ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-60694
DATE: 20140903
BETWEEN:
LILLY OBINA
Applicant
– and –
CITY OF OTTAWA
Respondent
Ryan Flewelling, for the Applicant
Stuart J. Huxley, for the Respondent
HEARD: July 31, 2014
REASONS FOR JUDGMENT
r. smith j.
[1] Lilly Obina (“Ms. Obina” or the “Applicant”) has applied to the Superior Court of Justice for relief against the penalty imposed for failing to file an audited financial statement of her campaign finances within the required time period. The penalty imposed is that she is ineligible to be elected as a candidate in the 2014 municipal election.
[2] Ms. Obina was an unsuccessful candidate in the 2010 municipal election in the City of Ottawa. She came second in Ward 10 with 32.48 percent of the vote.
[3] The Applicant acknowledges that she was aware that she was required to file an audited financial statement of her election campaign expenses (the “financial statement”) by 2:00 p.m. on March 25, 2011. She attended at the municipal elections office at 2:03 p.m. on March 25, 2011 and filed her unaudited financial statement. She was unable to afford to pay for an audit as she was unemployed and had a young child at the time.
[4] Ms. Obina was late in filing her financial statement by three minutes and her financial statement was unaudited. She seeks relief from the penalty imposed under s. 80(2)(b) of the Municipal Elections Act (“the Act” or “MEA”) as she wants to run in the upcoming municipal election.
Analysis
[5] Section 80(1)(a) of the Act states that:
80.(1) A candidate is subject to the penalties listed in subsection (2), in addition to any other penalty that may be imposed under this Act,
(a) If he or she fails to file a document as required under sections 78 or 79.1 by the relevant date;
[6] Section 78 of the Act requires a candidate to file a financial statement and auditor’s report reflecting the candidate’s election campaign finances. In this case, the financial statement and auditor’s report had to be filed by 2:00 p.m. on March 25, 2011 following the election.
[7] Ms. Obina acknowledged that she was aware of the March 25, 2011 deadline at 2:00 p.m. She attended at the Elections Office on March 25, 2011 at 2:03 p.m. and filed a financial statement setting out her campaign expenses but she did not obtain an auditor’s report by that date.
[8] She ultimately obtained and filed an auditor’s report of her campaign finances dated July 10, 2014. The audited report was filed about 3 years and four months after the deadline but before this application was heard.
[9] The audited financial statements are essentially the same as her unaudited financial statement, other than the auditor’s fee of $791.00. In addition, there was a typographical error of $225.00 on her claimed expenses.
[10] The Applicant reported election expenses of $13,803.00 which were not near the $27,000 spending limit.
[11] To summarize, the Applicant filed a financial statement of her campaign finances that was essentially the same as the audited financial report, which was dated July 10, 2014, however, it was filed 3 minutes late and was not audited.
Penalty
[12] The penalty for a candidate failing to file the audited financial statement by the relevant date is set out in s. 80(2)(a) and (b) of the Act. Section 80(2)(b) states as follows:
b) Until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies. 2009, c.33, Sched. 21, s. 8(44).
[13] Section 80 of the Act does not contain any provision for granting relief from the penalty imposed in s. 80(2)(b). Sections 92(3), (4), (5), and (6) of the Act set out Election Campaign Finance Offences. Charges may be laid under the Act if their expenses exceed the established limit or if they commit an offence under the Act.
[14] Section 94 of the Act states that: “A person who contravenes any provision of the Act is guilty of an offence.
[15] Under s. 92(5) of the Act, a candidate like the Applicant who failed to comply with s. 78 of the Act, by failing to provide the audited financial statement by the relevant date could be charged with an offence under the Act.
[16] If Ms. Obina had been charged with an offence under the Act, and if the presiding judge found that the candidate was acting in good faith, committed the offence inadvertently or because of an error in judgment then the penalties in s. 80(2)(b) (not being able to be elected in the next election) do not apply.
[17] Section 92(6) of the Act reads as follows:
However, if the presiding judge finds that the candidate, acting in good faith, committed the offence inadvertently or because of an error in judgment, the penalties described in subsection 80(2) do not apply 1996, c. 32, Sched. s. 92(6); 2002, c. 17, Sched. D, s. 35(2); 2009, c. 33, Sched. 21, s. 8(67).
[18] The City of Ottawa (“the City”) submits that the Superior Court does not have jurisdiction to waive the penalty imposed under s. 80(2) for late filing of the audited financial statement. The City submits that only the Ontario Court of Justice would have jurisdiction to waive the penalty under s. 92(6) if Ms. Obina had been charged with an offence under the Act. The City argues that s. 92(6) of the Act, cannot be applied because the Applicant has not been charged with any offence under the Act.
[19] The City further submits that any application for an extension of time to file the financial statement, as well as any charges under the Act, would have to be heard by the Ontario Court of Justice. As a result it submits that the Superior Court lacks jurisdiction to grant the relief requested of waiving the penalty imposed under s. 82(2)(b) of the Act.
[20] The City further submits that the Ontario Court of Justice would not have jurisdiction to grant the relief waiving the penalty under s. 82(2)(b) of the Act, because no charge was laid and the application for an extension of time was not made before the deadline of March 25, 2011. In short, the City’s position is that neither the Ontario Court of Justice or the Superior Court of Justice has jurisdiction to grant the relief requested.
[21] The City does not dispute that Ms. Obina acted in good faith and made an error of judgment, as she was unaware that she could file an audited financial statement after the March 25, 2011 deadline. She only became aware that she could file the audited statement in June of 2014 during her cross-examination, and she did so within the month.
