D’Agostino v. Elections Canada, 2015 ONSC 807
COURT FILE NO.: CV-14-518251
DATE: 20150306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBIN D’AGOSTINO
Applicant
– and –
ELECTIONS CANADA
Respondent
Chris Selby and Heather Zordel, for the Applicant
No one appearing for the Respondent
HEARD: February 5, 2015
faieta, j
REASONS FOR DECISION
[1] The Applicant, being the financial agent for Stella Ambler, the Member of Parliament for the electoral district of Mississauga-Lakeshore and the nominated candidate for the upcoming Conservative Party in the forty-second general election tentatively scheduled for October 19, 2015, seeks an order under section 478.34 of the Canada Elections Act, 2000, c. 9 (“the Act’) for an order authorizing the extension of the deadline under the Act for filing a Contestant’s Nomination Campaign Return (“Nomination Return”) with the Chief Electoral Officer until the date which is 30 days following the date of this Order.
[2] For reasons described below I dismiss this motion on the grounds that this court does not have the authority, whether under the Act or at common law, to extend the statutory deadline.
Background
[3] The Applicant was appointed as the financial agent for Ms. Ambler for the purposes of the 2014 nomination contest.
[4] The nomination selection date was April 24, 2014. The deadline for filing the nomination campaign return was August 25, 2014.
[5] Under the Act a financial agent’s failure to provide a nomination campaign return is an offence that is punishable by fine and imprisonment.
[6] The Applicant was advised by a Chartered Accountant in early September 2014 that the filing of a nomination campaign return was required in the circumstances of Ms. Ambler’s nomination campaign.
[7] The Applicant did not apply to have the Chief Electoral Officer extend the deadline for filing the nomination campaign return.
[8] The Applicant asserts that a nomination campaign return was filed electronically with the Chief Electoral Officer on September 11, 2014.
[9] The submission of the paper-based nomination campaign return was delayed due to the requirement under the Act to obtain records from a bank, which effort took longer than had been expected.
[10] By letter dated October 3, 2004 the Office of the Chief Electoral Officer advised the applicant that:
To date, we have not received a signed paper copy of the Contestant’s Nomination Campaign Return. …
In the case of the nomination campaign of Stella Ambler, M.P., the return should have been submitted on or before August 25, 2014. It is an offence under paragraphs 497(1)(z.28) and 497(3)(z.06) of the Act to fail to file the required documents within this period.
The Act contains no express authority for such applications to be made late. However, in Green Party of Canada v. Canada (Chief Electoral Officer) [2002] O.J. No. 188 (Ont. Sup. Ct of Justice) the court found a residual authority to permit a late application for the filing of candidate returns. This case may be of some assistance in the event that you do attempt a late application to a court for an extension of time to file a contestant’s return. Please advise Elections Canada of any application to a judge.
[11] A paper copy of the nomination campaign return was delivered to Elections Canada on or about November 3, 2004.
[12] The Applicant states that her failure to file the nomination campaign return within the statutory filing period was due to inadvertence or an honest mistake of fact in that she believed that a nomination campaign return would not be required and that only after the filing deadline did she learn that a nomination campaign return had to be filed.
[13] The Applicant advises that Elections Canada has consented to the issuance of this Order.
The Law
[14] Section 478.23 states, in part, that:
(1) The financial agent of a nomination contestant who has accepted contributions of $1,000 or more … shall provide the Chief Electoral Officer with the following in respect of a nomination campaign:
(a) a nomination campaign return, ... on the financing and nomination campaign expenses for the nomination campaign; …
(6) The documents referred to in subsection (1) must be provided to the Chief Electoral Officer within four months after the selection date. [underlining added]
[15] Section 478.33 states, in part, that:
478.33(1) The Chief Electoral Officer, on the written application of a nomination contestant or his or her financial agent may authorize
(a) the extension of a period provided in subsection 478.23(6) or 478.3(3) or …
(2) An application may be made
(a) under paragraph (1)(a), within the period provided in subsection 478.23(6) …
(3) The Chief Electoral Officer may not authorize an extension … unless he or she is satisfied by the evidence submitted by the applicant that the circumstances giving rise to the application arose by reason of
(a) the illness of the applicant;
(b) the absence, death, illness or misconduct of the financial agent or a predecessor;
(c) the absence, death, illness or misconduct of a clerk or an officer of the financial agent, or a predecessor of one of them; or
(d) inadvertence or an honest mistake of fact. [underlining added]
[16] Section 478.34 states, in part, that:
478.34(1) A nomination contestant or his or her financial agent may apply to a judge who is competent to conduct a recount for an order
(b) authorizing an extension referred to in paragraph 478.33(1)(a) …
The applicant shall notify the Chief Electoral Officer of the application.
