ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION Singh v. Toronto District School Board and The Clerk of the City of Brampton/Corporation of the City of Brampton, 2015 ONSC 3092
COURT FILE NO.: CV-15-1908-00
DATE: 2015 05 15
B E T W E E N:
GURRATAN SINGH AND HARKIRAT SINGH
J. Siegel, Counsel for the Applicant
Applicant
- and -
PEEL DISTRICT SCHOOL BOARD AND THE CLERK OF THE CITY OF BRAMPTON/CORPORATION OF THE CITY OF BRAMPTON
M. Rea, Counsel for the Respondents Clerk of the City of Brampton/Corporation of the City of Brampton
Respondents
HEARD: May 12, 2015
REASONS FOR JUDGMENT
[1] The applicants, Gurratan Singh and Harkirat Singh, each seek an Order, pursuant to s. 98 of the Courts of Justice Act granting them 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] The applicants were both candidates in the municipal election for the City of Brampton held on Monday, October 27, 2014. Gurratan Singh (“Gurratan”) was a candidate for the office of Regional Councillor for Wards 9 and 10 in the City of Brampton. Harkirat Singh (“Harkirat”) was a candidate for the office of Public School Trustee for Wards 9 and 10 in the City of Brampton.
[3] Gurratan is a practicing criminal lawyer. He was unsuccessful in the election. Harkirat is an instructor teaching post-graduate courses in the Marketing Management and Professional Sales program at Lambton College in Toronto. He was successful in the election and was elected to the position of Public School Trustee with the Peel District School Board.
[4] Like all candidates in the municipal elections, the applicants were required to file with the Clerk of the City of Brampton a financial statement and an auditor’s report reflecting the revenue and expenses of their election campaigns. The deadline for doing so was Friday, March 27, 2015 at 2:00 p.m..
[5] The applicants campaigned together and shared campaign resources and expenses. They also shared a campaign manager, Melissa Bruno. In September, 2014, they met with Deep Saund, who, while unable to manage the day-to-day duties of their campaign, agreed to assist them in the post-election period by providing final accounting and auditing services. They engaged Jasvinder Shinda to assist with their campaign expenses on a day to day basis.
[6] The applicants’ affidavits indicate that steps were taken following the election to fulfil the financial obligations imposed on the two candidates. After the election, their campaign manager, Melissa Bruno, assumed responsibility for the final accounting process and the applicants had confidence that Mr. Saund would prepare the financial statements on time.
[7] On March 17, 2015, Mr. Saund advised Ms. Bruno and Gurratan that since he was preparing the financial statements for the campaign, he could not also act as the auditor. There is no evidence before me as to what Gurratan planned to do about this issue or whether Harkirat was aware of this development. The applicants continued to provide outstanding documents to Ms. Bruno and Mr. Saund so that the financial statements could be prepared by him.
[8] Between March 23rd and March 26th, the applicants appear to have communicated with each other about the need to complete their outstanding financial statements. On March 25, 2015, Gurratan sent what he believed was the last outstanding document to Mr. Saund and Ms. Bruno. That day, Harkirat spoke to Ms. Bruno to remind her of the filing deadline of 2:00 p.m. on March 27th, and to stress that if that deadline was not met, he would be removed from office. Following this, Harkirat attended at Mr. Saund’s office and spoke with his associate, who believed the filing deadline to be March 31, 2015. Harkirat corrected this mis-understanding with Mr. Saund’s associate.
[9] Both of the applicants appear to have relied on Ms. Bruno and Mr. Saund to complete the preparation of the financial statements and indicate that they were busy with their own work commitments. On March 27, 2015, Harkirat sought to confirm with Ms. Bruno that everything had been filed. Gurratan first realized that there was a problem when he received an “emergency” text from Harkirat that day.
[10] When, after the 2:00 p.m. filing deadline, Mr. Saund was contacted about the financial documents, he advised that he still believed that the filing deadline was March 31, 2015. However, by 5:51 p.m. on March 27, 2015, Mr. Saund had emailed the financial statements for both applicants to the Manager of Administrative Services and Elections in the office of the Clerk. The applicants were advised that they could not be accepted both because they were late and because they needed to be tendered in hard copy.
[11] Mr. Saund provided the applicants with updated financial statements later that evening, but explained that they had not been audited. Gurratan and Harkirat both assert that they were surprised to hear this because they had believed that Mr. Saund was going to take all of the required steps to complete the financial statements, including submitting them to an auditor. That evening, the applicants’ final financial documents were completed with their signatures being commissioned by a lawyer. The documents were then emailed to the Manager of Administrative Services and Elections in the Office of the Clerk at 10:58 p.m.
