SUPERIOR COURT OF JUSTICE
CITATION Smith v. Toronto District School Board, 2015 ONSC 3061
COURT FILE NO.: CV-15-1907-00
DATE: 2015 05 15
ONTARIO
B E T W E E N:
DAVID SMITH
Applicant
Jack B. Siegel, Counsel for the Applicant
- and -
TORONTO DISTRICT SCHOOL BOARD AND THE CLERK OF THE CITY OF TORONTO
Tim Carre, Counsel for the Respondent Clerk for the City of Toronto
Respondents
HEARD: May 12, 2015
REASONS FOR JUDGMENT
[1] The applicant, David Smith, seeks an Order, pursuant to s. 98 of the Courts of Justice Act, granting him relief against the penalties imposed by s. 80(2) of the Municipal Elections Act for having failed to file a financial statement by the established deadline.
Background Facts
[2] David Smith was a candidate for the office of Trustee with the Toronto District School Board, Scarborough Centre, Ward 19 in the election of October 27, 2014. He had been previously elected to this position in 2010. He was the successful candidate in the election on October 27, 2014. He has worked as an accountant for over 30 years and has continued to do so since the election.
[3] Like all candidates in the municipal election, the applicant was required to file with the Clerk of the City of Toronto a financial statement and an auditor’s report reflecting the revenue and expenses of his election campaign. The deadline for doing so was Friday, March 27, 2015 at 2:00 p.m.
[4] The applicant’s affidavit indicates that he took steps to try to fulfill his obligation. On February 9, 2015, he visited the office of a Chartered Public, Logan Senathirasa, to organize for Mr. Senathirasa to prepare his documents. They discussed the March 27, 2015 deadline. On February 10, 2015, the applicant returned to Mr. Senathirasa’s office with the documentation that had been requested.
[5] The applicant was out of Canada between February 10, 2015 and March 11, 2015 in connection with his professional practice. While he attempted to reach Mr. Senathirasa during this time to follow-up on his progress, he was unable to reach him. On March 15, 2015, the applicant attended at Mr. Senathirasa’s office and made an appointment to see him the following day. On March 16, 2015, the applicant provided Mr. Senathirasa with additional materials and reminded him of the March 27, 2015 deadline.
[6] On March 23, 2015, the applicant was advised by Mr. Senathirasa that additional documents were required and provided them to him. The applicant then drove to Kenora for a work commitment. Although he planned to leave for Toronto on March 25th, he injured his foot in Kenora and as a result, delayed his return trip. On March 25, 2015, Mr. Senathirasa advised the applicant that the financial statement and auditor’s report were ready for pick-up.
[7] Although the applicant had planned to have his personal assistant pick up his documentation from Mr. Senathirasa and submit it on his behalf, he was advised by the Election Coordinator and Clerk for the City of Toronto that this was not possible as his original signature was required on the document. He was told that he could speak to the Regional Trial Coordinator at Old City Hall to discuss filing an application for an extension of time, but was unable to reach that individual by telephone. As a result, the applicant did not believe that he would be able to apply for an extension of time to file the financial documents.
[8] Although the applicant attempted to obtain a flight from Kenora to Toronto on March 26th, he was unable to do so. As he was determined to file his documents on time, he decided to embark on the 1800 km drive from Kenora to Toronto on March 26, 2015. He drove through the night, arriving in Toronto on March 27, 2015.
[9] The applicant had his personal assistant pick up his documents from Mr. Senathirasa and meet him at the Election Services office with his financial statement and auditor’s report. They met at 2:55 p.m. on March 27, 2015. The documents were tendered with the Clerk’s office at 3:13 p.m. on March 27, 2015, an hour and thirteen minutes after the deadline. At that time, he was provided with a letter indicating that he had missed the deadline and that the Clerk did not have the authority to accept the financial statement after the deadline.