[22] Ms. Obina’s evidence is that she failed to file an audited financial statement by the relevant deadline because she did not have the financial resources to pay for the audit at that time as she was unemployed, had a young son and had to repay a number of the contributions made to her campaign.
[23] The City acknowledged that the Applicant’s financial statement that was filed three minutes late on March 25, 2011, was publicized by being posted online, and that it did not differ materially from the audited report of her financial statement. As a result, I find that no prejudice has been suffered by the City, the electors or by any other candidates as a result of the late filing of her audited financial statement. Her campaign expenses were transparent to the public and were accurately filed.
[24] The City opposes the granting of the relief sought due to its desire to maintain the integrity of the electoral process and to avoid opening the floodgates to individual’s seeking relief from the penalty. I do not have any evidence that there would be a flood of applications to the Court for relief from the penalty in the appropriate circumstances. If any candidate sought relief from the penalty he or she would have to satisfy the court that they met the provisions of s. 92(6) namely that they acted in good faith, inadvertently or committed an error in judgment and that it would be fair and equitable in the circumstance to grant the relief requested. In addition any candidate would have to spend the time and expense to apply to Court which will act as a deterrent. As a result, I do not accept the proposition that there would be a flood of applications if I find that the Superior Court has the jurisdiction to grant a relief from the penalty imposed by s. 80(2)(b) of the Act in appropriate circumstances.
[25] I agree with the City that the integrity of the electoral process is very important. However the integrity of the electoral process would be maintained if the Court is able to grant relief from the penalty applying the criteria set out in s. 92(6) of the Act. Relief from the penalty imposed under s. 82(2)(b) could be granted if a charge had been laid against the Applicant under the Act provided the criteria set out under s. 92(6) were met. The availability of this remedy in appropriate circumstances does not detract from the integrity of the election process and exists where a charge has been laid under the Act.
[26] I agree with the reasons of Henderson J. in Niagara Falls (City) v. Diodati, 2011 ONSC 2180 (at page 7 of the Applicant’s factum) in particular with her reasons as set out in paras. 30, 31, 32 and 33 as set out below:
In the alternative, if I am wrong in finding that I have the power to grant the aforementioned relief pursuant to the CJA, I find that the provisions of s. 92(6) of the MEA must also apply to circumstances in which a municipality chooses not to prosecute a candidate for an offence listed in s. 80(1) of the MEA.
If Diodati had been prosecuted by the City and convicted of the offence of filing financial documents that show he incurred campaign expenses exceeding the prescribed maximum, under s. 92(6) the presiding judge could waive the forfeiture and the penalty set out in s. 80(2) if the judge found that " . . . the candidate, acting in good faith, committed the offence inadvertently or because of an error in judgment . . . ".
It is a basic rule of statutory interpretation that a statute should not be interpreted in a manner that would create an absurd result. In my view, it would be an absurd result if the MEA were interpreted to mean that Diodati must encourage the City to prosecute and convict him of an election offence so that he could obtain relief from forfeiture from the presiding judge. Therefore, I find that the provisions of s. 92(6) must also apply by analogy to the list of the circumstances set out in s. 80(1)(a), (b), (c) and (d).
In the present case, for reasons already stated, I find that Diodati acted in good faith, and committed the error referred to in s. 80(1)(c) inadvertently. Therefore, as an alternative to my analysis under s. 98 of the CJA, I would grant the relief requested by applying the provisions of s. 92(6) to the present circumstances.
[27] In this case I find that Ms. Obina acted in good faith and committed an error of judgment by failing to file an audited financial statement by the deadline because she lacked the financial resources to pay for the audit. She has now paid for and filed the required audited financial statement. I also have found that there is no prejudice to anyone if the penalty of prohibiting her from being elected in the upcoming 2014 municipal election is waived.
[28] I find that interpreting s. 80(2) and s. 92(6) in the manner as proposed in Diodati is consistent with the intention of the legislature, and would avoid an absurd result which would not have been intended by the legislative.
[29] I also agree with the reasons of Wood J. in the case of Braid v. Georgian Bay (Township), 2011 ONSC 3618. I find that it is not necessary to rewrite or amend the Act in interpreting the MEA to apply the provisions of s. 92(6) to the of circumstances set out in s. 80(1)(a)(b)(c) and (d). Such an interpretation resolves any conflict and avoids an absurd result, where the remedy under the Act would be available to the Applicant if she was charged with an offence under the Act, but not available if she is not charged as is the case before me.
[30] I find that the legislature intended that the relief from penalty provisions of s. 92(6) of the Act apply to the penalty imposed under s. 80(2)(b) of the Act in the circumstances where no charge has been laid.
[31] I therefore find that the Superior Court has jurisdiction to hear this application and grant the relief requested. On the evidence before me, I find that Ms. Obina acted in good faith and made an error of judgment by not filing the audited statement by the relevant date, because she lacked the financial resources to pay for the audit within the relevant time. I further find that no prejudice has been caused to any party, that she acted in good faith by filing an accurate financial statement of her campaign expenses and has paid for and filed the audited financial statement. I also find that this interpretation enhances the democratic values that underlie this Act. I therefore find that the penalty as set out in s. 80(2)(b) shall not apply to the Applicant.
Costs
[32] If the parties are unable to agree on costs, then they may make submissions within 15 days.
R. Smith J.
Released: September 3, 2014
COURT FILE NO.: 14-60694
DATE: 20140903
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LILLY OBINA
Applicant
– and –
CITY OF OTTAWA
Respondent
REASONS FOR JUDGMENT
R. Smith J.
Released: September 3, 2014