CITATION: Singh v. Chief Electoral Officer of Canada, 2016 ONSC 6914
COURT FILE NO.: 16-68115
DATE: 2016/11/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jarnail Martin John Singh, Aleshea Wilson, John Barber, Jon Leonard James Peddie, Juanita Maldonado, Spencer Ducie Jaretzke, Lornine MacKinlay Bruce, Kathleen Ann Barclay, Eric James Seppala, Joel David Smith, Peter Joseph Zanette, Matthew Jay Eugene McCarthy, Noah Richler, Maureen Telford, Balasingham Samuel Vasantharjan and Gordon Robert Nye
Applicants
– and –
Chief Electoral Officer of Canada
Respondent
Peter Mantas, Yael Wexler, Tala Khoury, for the Applicants
Francois Villeneuve, for the Respondent
HEARD: August 23 and October 28, 2016
REASONS FOR DECISION
KANE J.
[1] This is an application under s. 477.68 of the Canada Elections Act, S.C. 2000, c. 9 (the “Act”), for an order extending the time, nunc pro tunc, of an earlier extension granted by the Chief Electoral Officer (the “CEO”) pursuant to s. 477.66(1) to complete the requisite reporting requirements (the “Return”) as required pursuant to s. 477.59 of the Act.
[2] The sixteen applicants were either a candidate (“Candidate”) or the official agent of a candidate (“O-A”) for the New Democratic Party of Canada (the “Party”) in the 42nd Federal General Election (the “Election”) in sixteen ridings in the Province of Ontario.
Background
[3] Some relevant dates as to this application are:
(a) Date of the Election – October 19, 2015;
(b) Returns for the Election pursuant to s.477.59(4) of the Act were due – February 19, 2016;
(c) Time extension granted by CEO to file Return to – March 21, 2016;
(d) Application herein filed within time, for a further retroactive time extension to file Return - April 4, 2016;
(e) Application returned and argued – August 23, 2016.
[4] Pursuant to the Act:
(a) Each candidate in the Election was required to appoint an O-A and an auditor pursuant to s. 477.1 of the Act;
(b) The O-A is responsible for administering a Candidate’s financial transactions for the electoral campaign and for reporting on those transactions in accordance with the Act: s. 477.45;
(c) The Return to be filed by an O-A for a Candidate with the CEO consists of a reporting of the financing and expenses for the Candidate’s electoral campaign and includes the auditor’s report pursuant to s. 477.62, claims, terms of any loans to the Candidate, contributions, goods and services provided to the Candidate, declarations as specified and prescribed supporting documents including bank statements, deposit slips, cancelled cheques and the Candidates’ written statement as to personal expenses regarding the campaign: s. 477.59.
[5] Each of the applicants applied to the CEO and received an approximately 1 month extension of time to file their Return beyond February 19 to March 21, 2016.
Specific Relief Sought
[6] The applicant Candidates and O-As, Singh, Seppala, Peddie, Maldonado, Barber, Telford, Vasantharajan, Richler, McCarthy, Smith, Zanette, Jaretzke, Barclay and Nye as of today have each filed their Return with the CEO. Each seeks an extension of time pursuant to s. 477.68(4) as to the filing of their Return, retroactive to their date of filing.
[7] The applicant Ms. Wilson, O-A, and Mr. MacKindlay Bruce, Candidate, have not yet filed their Return with the CEO (“Category 4 Applicants”). The Category 4 Applicants accordingly seek an adjournment of their application to a future unspecified date.
Date of Returns Filed
[8] The Return of the following applicants was filed with the CEO on the following dates:
Category 1 Applicants
• Mr. Sing – April 18, 2016 ;
• Mr. Barber – April 13, 2016;
• Mr. Peddie – April 13, 2016;
• Mr. Seppla – April 8, 2016;
• Ms. Telford - April 15, 2016; and
• Mr. Vasantharajan – April 12, 2016.
Category 2 Applicants
• Mr. Jaretzke – April 26, 2016;
• Ms. Barclay – May 2, 2016;
• Mr. Smith – May 2, 2016; and
• Mr. Zanette – May 2, 2016.
Category 3 Applicants
• Mr. Richler - August 8, 2016;
• Ms. Maldonado – August 11, 2016;
• Mr. McCarthy – August 9, 2016; and
• Mr. Nye - August 10, 2016.
Category 4 Applicants
• Ms. A. Wilson - October 25, 2016; and
• Mr. L. MacKindlay Bruce - October 25, 2016.