[10] I have been provided with an affidavit from the Director of the Elections and Registry Services Unit on behalf of the Clerk of the City of Toronto. This affidavit makes clear that the Clerk’s Office takes significant steps to ensure that all candidates are fully aware of their obligations to file financial disclosure in a prescribed form entitled “Financial Statement – Auditor’s Report (Form 4). The Financial Statement – Auditor’s Report serves an important role in municipal and school board elections as it is the first step in ensuring the transparency of the scheme created for candidates’ financial arrangements. The Clerk of the City of Toronto has taken no position on this motion.
The Relevant Legislative Regime
[11] The Municipal Elections Act sets out both the requirements for filing a financial statement and auditor’s report (under s. 78(1)) and that the filing deadline is the last Friday in March following the election (s. 77(a)(1)). In this case, that deadline was 2:00 p.m. on March 27, 2015. There are harsh consequences of failure to comply with these provisions in that under s. 80(1) and (2), a candidate who fails to comply with s.78 forfeits any office to which he or she was elected, the office is deemed vacant, and the candidate is ineligible to be elected or appointed to any office to which the Municipal Elections Act applies until the next regular election has taken place.
Jurisdiction to Grant the Remedy Sought
[12] The applicant brings this motion under s. 98 of the Courts of Justice Act. Counsel for both the applicant and for the Clerk for the City of Toronto agree that under s. 98 I have discretion to grant relief from forfeiture in the interests of justice. They agree that the test to be applied in the exercise of my discretion was set out by the Supreme Court of Canada in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co, 1994 CanLII 100 (SCC), [1994] 2 S.C.R. 490 at paragraph 32:
The power to grant relief against forfeiture is an equitable remedy and is purely discretionary. The factors to be considered by the Court in the exercise of its discretion are the conduct of the applicant, the gravity of the breaches, and the disparity between the value of the property forfeited and the damages caused by the breach…
See also: Iorfida v. Diodati 2011 ONSC 1635.
My Decision
[13] I have considered the factors set out in the Saskatchewan River Bungalows case and those factors that apply to this case.
[14] There can be no doubt that the applicant was well aware of his filing obligation and deadline. There is no evidence before me that the applicant was late with his documents following the election in 2010. I accept that the applicant acted in good faith and made diligent attempts to file his documents on time. He was late by only one hour and thirteen minutes.
[15] In my view, the forfeiture of the office of the Trustee for the School Board is significant. The loss of that elected office, and the loss of the right to participate in the next municipal election, outweigh in this case, the error made by the applicant in missing the filing deadline by one hour and thirteen minutes. While deadlines are imposed for a reason and I acknowledge the importance of complying with them, the damage caused by the late filing here is negligible.
[16] In the result, I order:
(a) That the applicant’s time to file with the Clerk of the City of Toronto a financial statement and auditor’s report in the prescribed form, reflecting the applicant’s election campaign finances, pursuant to ss. 78(1) of the Municipal Elections Act 1996, S.O. 1996, c. 32 shall be extended for a period of ten days (“the extended filing period”) following the date of this judgment.
(b) That the Clerk accept as filed in accordance with the Municipal Election Act the financial statement and auditor’s report of the Applicant in the prescribed form, if it is submitted to the office of the Clerk for filing prior to 2:00 p.m. on the last day of the extended filing period.
(c) That upon filing with the Clerk the financial statement and auditor’s report prior to the end of the extended filing period, the applicant shall not be subject to any forfeiture or penalty imposed pursuant to subsections 80(1) and 80(2) of the Municipal Elections Act. The applicant shall neither forfeit the office to which he was elected pursuant to the Municipal Elections Act, nor shall he be ineligible to be elected or appointed to any office to which the Municipal Elections Act applies until the next regular election, and shall be deemed for all purposes to have been, throughout the period subsequent to 2:00 p.m. on March 27, 2015, the duly elected Toronto District School Board Trustee for Ward 19, Scarborough Centre.
(d) There shall be no order as to costs.
Woollcombe J.
Date: May 15, 2015
COURT FILE NO.: CR-15-1907-00
DATE: 2015 05 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAVID SMITH
- and –
TORONTO DISTRICT SCHOOL BOARD AND THE CLERK OF THE CITY OF TORONTO
REASONS FOR JUDGMENT
Woollcombe J.
Released: May 15, 2015