Chief Electoral Officer’s letter of June 26, 2008 was not a refusal. To the contrary, it granted an extension. I don’t accept the applicants’ contention that the comment at the end of the letter that “ the Chief Electoral Officer may not grant any further authorization to pay ” constituted a refusal for the purpose of section 435.27(a). That was merely an explanation of the Chief Electoral Officer’s view of his authority under the Act. In fact, there was no refusal by the Chief Electoral Officer. The only other route open to the applicants’ was section 435.27(b); and that was the route taken by the applicants when they obtained the order from Kane, J.

13The condition precedent to access to section 435.27(b) is non compliance with the Chief Electoral Officer’s authorization. That was dealt with by the order of Kane, J. That condition precedent was exhausted when the application was brought before him. I don’t consider that the scheme and language of the Act permit a further application to a judge.

14On this ground alone, the applicants’ application fails.

b) Have the applicants demonstrated their inability to comply was for reasons beyond their control ;

15In any event, I am not satisfied that the applicants have demonstrated an inability to comply. There is simply insufficient evidence to enable me to conclude that the applicants’ lack of compliance was for reasons beyond their control. In any event, if I had concluded that I should hear this application on its merits, I would have adjourned it for a more complete record.

Conclusion

16The application is dismissed.

17The parties have advised that neither is seeking costs. There is therefore no order as to costs.

Honourable Justice Timothy Ray

Released: June 29, 2012

COURT FILE NO.: 12-53984
DATE: 20120629

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HEDY FRY, MARTHA HALL FINDLAY, and JOSEPH VOLPE Applicants – and – CHIEF ELECTORAL OFFICER Respondent REASONS FOR JUDGeMENT Honourable Justice Timothy Ray

Footnotes

1. 1Canada Elections Act , S.C. 2000, c. 9, s 435.24, and s. 497 (l)(q.09). These provisions are mirrored elsewhere in the Act as they apply to electoral expenses.
2. 2Canada Elections Act, section 435.26 . The Chief Electoral Officer may authorize such payments on terms i.e. extending the time.
3. 3Canada Elections Act, section 435.27 . A judge may authorize such payments and impose terms.
4. 4Section 435.26(1)
5. 5Section 435.26(2)
6. 6Section 435.27(1)
7. 7Section 435.27(b)
8. 8Section 435.27(a)
9. 9Through their respective financial agents.
10. 10Section 435.24(1)
11. 11Harper v. Canada (A.G.) 2004 SCC 33 , paragraph 62 .