Position of CEO on this Application
[9] The CEO in response to this application filed no responding material and did not appear on argument. The CEO provided applicants’ counsel with:
a. Written consent of the CEO to the relief sought herein by Mr. Sing, Mr. Barber, Mr. Peddie, Mr. Seppla, Ms. Telford and Mr. Vasantharajan, the Category 1 Applicants;
b. Written notice that the CEO does not oppose the relief sough herein by Mr. Jaretzke, Ms. Barclay, Mr. Smith, Mr. Zanette and Mr. Richler, the Category 2 Applicants; and
c. Notice that the CEO will not provide written consent or notice that it does not oppose the relief sought by Ms. Malonado, Mr. McCarthy and Mr. Nye, the Category 3 Applicants.
[10] The CEO communicated no position as to the Category 4 Applicants.
Analysis
Requirements as to Judicial Time Extension
[11] Section 477.68(4) of the Act contains the relevant principles on this application for a court ordered extension of time to file a Return:
Grounds — extension
(4) The judge shall grant an order authorizing an extension unless the judge is satisfied that the official agent’s failure to provide the required documents was deliberate or was the result of their failure to exercise due diligence.
The Act therefore requires this court to grant an order extending the time to file the Return unless it appears that the delay was:
a) Deliberate, or;
b) A result of a failure to exercise due diligence.
[12] Subject to cases of deliberate delay or delayed caused by failure to exercise due diligence, s. 477.66 of the Act similarly required the CEO to grant the initial time extension granted to each applicant to March 21, 2016.
[13] The Act does not specify the length of any judicial extension.
Interpretation of s. 477.68 Prohibited Conduct
[14] The Act does not define what constitutes deliberate delay or a failure to exercise due diligence.
[15] There are no reported cases on the meaning of or the test to be applied to applications for time extensions under s. 477.68 of the Act, which came into force in June 2014: Fair Elections Act, S.C. 2014, c. l2 – Schedule A.
[16] Following the 2015 election, Ontario courts have granted judicial extensions nunc pro tunc and for a future date in several unreported decisions: Jahangir Mian, Martin Rolf Patrick Zichy, Jeffrey Everingham and Anthony Rizzo v. Chief Electoral Officer of Canada (18 May 2016), Toronto CV-16-550062 (SC); George Stroubakis v. Chief Electoral Officer of Canada (18 May 2016), Toronto CV-16-550180 (SC) and Susan Martin v. Chief Electoral Officer of Canada (18 May 2016), Toronto CV-16-550277 (SC).
Deliberate Delay
[17] By analogy, higher courts have adopted the Shorter Oxford Dictionary definition of deliberate, as “well weighed or considered; carefully thought out; formed, carried out, etc. with careful consideration and full intention; done of set purpose; studied; not hasty or rash.”: More v. The Queen, [1963] S.C.R. 522, 1963 CanLII 79 (SCC) at 530, and Parke-Davis Division v. Canada (Minister of Health), 2002 FCA 454, 2002 CarswellNat 3282 at para. 92.
[18] Deliberate is equivalent to international delay.
Failure to Exercise Due Diligence
[19] By analogy, due diligence is an established defence to strict liability offences. To make out the defence in that context, the accused must prove, on a balance of probabilities, that he/she reasonably believed in a mistaken set of facts, which if true, would render the act or omission innocent, or that he/she took all reasonable steps or took reasonable care to avoid the particular event. The standard is that of a reasonable person in the circumstances of the accused: R v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 1978 CanLII 11 (SCC) at 1326 and R. v. Pisces Fishery Inc., 2016 ONSC 618 at paras. 36, 40.
[20] A person exercises due diligence if he or she is not negligent or has taken reasonable precautions to avoid and prevent committing the act in question: R v. Wholesale Travel Group 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154, 1991, CarswellOnt 117 at paras. 183-184 and R. v. Raham, 2010 ONCA 206, 99 O.R. (3d) 241, at para. 48.
[21] Due diligence is not a standard of absolute perfection; it does not ask the applicants to exercise “superhuman effort” or take all possible steps. One need only establish a high standard of awareness and decisive, prompt and continuing action that could reasonably be expected in the circumstances: R. v. Courtaulds Fibres Canada, [1992] O.J. No 1972, 1992 CarswellOnt 223 at para. 39 (CJ) and Corporation (City of Hamilton) v. Ellis, 2010 ONCJ 217 at para. 88.
[22] The degree of care warranted is on a spectrum based on a host of factors including the gravity of the potential harm, the alternatives available, the likelihood of harm, the degree of knowledge or skill expected, and the extent to which the underlying causes of the offence are beyond the Applicants’ control: Pisces at para. 36.
[23] The law does not hold defendants liable for unforeseeable events or activities beyond which they might reasonably be expected to influence or control: Pisces at para. 36.