(2) An application may be made …
(b) under paragraph 1(b), within two weeks after, as the case may be,
(i) the rejection of an application, made in accordance with section 478.33, for the extension or correction, or
(ii) the expiration of the extended period or specified period authorized under paragraph 478.33(1)(a) or (b).
(3) A judge may not grant an order unless he or she is satisfied that the circumstances giving rise to the application arose by reason of one of the factors referred to in subsection 478.33(3).
(4) An order under subsection (1) may require that the applicant satisfy any condition that the judge considers necessary for carrying out the purposes of this Act.
[17] An overview of the Act in relation to nomination campaign returns is provided in Appendix “A”.
[18] In Fry v. Canada (Chief Electoral Officer)[1] the court, at para 11, noted:
Parliament’s intention in regulating campaign and electoral expenses is aimed at electoral fairness as an essential component of our democratic society. “These provisions seek to create a level playing field for those who wish to engage in the electoral discourse. This, in turn, enables voters to be better informed; no one voice is overwhelmed by another.” (underlining added)
[19] The authority to grant the Order sought is under s. 478.34(1)(b) of the Act. However s. 478.34(2)(b) of the Act imposes two pre-conditions on an application to a judge for an extension:
there must have been an application to the Chief Electoral Officer for an extension of the four month filing period given that the application to a judge must follow either the rejection of an application submitted to the Chief Electoral Officer or the expiration of the extension granted by the Chief Electoral Officer;
the application to the court under section 478.34(2)(b) must have been made within two weeks after either of the rejection of such application or the expiration of the extension granted by the Chief Electoral Officer;
[23] Neither pre-condition has been satisfied in this case.
[24] It is admitted that the applicant did not file an application with the Chief Electoral Officer to extend the filing deadline with the Chief Electoral Officer.
[25] The Applicant relies upon Green Party of Canada v. Canada (Chief Electoral Officer)[2]. In that case, the Green Party applied to the court pursuant to s. 434 of the Act to extend the time for filing an electoral expenses return and other documents that, through honest error and inadvertence, it had not filed with the Chief Electoral Officer within the required period. In considering that provision of the Act, which is worded very similarly to s. 478.34 of the Act, the court ruled, despite the concerns expressed by Chief Electoral Officer, that it had the jurisdiction to extend the period for filing the return was filed more than two weeks after the expiry of an extended deadline that was authorized by the Chief Electoral Officer.
[26] The court found that the application to the court for an extension of the filing deadline did not have to be brought within the time period stipulated by the Act as the word “may” in section 434(2)(b) should be given its ordinary meaning , and accordingly Parliament did not intend to make the application of time periods mandatory but, rather, intended that some residual discretion could reside with the court to entertain applications outside of those time periods if it was satisfied that the failure to bring the application within the time periods was adequately explained. The court noted that this interpretation was consistent with the general approach to limitation periods and cited the authority of Basarsky v. Quinlan[3] which provides for their extension in “special circumstances”.
[27] I note that this application is distinguishable from the Green Party decision in that one of the two pre-conditions imposed by s. 478.34(2)(b) of the Act had been satisfied as the applicant had submitted an application for an extension to the Chief Electoral Officer. Nonetheless, I respectfully disagree with the application of the Green Party decision in this instance for the following reasons:
(1) Presumption against superfluous or meaningless words
[28] It is presumed that Parliament avoids superfluous or meaningless words. See Sullivan on the Construction of Statutes[4]. To disregard the two pre-conditions (namely, the requirement to have filed an application for the extension of the deadline with the Chief Electoral Officer and the two week limitation on making application to the court to seek an extension of the deadline) imposed by the Act would have that result.
[29] This presumption can be rebutted by: (1) identifying a meaning or function for the words; or (2) considering the scheme of the Act to explain why Parliament may have wished to be redundant or include superfluous words. See Sullivan, at para. 8.28 and 8.29.