[12] On Saturday, March 28, 2015, the applicants retained the services of an accountant to prepare the audit of their financial statements on an emergency basis. Ultimately, Harkirat’s financial statement and auditor’s report were tendered at the Manager of Administrative Services and Elections in the Clerk’s office on April 1, 2015 at 1:17 p.m. Gurratan’s financial statements and auditor’s report were tendered with the Manager of Administrative Services and Elections in the Clerk’s office on April 2, 2015 at 1:27 p.m.
[13] I have been provided with an affidavit from Wendi Hunter, the Manager of Administrative Services and Elections of the City of Brampton Clerk’s Office. She works under the Brampton City Clerk to assist the Clerk in fulfilling the Clerk’s obligations under the Municipal Elections Act. 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). Each of the applicants was told, repeatedly, both of the existence of the financial filing obligations and that the deadline was March 27, 2015 at 2:00 p.m. 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 respondent Clerk for the City of Brampton / Corporation for the City of Brampton takes no position on this motion.
The Relevant Legislative Regime
[14] 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
[15] The applicant brings this motion under s. 98 of the Courts of Justice Act. Under s. 98 I have discretion to grant relief from forfeiture in the interests of justice. 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
[16] I have considered the factors set out in the Saskatchewan River Bungalows case and those factors that apply to this case.
[17] There can be no doubt that the applicants were well aware of their filing obligations and of the deadline. They both believed, mistakenly, that Ms. Bruno was dealing with this requirement and that Mr. Saund was going to not only complete the preparation of the documents on time, but also to arrange for the documents to be audited. Both Mr. Saund and his associate seem to have been mistaken about the filing deadline, despite the applicants advising them of the correct deadline.
[18] I am persuaded that the applicants both proceeded in good faith and believed that Mr. Saund was going to prepare their documents, have them audited, and ensure that they could be filed by the deadline. Given the importance of these filing obligations, I think that both applicants could have exercised greater diligence in ensuring that their documents were properly prepared in a timely way, in accordance to the Municipal Elections Act. However, their conduct is a far cry from that described by Cavarzan J. in Ecker v. Hamilton-Wentworth Catholic District School Board 2012 ONSC 2246 where, in declining relief in a similar situation, he said, at paragraph 13, that:
…the applicant's conduct bespeaks indifference to the necessity of complying with campaign financing rules rather than acting in good faith. I would find indifference rather than inadvertence in all of the circumstances.”
[19] I find the applicants’ conduct to be much closer to inadvertence than indifference. This was a first campaign for both of them. They appear to have believed that they had set the wheels in motion to comply with their filing obligations. Evidence of their good faith may be seen by the fact that once they realized that they had not met the deadline, they worked diligently to try to remedy their error, including hiring an auditor to complete the audit on an expedited basis. Ultimately, Harkirat was five days late and Gurratan was six days late.
[20] In my view the forfeiture of the office of the Trustee for the School Board is significant. Harikrat’s loss of that elected office, and the loss of the right to participate in the next municipal election outweigh, in my view, the error made by him in missing the filing deadline. Similarly, Gurratan’s loss of ability to participate in the next municipal election is significant and outweighs the error made by him in missing the filing deadline. Notwithstanding the importance of the deadline and the need to comply with it, I find that the damage caused by the late filing of each of the applicants is negligible.
[21] In the result, I order:
a) That the time for each of the applicants to file with the Clerk of the City of Brampton a Financial Statement and Auditor’s Report in the prescribed form, reflecting the applicants’ 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 Applicants in the prescribed form, if the documents are 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 applicants shall not be subject to any forfeiture or penalty imposed pursuant to subsections 80(1) and 80(2) of the Municipal Elections Act. Harkirat Singh 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 Peel District School Board Trustee for Wards 9 and 10, City of Brampton. Gurratan Singh shall not be ineligible to be elected or appointed to any office to which the Municipal Elections Act applies until the next regular election.
d) There shall be no order as to costs.
Woollcombe J
Date: May 15, 2015
CITATION: Singh v. Peel District School Board and The Clerk Of The City Of Brampton/ Corporation Of The City Of Brampton, 2015 ONSC 3092
COURT FILE NO.: CR-15-1908-00
DATE: 2015 05 15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GURRATAN SINGH AND HARKIRAT SINGH
- and –
PEEL DISTRICT SCHOOL BOARD and THE CLERK OF THE CITY OF BRAMPTON/ CORPORATION OF THE CITY OF BRAMPTON
ENDORSEMENT
Woollcombe J.
Released: May 15, 2015