Arsenault v. Progressive Conservative Party of Ontario, 2018 ONSC 1663

COURT FILE NO.: CV-18-593631

DATE: 20180309

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christopher Arsenault

Applicant

– and –

Progressive Conservative Party of Ontario and Hartley Lefton

Respondents

Tanya Granic Allen

Intervener

Jeffrey Radnoff and Charles Haworth, for the Applicant

Gina Brannan, Q.C. and Thomas Barlow, for the Respondents

Daniel Santoro, for the Intervener

HEARD: March 9, 2018

ARCHIBALD J.

REASONS FOR DECISION

1The Applicant is seeking an order granting an interlocutory injunction restraining the Progressive Conservative Party of Ontario from ending the voting period on March 9, 2018 in the leadership contest of the Progressive Conservative Party of Ontario [the “PC Party”] for a period of one week starting today.

2In support of this Application, they have submitted five affidavits of individuals who claim that they are party members who want to vote, but have not received the electronic number that is required to vote. The Intervener’s Affidavit of Mr. John Beishlag on behalf of the Tanya Granic Allen Campaign lists another 152 people who they claim have also not been able to vote. Lastly, there were four other individuals referenced in the Applicant’s supplementary record. None of the other leadership candidates other than Ms. Granic Allen have joined this application.

3For the reasons that follow, the Application is dismissed.

FACTS

FACTS

4On January 26, 2018, the PC Party announced that they would be holding a leadership contest to replace Mr. Patrick Brown. On January 31, 2018, the party released election rules under the Constitution of the PC Party. The Rules entitled its members to vote in the leadership election contest during a 7 day period from March 2, 2018 to March 8, 2018, with the voting results to be announced on March 10, 2018.

5In order to facilitate the vote, voting was only to take place electronically through an online system operated through a third party vendor, Dominion Voting Services.

6Under the leadership contest rules and at the direction of the Party, in consultation with Dominion Voting Services, every party member as of February 16, 2018 was deemed to be entitled to vote in the leadership election contest. The Party undertook to mail to eligible members a letter which included a unique verification number. Without that number, members are unable to vote. Canada Post began mailing out the numbers on February 21 which concluded on February 28, 2018.

7On March 3, 2018 the deadline for voting was extended to March 9, 2018 at 12:00 pm.

8As of 8:00 a.m. on March 9th, 2018, over 71,000 members have received numbers and approximately 60,876 have cast their ballots. It is notable that this is an all-time high turnout for the PC Party membership. The PC Party has spent approximately $1.5 million on the vote, including $250,000 for setting up the convention center for the leadership, scheduled for tomorrow March 10, 2018.

9The Applicant is in court on the basis that he along with the other 161 members did not receive the number which is required to vote.

THE ISSUES

1. Does the court have jurisdiction to consider this matter?

2. Has the Applicant met the tripartite test in order for an injunction to be granted?

Issue One – Position of the Parties

THE ISSUES

10The Applicant’s position is that the court has jurisdiction under R. 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to hear the matter and to grant an injunction. They submit that the PC party is akin to a voluntary organization whose constitution represents a contract between the association and its members. They cite the cases of Arriola v. Ryerson Students Union, 2018 ONSC 1246, at paras. 49-53 and B.(M.) v. 1011226544 Saskatchewan Inc., 2017 SKQB 107, at para. 60 which stand for the proposition that the court may exercise a supervisory role over voluntary organizations and associations. Where there are constitutional rights, duties or rules in dispute, like the case today, then our court has the authority to ensure that an association’s conduct and decisions are carried out in accordance with their applicable rules.

11The Respondents’ position is that the matter is not properly before the court and even if it is, that it is premature. Ms. Brannan pointed to the internal appeal mechanisms contained in Rule 8.12.1 of the Leadership Election Rules which gives the Chair of the Rules and Appeal Board the power to determine the interpretation, application or enforcement of the Party Constitution, Rules and Guidelines between the commencement of balloting and the announcement of the balloting results. She cites Basil v. Lower Nicola Indian Band, 2009 FC 1039, at para. 5 for the proposition that the court should not intervene in an election where the parties have not exhausted their internal rights to challenge a decision. Because the Rules set out these internal remedies, this process ought to have been followed prior to asking the court to intervene.

Analysis

Analysis

12I agree with the principle that our courts have jurisdiction over disputes between members of voluntary organizations. This has been made clear in the case law submitted by the parties. I also take no issue with the suggestion that a Superior Court has jurisdiction in some circumstances to exercise this function by way of a R. 14 application as opposed to judicial review if the applicable circumstances so require.

