ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-448631
DATE: 20120802

IN THE MATTER OF an Application for a Compliance Audit of Peter Li Preti’s Election Campaign Finances pursuant to Section 81 of the Municipal Elections Act, 1996, S.O.1996 c. 32, Sched .

BETWEEN:

PETER LI PRETI Appellant – and – COMPLIANCE AUDIT COMMITTEE OF THE CITY OF TORONTO, HOWARD MOSCOE and DAN CHALEFF-FREUDENTHALER Respondents

Nancy Tourgis , and Jonathan Kappy for the Appellant

Kalli Y. Chapman , for the Respondent, Compliance Audit Committee of the City of Toronto
Paul-Erik Veel , and John Laxer for the Respondents, Howard Moscoe and Adam Chaleff-Freudenthaler

HEARD: July 3, 2012

B. P. O’Marra, J.

REASONS FOR DECISION

[ 1 ] An audit was ordered of the campaign expenses of a municipal candidate. An appeal of that order was filed and is scheduled to be heard in November 2012.

ISSUE

[ 2 ] Should the Appeal be based on the record or as a de novo hearing?

BACKGROUND

[ 3 ] Mr. Li Preti appealed the decision of the Compliance Audit Committee to the Ontario Court of Justice. The grounds are that the By-Law and conduct of the CAC did not comply with the rules of natural justice.

[ 4 ] The Record of proceedings before the CAC was reproduced in Volume II of the Appellant’s Appeal Record at pages 289-445 inclusive.

[ 5 ] Mr. Li Preti was permitted to make brief oral submissions to the CAC.

[ 6 ] On February 22, 2012 Justice Schneider ruled that the appeal will proceed on the record and not as a de novo hearing. He also deferred issues of fresh evidence and standard of review to the Appeal proper. Mr. Li Preti now appeals those preliminary rulings.

POSITION OF THE APPELLANT

[ 7 ] In essence, Mr. Li Preti submits Justice Schneider made the following errors in law:

1. He failed to consider issues of fresh evidence and standard of review together with whether the hearing would be de novo .

2. He failed to properly consider the incomplete record and the lack of reasons provided by the CAC.

3. He failed to consider that the CAC deserves little judicial deference.

[ 8 ] Counsel for the Appellant submits there was a “perfect storm” of events before the CAC that require a de novo hearing.

ANALYSIS

[ 9 ] It is important to bear in mind the “gate keeper” function of the CAC in ordering an audit. The CAC is not deciding whether a candidate has contravened the Municipal Elections Act . It decides whether there is a reasonable basis for ordering an audit.

[ 10 ] The threshold for ordering a compliance audit is low.

Vaughan (City) v. Defrancesca et al. 2008 ONCJ 762 () , 2008 O.N.C.J. 762 at para. 8 (O.C.J.) ;

Jackson v. Vaughan (2009) 59 MPLR (4 th ) 55 (Ont. Sup Crt.) , at para. 68 . Affirmed, 2010 ONCA 118 () , 2010 O.N.C.A. 118 .

[ 11 ] The Auditor has the power to review all relevant books, papers and documents of the candidate and of the Municipality or local Board.

MEA s. 81 (7) – (9).

[ 12 ] Appeals are presumptively based on the record that was before the decision maker below. Appellate Courts do not “rehear” or “retry” cases in the absence of a clear statutory mandate to the contrary.

H.L. v. Canada (Attorney-General) 2005 SCC 25 () , [2005] 1 S.C.R. 401 at para. 52 .

[ 13 ] The statutory basis for an appeal from the CAC to the Ontario Court of Justice specifies an appeal. The Court may make any decision the committee could have made.

MEA s. 81(6).

[ 14 ] Various other statutes provide for a “new trial”, “trial de novo ” or “new hearing”.

Land Titles Act , s. 26, R.S.O. 1990;

Criminal Code , s. 822(4);

Clean Water Act, 2006, S.O. c. 22, s. 76;

Environmental Protection Act, R.S.O. 1990, c. E19, s. 45(3);

Provincial Offences Act, R.S.O. 1990, c. P33, s. 127(1).

[ 15 ] An Act may specifically limit an appeal to a review of the record but explicitly make provisions for the receipt of new or additional evidence.

Health Care Consent Act , S.O. 1996, c. 2, Schedule ‘A ’, s- s. 90(9) and (10) .

FAILURE TO GIVE REASONS

[ 16 ] It is not unusual for judicial or quasi-judicial officers acting in a gate keeper function to not give reasons.

i.e.: Issuance or denial of a search warrant.

i.e.: Supreme Court of Canada refusing leave to appeal.

Lyras v. Heaps, 2008 Carswell Ontario 6348 at paras. 18 & 19, (O.C.J.) .

[ 17 ] When there is no duty to give reasons or when only limited reasons are required it is entirely appropriate for courts to consider reasons that could be offered for the decision when conducting a reasonableness review.

A.T.A. v. Alberta (Information and Privacy Commissioner) 2011 , Carswell Alta. 2068 , 2011 SCC 61 .

STANDARD OF REVIEW

[ 18 ] The question of whether the main Appeal is a review of the record below or a de novo hearing must be determined before the Court can assess the degree of deference it will show to the decision. Standard of review does not dictate form of appeal.

FRESH EVIDENCE

[ 19 ] If this appeal proceeds on a review of the record the Appellant can apply to file fresh evidence.

R. v. Palmer 1979 8 (SCC) , [1980] 1 S.C.R. 759 at para. 22 .

[ 20 ] Counsel for the Respondents advise that they will not oppose filing of fresh evidence relevant to an alleged denial of natural justice. Leave for such filing is not required in any event.

RESULT

[ 21 ] Appeal dismissed. Issues related to a fresh evidence and standard of review are properly deferred to the main Appeal.

[ 22 ] If the parties cannot agree on the matter of costs I will consider brief written submissions (no more than 3 pages) to be sent to Judicial Administration within 21 days of the release of this decision.

B. P. O’Marra J.

Released: August 2, 2012

COURT FILE NO.: CV-12-448631
DATE: 20120802

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER LI PRETI Appellant – and – COMPLIANCE AUDIT COMMITTEE OF THE CITY OF TORONTO, HOWARD MOSCOE and DAN CHALEFF-FREUDENTHALER Respondents

REASONS FOR DECISION

B. O’MARRA, J.

Released: August 2, 2012