[30] The applicant submitted that the two conditions found in s. 478.34(2) were not pre-conditions to the exercise of the court’s discretion but rather were discretionary matters to be considered by the court in its determining whether to extend the filing deadline. I disagree. If the two pre-conditions were meant to be merely suggestions, then this would introduce uncertainty and potential inconsistency in the manner in which courts exercised their discretion. That approach would be inconsistent with: (1) promoting a “level playing field" in regulating Nomination Returns under the Act; and (2) the comprehensive approach used by Parliament to regulate administrative procedures that is reflected by the great length of this Act.
[31] Further, the language of s. 478.34(2)(b) shows that the two pre-conditions are limitations on the applicant’s ability to apply for an extension and are not limitations on the court’s discretion to grant an extension such as those found in s. 478.33 of the Act.
[32] The Act has been repealed and replaced by the Fair Elections Act, S.C. 2014, c.12 (“FEA”). However, as a result of a transition provision found in the FEA, the Act continues to apply to matters that arose prior to the date that the FEA came into force, such as this application. I note that the FEA removes one of the two pre-conditions found in s. 478.34(2)(b) of the Act. Its equivalent is now s. 476.86(2)(b) of FEA. Section 476.86 of FEA states, in part, that:
476.86 (1) A nomination contestant or their financial agent may apply to a judge for an order: …
(b) authorizing an extension referred to in subsection 476.84(1); …
(2) The application may be made …
(b) under paragraph (1)(b), within the two weeks after, as the case may be,
(i) if an application for an extension is not made to the Chief Electoral Officer within the period referred to in subsection 476.84(2), the end of the two-week period referred to in that subsection;
(ii) the rejection of an application for an extension made in accordance with section 476.84, or
(iii) the end of the extended period referred to in subsection 476.84(1); ... [underlining added]
[33] Accordingly clause 476.86(2)(b)(i) of FEA provides that an application for an extension of the Nomination Return filing period may be made to the court even where an application for an extension of the filing period has not been made by the applicant to the Chief Electoral Officer, if the application to the court is made within two weeks after the end of the four month filing period imposed by s. 476.75(7) of FEA. This amendment fortifies my view that the two pre-conditions found in s. 478.34(2)(b) of the Act were not intended to be ignored.
(2) Doctrine of Special Circumstances No Longer the Law in Ontario
[34] The common law doctrine of special circumstances noted in the Basarsky case has no application.
[35] In Joseph v. Paramount Canada’s Wonderland[5] the Ontario Court of Appeal stated, at para. 10, 27, 28:
At common law a court has authority add or substitute a party or to add a cause of action after the expiry of a limitation period where special circumstances exist, unless the change would cause prejudice that could not be compensated for with either cots or an adjournment. This common law doctrine does not apply to statutory deadlines for filing appeals or applications.
In any event, as a result of Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 20 courts in Ontario no longer have a common law discretion to extend a limitation period and allow a claim to be commenced after the period has expired by applying the doctrine of special circumstances.
The common law doctrine of special circumstances only affords the court the power to amend or add a claim or party to an existing action. It did not give the court the authority to allow an action to be commenced after the expiry of a limitation period. [underlining added]
(3) No power to extend a time for filing an application fixed by statute other than as prescribed by that statute.
[31] A court may rely upon an express provision in a statute which permits a court to extend, suspend or otherwise vary the limitation period. For example, s. 4(1) of the Solicitors Act, R.S.O. 1990, c. S.15, provides that a client cannot refer an account for assessment more than 12 months after the account was delivered except under special circumstances to be proved to the satisfaction of the court.
[32] Unlike s. 4(1) of the Solicitors Act there is no statutory authority under the Act given to this court to extend the time to apply to this court to extend the time period for filing of a nomination contestation return
[33] In Re Fair and Toronto (City)[6] the court found that it had no jurisdiction to grant leave to appeal or extend the time for appealing an arbitrator’s award under the Municipal Arbitration Act after the time had expired even in a case where there was fraud. The court adopted the following statements:
- “I shall certainly hold that this Act of Parliament which limits the time, could be altered otherwise than by the authority which made the enactment, that is to say, by the Legislature itself”;[7]
- “Authority is not need for the proposition that where the time is fixed by statute and the statute confers no power on the Court to extend it, the rules as to enlarging time can have no application”;[8]
[34] The court stated:
The only appeal given is conditional on its being brought within six weeks after notice that the award has been filed, and no authority is by this Act given to the Court to extend the time for appealing.[9]
Conclusion
[39] I dismiss the Applicant’s motion for the reasons given above.