[24] Statutory provisions constitute legal requirements. Legislative provisions such as the requirement to file annual income tax returns and the s. 477.59(7) requirement to file a Return within four months after the polling date of a Federal Election are legally enacted provisions by Parliament which must be complied with.
[25] The seriousness of the reporting requirements is reflected by the sanctions for contravention of the extended filing requirements in the Act.
[26] Section 497.4(1) of the Act, together with the Criminal Code, classifies the contravention of these sections as strict liability offences punishable by summary conviction with a liability of a fine up to $5,000 or a term of imprisonment up to six months, or both: s. 497.4(1) of the Act and s. 787 (1) of the Criminal Code of Canada, R.S.C., 1985, c. C- 46.
[27] An unsuccessful Candidate in the Election who contravenes these reporting sections is not eligible to become a candidate in a future federal election: s. 65(i).
[28] The balance created by Parliament regarding the above potential serious consequences are contained in the power, subject to the two specified grounds, initially by the CEO as granted and subsequently by the court as now requested to extend the reporting deadline date.
[29] The court’s consideration whether to grant a time extension must include consideration of the fundamental importance of the election process within the Canadian democracy and the resulting need of citizens to undertake the important roles as Candidate or supporting roles of that election process including as O-A, auditor, etc.
Category 1 Applicants
[30] Each of the Category 1 Applicants filed the Return between April 8 and 18, 2016, being some three weeks after the CEO’s extension to March 21, 2016.
[31] The affidavits filed by each of the Category 1 Applicants satisfies this court that none of those individuals intentionally failed to file their Return by March 21, 2016 or failed to exercise due diligence in filing that Return after that date. There are a number of reasons including health, delay in actions by others to provide requisite documentation, etc. which explain the late filing of these Returns.
[32] I have no evidence supporting a conclusion of deliberate late filing or a lack of due diligence.
[33] I am supported in this conclusion by the consent of the CEO to the relief requested by these individuals.
[34] The relief as requested is granted to the Category 1 Applicants, retroactive to their above dates of filing.
Category 2 Applicants
[35] Each of the Category 2 Applicants has filed their Return between April 26 and June 27, 2016, being between one and three months after the extended deadline of March 21, 2016.
[36] The affidavits filed by each of the Category 2 Applicants, notwithstanding the later date of filing such Return, satisfies this court that none of those individuals have deliberately failed to file their Return or that they failed to exercise due diligence in their filing of their Return after March 21, 2016.
[37] There are numerous reasons presented including personal and unexpected family and health circumstances, demands of employment, learning the role of a O-A, learning to use the electronic reporting software utilized by the CEO, delay by others in providing requisite documentation, delays by others in completion of the audit and replacement of the auditor with resulting delay which explain the late filing of these Returns.
[38] I have no evidence supporting a conclusion of deliberate late filing or a lack of due diligence by any of these applicants either before or after March 21, 2016.
[39] While not consenting to the extension orders sought, the CEO does not oppose the relief requested.
[40] The relief as requested is granted to the Category 2 Applicants.
Category 3 Applicants
[41] The Category 3 Applicants’ Returns had not been accepted by the CEO as of the first return date of this application on August 23, 2016. On the chance that these later Return filings might result in questions of the CEO and further compliance work to be done, these applications were adjourned to October 28, 2016 for confirmation that such Returns have been accepted as adequate by the CEO. This Court respectfully requested the CEO to confirm its position thereon by such date.
[42] The CEO on August 24, 2016 advised that the Returns filed by Mr. Richler, Mr. Nye, Ms. Maldonado and Mr. McCarthy as required by ss. 477.59(1) of the Canada Elections Act were completed as of August 8, 10 and 11, 2016 respectively.
[43] The affidavits filed by each of the Category 3 Applicants, notwithstanding the late filing of such Returns, satisfies this court that none of those individuals have deliberately failed to file their Return or that they failed to exercise due diligence in their filing of their Return after March 21, 2016.
[44] There are numerous reasons presented including personal and unexpected family and health circumstances, demands of employment, learning the role of a O-A, learning to use the electronic reporting software utilized by the CEO, delay by others in providing requisite documentation, delays by others in completion of the audit and replacement of the auditor with resulting delay which explain the late filing of these Returns.
[45] I have no evidence supporting a conclusion of deliberate late filing or a lack of due diligence.
[46] The relief as requested is granted to the Category 3 Applicants.
Category 4 Applicants
[47] In order to ensure completion of the ss. 477.59(1) reporting requirements, the applications of the Category 4 Applicants were adjourned on August 24, to October 28, 2016.
