Council of Canadians v. AG Canada, 2015 ONSC 1825
COURT FILE NO.: CV-14-00513961-0000
DATE: 20150320
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: THE COUNCIL OF CANADIANS, THE CANADIAN FEDERATION OF STUDENTS, JESSICA McCORMICK, PEGGY WALSH CRAIG, and SANDRA McEWING, Applicants
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA, Respondents
BEFORE: Himel, J.
COUNSEL: Steven L. Shrybman and Jordan Goldblatt, for the Applicants
Christine Mohr and Andrea Bourke, for the Attorney General of Canada
Nadia Effendi, for the Chief Electoral Officer
HEARD: March 17, 2015
ENDORSEMENT
[1] This matter was before me in the Civil Practice Court following a written request by the applicants, the Council of Canadians, the Canadian Federation of Students, Jessica McCormick, Peggy Walsh Craig and Sandra McEwing (“the applicants”) dated January 25, 2015 to the Regional Senior Justice for the appointment of a case management judge. Requests for Case Management have been delegated to me as Team Leader of Civil matters for the Toronto Region. I contacted counsel to appear before me at a case conference which was scheduled for March 17, 2015.
FACTUAL BACKGROUND:
[2] The applicants are the Council of Canadians which is an independent non-partisan citizens’ interest group, the Canadian Federation of Students which represents students from across the country, the National Chairperson of the Canadian Federation of Students, and two eligible voters who had been among eight individuals who contested the results of Canada’s 41st General Election. The applicants had intended to request to schedule on an urgent basis an application brought under Rule 14.05 of the Rules of Civil Procedure and section 52 of the Constitution Act, 1982. They challenge the constitutional validity of provisions of the Fair Elections Act, (the “FEA”), which amended the Canada Elections Act, S.C. 2000, c.9. (the “CEA”). Those amendments received Royal Assent on June 19, 2014. They seek to have the court declare that the amendments infringe s. 3 (the right to vote) and s. 15(1) (the equality rights) guaranteed in the Canadian Charter of Rights and Freedoms and that such infringement cannot be justified as a demonstrable limit pursuant to s. 1 of the Charter.
[3] The applicants commenced their application on October 9, 2014. They had intended to ask that the application be heard some time prior to the Federal election which is to be held on October 19, 2015 unless the Governor General exercises his power to dissolve Parliament at an earlier date. The Attorney General of Canada will oppose the application.
[4] The applicants served a Notice of Constitutional Question on October 17, 2014 and the respondent filed a Notice of Appearance on October 16, 2014. The Attorney General for Ontario has advised it will not be responding. The applicants filed an amended Notice of Application on January 21, 2015. The Chief Electoral Officer (“CEO”) is seeking leave to intervene in the application and the other parties advise that they will consent to such an order.
[5] The application record served on January 26, 2015 consists of seven volumes with ten affidavits and includes social science evidence and four expert opinions relevant to the issue of the impact of the amendments on the right to vote. The respondent may retain its own experts and file affidavits in response but has not done so to date. The parties recognize that this process of amassing evidence and conducting cross-examinations will take some time. As a result, the applicant is now seeking to schedule a motion for interim and interlocutory injunctive relief seeking to stay the implementation and operation of the alleged impugned provisions pending the hearing of the application.
[6] The motion for injunctive relief was served on March 11, 2015 and asks the court to order a return to the terms and conditions that existed for elections in 2008 and 2011. The key issues on this motion will relate to the proposed elimination of the use of the voter information card to establish the name and/or address to obtain a ballot to vote and the proposed elimination of the “vouching” provisions of the Act. The position that will be taken is that the impugned provisions will prevent thousands of electors from exercising their right to vote and that there will be irreparable harm to those qualified electors should those provisions be in effect.
POSITION OF THE PARTIES:
[7] The position of the applicants is that a two day motion for injunctive relief should be scheduled for early May 2015 with a tight timetable for the conduct of the litigation until the motion is argued. Counsel for the Attorney General of Canada submits that the applicants have created an unfair urgency by serving materials at this late date although they were aware of the amendments for several months and of the likely date for the election. The Attorney General requests a motion date of the middle of July in order to have time to prepare materials. The parties will have to conduct cross-examinations and prepare written argument for the court within a very tight timeframe. Counsel for the proposed intervenor asks that some time be afforded to the request for production of materials by the applicant.
DECISION:
[8] In deciding whether to grant a request for an expedited hearing, the court must consider procedural fairness to both parties. That concept includes whether irreparable harm will result if the hearing is not expedited and whether a timetable can be agreed upon or set which is convenient to the court and the parties: see Apotex Inc. v. Wellcome Foundation Ltd. (1998), 228 N.R. 355 (Fed. C.A.); Canada (Minister of Citizenship & Immigration) v. Dragan, 2003 FCA 139, 25 Imm. L.R. (3d) 163, 303 N.R. 112.
[9] The application record in this case will consist of eight affidavits containing social science evidence and expert opinions. Assessing and responding to the applicants’ evidence will require time and the respondent may retain its own expert evidence. Proper preparation is necessary for such important and complex issues. The questions in this case go to the heart of a democratic system of government.
[10] The motion judge and ultimately the application judge will be required to consider complex Charter law and principles. As Team Leader for Civil matters, I am mindful of the competing interests and make the following orders for what I deem to be a reasonable yet timely schedule for the hearing of the motion:
- The motion for injunctive relief will be heard on July 2 and 3, 2015 for no more than two days. The parties will agree on the division of time, failing which the court will set the time limits for each party;
- The timetable for the conduct of the litigation will be as follows:
(a) the CEO seeks leave to intervene in order to provide information to the court on election preparation and related matters but will not take a position on the motion or application. The proposed intervenor will file a motion record by March 27, 2015, consents by the parties and a draft order with the motions office for my attention and I will consider the motion in writing;
(b) the moving party’s motion record has been served and will be filed by March 27, 2015;
(c) the CEO will serve and file its record by April 29, 2015;
(d) the Attorney General will file its record by May 15, 2015;
(e) the cross-examinations will be completed by the end of the week of June 5, 2015;
(f) the applicants will serve and file their factum by June 12, 2015;
(g) the respondent will serve and file its factum by June 23, 2015;
(h) the hearing will be confirmed with the motions office by June 26, 2015;
(i) the hearing will take place on July 2 and 3, 2015.
[11] If counsel determine that a motion to strike portions of the affidavits is necessary, they will contact Michelle Chen and book a date of either May 11 or 12, 2015 which are available dates with the court for the motion to be heard.
[12] Counsel are to return to a case conference with me scheduled for Tuesday, May 19, 2015 at 11:30 a.m. in 801 court at which time we will review the status of the litigation.
HIMEL J.
Date: March 20, 2015