Mr. Justice M. Faieta
Date: March 6, 2015
Appendix “A”
Nomination Campaign Returns under the Act
The scheme of the Act in respect of the filing of Nomination Campaigns is addressed in Division 5 of Part 18, Financial Administration, of the Act.
It provides as follows:
• When a nomination contest is held, the registered party or the registered association if the contest was held by the registered association, shall, within 30 days after the selection date, file with the Chief Electoral Officer a report setting out various matters including the name of the person selected in the nomination contest;[10]
• No nomination contestant shall, in relation to his or her nomination campaign, accept contributions or incur nomination campaign expenses unless he or she has appointed a financial agent; [11]
• The financial agent of a nomination contestant is responsible for administering the contestant’s financial transactions for his or her nomination campaign and for reporting on those transactions in accordance with the provisions of this Act; [12]
• No person, other than the financial agent of a nomination contestant, shall accept contributions to the contestant’s nomination campaign; [13]
• A formula for the limit for nomination campaign expenses is outlined in the Act; [14]
• A person who has a claim to be paid for an expense in relation to a nomination campaign shall send the invoice or other document to the nomination contestant’s financial agent or the nomination contestant, if there is not financial agent, within 3 months after the selection date;[15]
• A claim for nomination campaign expenses must be paid within four months after the selection date; [16]
• On written application of a claimant, the Chief Electoral Officer may authorize the payment of the amount claimed that has been submitted beyond the 3 month deadline or has not been paid within four months; [17]
• On written application of a claimant, a judge may authorize the payment; [18]
• A person who has sent a claim in accordance with s. 478.16 may commence proceedings in a competent jurisdiction to recover any unpaid amount at any time if the nomination contestant refuses to pay that amount or disputes that it is payable; or after the end of the three month period referred to in s. 478.17 or any extension of that period authorized in s. 478.19 or s. 478.2;
• The financial agent of a nomination contestant who has accepted contributions of $1,000 or more in total or incurred nomination campaign expenses of $1,000 or more in total shall provide the Chief Electoral Officer with, amongst other things, a nomination campaign return on the financing and nomination campaign expenses for the nomination campaign; [19]
• The nomination campaign return must be provided within four months after the selection date; [20]
• A nomination contestant who has expenses of, or who has accepted contributions of, $10,000 or more must appoint an auditor without delay; [21]
• An auditor of a nomination contestant shall report on the nomination campaign return; [22]
• A nomination contestant shall, within three months after the selection date, send to his or her financial agent a written statement that sets out any personal expenses that he or she paid;[23]
• The Chief Electoral Officer may: (1) correct a document referred to in section 478.23 or s. 478.3 if the correction does not materially affects its substance; (2) request that the nomination contestant correct such document within a specified period;[24]
• On application of the nomination contestant or his or her financial agent, the Chief Electoral Officer may authorize the extension of a period provided for in s. 478.23(6) or s. 478.3(3);[25] Such application may be made within the period provided in subsection 478.23(6) or s. 478.3(3) as the case may be;[26]
• On application of the nomination contestant or his or her financial agent, the Chief Electoral Officer may authorize the correction within a specified period of a document referred to in s. 478.23(1) or updated document referred to in s. 478.3(1);[27] Such application may be made as soon as the applicant becomes aware of the need for correction;[28]
• The Chief Electoral Officer may not authorize an extension or correction unless he or she is satisfied by the evidence submitted by the applicant that the circumstances giving rise to the application arose by certain reasons, including inadvertence or an honest mistake of fact;[29]
• A nomination contestant or his or her financial agent may apply to a judge who is competent to conduct a recount for an order (a) relieving the contestant or financial agent from complying with a request referred to in subsection 478.32(2). The applicant shall notify the Chief Electoral Officer of the application.[30] This application shall be made within the specified period referred to in s. 478.32(2) or within two weeks after the expiration of that period;[31]
• A nomination contestant or his or her financial agent may apply to a judge who is competent to conduct a recount for an order authorizing an extension referred to in paragraph 478.33(1)(a) or correction referred to in paragraph 478.33(1)(b). The applicant shall notify the Chief Electoral Officer of the application. This application shall be made within two weeks of the: (i) the rejection of an application made in accordance with section 478.33 for the extension or correction; or (ii) the expiration of the extended period or specified period authorized under paragraph 478.33(1)(a) or (b).