[48] The evidence on October 28, 2016 was that the Return was filed in the case of:
a. Mr. MacKinlay Bruce on October 25, 2016; and
b. Ms. Wilson on October 25, 2016.
[49] The four month ss. 477.59(4) time period for filing a Return is a legal requirement. Clearly a Return filed 8 months beyond the statutory requirement, or 7 months after an extended deadline of March 21, 2016, is not appropriate and should not indirectly be encouraged by a court’s subsequent approval of that delay.
[50] In the case of Mr. MacKinlay Bruce who was not elected, the delay according to the multiple affidavits filed by three persons was occasioned by:
a. The resignation of his O-A who was a full time university student on March 13, 2016 due to illness and the subsequent lack of response of that O-A to inquiries as to the work performed;
b. The appointment of a new O-A on March 13, 2016;
c. The receipt on April 15, 2015 of the documentation assembled by the original O-A and the realization that little work had been done;
d. The new O-A sent the required materials to the auditor on July 11, 2016;
e. The auditor advised he would not complete the audit unless he was provided with original supporting documents which the new O-A did not have;
f. Party officials began to interface with the auditor and Elections Canada as to the missing original supporting documents and whether such originals were required to complete the audit; and
g. The auditor on October 20, 2016 advised that he had completed the audit which resulted in the filing of the Return on October 25, 2016.
[51] In the case of Ms. Wilson who was an O-A, her three affidavits indicate the delay was occasioned by:
a. Other demands on her time as a full time university student, her per part time 20 hour per week employment and the primary caregiver of two young children;
b. The extended length of this election campaign which increased campaign expenses threefold and the resulting workload of the O-A;
c. Some invoices were incorrect while other invoices were billed to other riding associations;
d. The final invoices were only received by the O-A on January 17, 2016;
e. The above necessitated an extension which was granted to March 21, 2016;
f. The audit was not completed by March 21 as the auditor only received the documentation from the O-A on March 17, 2016;
g. The O-A was unaware as advised by the auditor that she must resolve all unpaid claims which therefore required further work;
h. Revised documentation was submitted to the auditor on July 11, 2016 who was unwilling to accept the same to complete the audit;
i. The O-A obtained an extension of time to file from the CEO to July 15, 2016;
j. The relationship between the O-A and the auditor deteriorated to the point that a new auditor was retained on July 21, 2016 and the CEO was informed of the resulting further delay;
k. The new auditor on August 2, 2016 advised the O-A on August 2, 2016 that given the quantity of expenses billed and paid, he required 2 more months to complete his audit work;
l. The auditor on August 16, 2016 advised he needed additional documentation from third parties including members of the campaign, the Party, and the riding association;
m. The CEO granted a further extension to file the EDA to September 30, 2016;
n. The EDA was filed with Elections Canada on September 21, 2016;
o. The O-A received a new invoice on October 5 and was requested to provide further information to the auditor on October 13, 2016 in order to complete the audit; and
p. The auditor on October 22, 2016 advised the audit was complete which resulted in the filing of the Return on October 25, 2016.
[52] The above circumstances regarding Ms. Wilson and Mr. MacKinlay Bruce clearly are unusual. Those circumstances confirm that the late filing of those Returns was not deliberate or due a lack of due diligence in either case.
[53] Canadians are fortunate that individual citizens undertake the demanding task of acting as an O-A for a candidate in a Federal election, for no financial gain.
[54] Unexpected circumstances were responded to in a timely manner, including engaging the assistance of others to complete and file the Returns.
[55] The circumstances as to these two returns were unusual and unforeseen.
[56] I have no evidence supporting a conclusion of deliberate late filing or a lack of due diligence.
[57] The relief as requested is granted to the Category 4 Applicants upon the filing of confirmation by the CEO that such Returns have been received and are considered complete.
Mr. Justice Paul Kane
Released: November 7, 2016
CITATION: Singh v. Chief Electoral Officer of Canada, 2016 ONSC 6914
COURT FILE NO.: 16-68115
DATE: 2016/11/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jarnail Martin John Singh, Aleshea Wilson, John Barber, Jon Leonard James Peddie, Juanita Maldonado, Spencer Ducie Jaretzke, Lornine MacKinlay Bruce, Kathleen Ann Barclay, Eric James Seppala, Joel David Smith, Peter Joseph Zanette, Matthew Jay Eugene McCarthy, Noah Richler, Maureen Telford, Balasingham Samuel Vasantharjan and Gordon Robert Nye
Applicants
– and –
Chief Electoral Officer of Canada
Respondent
REASONS FOR decision
Kane J.
Released: November 7, 2016