• A judge dealing with an application under section 478.34 or 478.36 who is satisfied that a nomination contestant or a financial agent has not provided the documents referred to in subsection 478.23(1) in accordance with this Act because of a refusal by, or a failure of , the financial agent shall , by order served personally require the financial agent to appear before the judge;[32]
• A nomination contestant may apply to a judge who is competent to conduct a recount for an order that relieves the contestant from any liability or consequence under this or any other Act of Parliament in relation to an act or omission of the contestant’s financial agent, if the contestant establishes that : (a) it occurred without his or her knowledge or acquiescence; or (b) he or she exercised all due diligence to avoid its occurrence. The contestant or his or her financial agent shall notify the Chief Electoral Officer that the application has been made.[33]
• A nomination contestant or his or her financial agent may apply to a judge who is competent to conduct a recount for an order relieving the financial agent from the obligation to provide a document referred to in subsection 478.23(1) or 478.3(1). The contestant or financial agent shall notify the Chief Electoral Officer that the application has been made.[34]
• If the Chief Electoral Officer estimates that a nomination contestant has a surplus of nomination campaign funds, the Chief Electoral Officer shall issue a notice of estimated amount of the surplus to the contestant’s financial agent; [35]
• The financial agent of a nominating contestant shall, within seven days after disposing of the contestant’s surplus nomination campaign funds, notify the Chief Electoral Officer of the amount and date of the disposal and to whom the surplus was transferred;[36]
• Every person is guilty of an offence being the financial agent of a nomination contestant, contravenes subsection 478.23(1), (2) or (6) (failure to provide nomination campaign return or related documents); [37]
• Every person who is guilty of an offence under subsection 497(1) is liable on summary conviction to a fine of not more than $2,000 or to imprisonment for a term of not more than three months, or both. [38]
• Every person is guilty of an offence who being the financial agent of a nomination contestant, wilfully contravenes subsection 478.23(1), (2) or (6) (failure to provide nomination campaign returns or related documents); [39]
• Every person who is guilty of an offence under subsection 497(1) is liable: (1) on summary conviction to a fine of not more than $20,000 or to imprisonment for a term of not more than one year, or both; or (2) on indictment to a fine of not more than $50,000 or to imprisonment for a term of not more than five years, or both; [40]
CITATION: D’Agostino v. Elections Canada, 2015 ONSC 807
COURT FILE NO.: CV-14-518251
DATE: 20150306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBIN D’AGOSTINO
Applicant
– and –
ELECTIONS CANADA
Respondent
REASONS FOR JUDGMENT
Mr. Justice M. Faieta
Released: March 6, 2015
[1] 2012 ONSC 3866,
[2] [2002] O.J. No. 188
[3] 1971 5 (SCC), [1972] S.C.R. 380
[4] Sixth Edition, Ruth Sullivan, LexisNexis, 2014, at para. 8.23
[5] [2008] O.J. No. 2239
[6] [1930] O.J. No. 93 (Ontario Supreme Court – Appellate Division)
[7] Re Fair and Toronto (City), para. 15
[8] Ibid., para. 21
[9] Ibid., para. 37
[10] Section 478.02
[11] Section 478.04
[12] Section 478.11
[13] Section 478.13
[14] Section 478.14
[15] Section 478.16
[16] Section 478.17
[17] Section 478.19
[18] Section 478.2
[19] Section 478.23
[20] Section 478.23(6)
[21] Section 478.25
[22] Section 478.28
[23] Section 478.31
[24] Section 478.32
[25] Section 478.33 (1)(a)
[26] Section 478.28 (1)(b)
[27] Section 478.33 (1)(b)
[28] Section 478.33(2)(b)
[29] Section 478.33(3)
[30] Section 478.34(1)(a)
[31] Section 478.34(2)(a)
[32] Section 478.35
[33] Section 478.36
[34] Section 487.37
[35] Section 478.4
[36] Section 478.42
[37] Section 497(1)(z.28)
[38] Section 500(1)
[39] Section 497(3)(z.06)
[40] Section 497(5)