13The Respondents, however, have raised a valid point about the Applicant having not availed themselves of the internal dispute resolution mechanisms articulated in the Rules. The Rules and Appeal Board can hear “any question or issue” arising during the time period in question concerning these issues under Rule 8.12.1. None of the 162 individuals listed in the affidavits or the application have used that process.

14Organizations and associations have the freedom to set their own rules. If the deadlines and timelines set by an organization appear to be autocratic to its members, then that is an issue that should, firstly, be resolved through the organization’s constitution and rules and regulations. Asking our courts, however, to intervene in the process every time there is a grievance risks opening the door to an innumerable number of court challenges. There is no doubt that our courts may intervene after an election if an aggrieved party can demonstrate that there was unfairness or illegality in the process. The parties must use the internal mechanisms set out in their own rules before turning to our courts.

15On this ground alone, I would dismiss the application.

Issue Two - INJUNCTION

Issue Two - INJUNCTION

16In any event and of equal importance, I would also dismiss the application on the balance of convenience test.

THE LAW

THE LAW

17In order for an interlocutory injunction to be granted, the applicant must show that they have satisfied the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311,

a. (1) Is there a serious question to be tried?

b. (2) Will the applicant suffer irreparable harm if the injunction is not granted?

c. (3) Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits, i.e., where does the balance of convenience lie?

Position of the Parties

Position of the Parties

18The Applicant’s position is that the test is met in this case.

19First, they argue that there is a strong prima facie case that there has been a breach of the PC Party’s Constitution and Election Rules. Counsel points to several provisions which suggest that the Party is constitutionally obliged to ensure that its members can participate in electing a leader, to create an accessible voting process, and to ensure that every member is granted one vote. The circumstances of the case show that these obligations have been violated.

20Second, they argue that the inability to vote unequivocally amounts to irreparable harm. In support of this position, they cite Council of Canadians v. Canada (Attorney General), 2015 ONSC 4601, at para. 76 where Stinson J. quoted with approval the decision of Sharpe J.A. in Frank v. Canada (Attorney General), 2014 ONCA 485 holding that disenfranchisement always constitutes irreparable harm. They argue that despite the fact that that case was dealing with a general election, its principles apply here. A party leadership race is an integral aspect of the overall election process and should therefore be given the same protection. They further point to Wrzesnewskyj v. Canada (Attorney General), 2012 SCC 55, at para. 35 which states that a denial of voting rights can only be justified on the basis of the most stringent standards. Irreparable harm would be suffered by those who have been denied a chance to vote in the Progressive Conservative Leadership campaign.

21Third, the Applicant argues that the balance of convenience favours them. First, they argue that the cut-off date for membership is an entirely arbitrary date. This could easily be altered to the benefit of having more members being able to vote. And finally, not granting an extension has the potential to create further litigation. In particular, more costs and uncertainty will be incurred should the leadership results be contested. Rather, extending the deadline will create more certainty.

22First, the Respondents argue that there is no prima facie case made out. Their position remains that the issue of a cut-off date set out in Rule 25.4 is intended to ensure that there is integrity in the election process. If the party were to now change the final date, this would have the effect of re-opening the cut-off date for members to sign up to be eligible to vote. The result of this would be that the entire process to some degree would be re-opened. I agree with that submission. A plain reading of Rule 25.4 does not support any other conclusion.

23Second, counsel argues that the irreparable harm in this case is the harm suffered by the party. First, given the short timeline until the June 7th, 2018 election, another week without a leader will result in irreparable damage to the entire party. Furthermore, extending the deadline will result in the party incurring substantial costs. The leadership convention now scheduled for tomorrow will have to be rescheduled and at significant costs. It may not be possible to find another location for Saturday March 17, 2018.

24Third, the balance of convenience in this case favours the party. Having a leader in place by tomorrow will benefit the entire party membership. Second, there is no evidence of how many people have actually been disenfranchised. While counsel has submitted evidence of 162 people having been negatively impacted, this must be balanced against the over 60,000 who have cast their ballots and are expecting a leader to be in place tomorrow. The balance of convenience favours the larger membership’s desire and party’s desire to begin the general campaign tomorrow.

ANALYSIS

A Serious Issue to Be Tried

ANALYSIS

25First, the applicant may have raised a prima facie case with respect to their voting rights and the Party’s Constitution. The party’s constitution makes it plain that every member is entitled to one vote and that the Executive shall ensure that the right to vote of every member is respected in any rules governing the leadership election (Article 25.3). At the same time, no election is ever perfect. More people have voted in this leadership because of the electronic voting process than in any of the previous party leaderships. That is a very important point which undercuts the Applicant’s strong prima facie case. Because of my analysis of the balance of convenience, I do not have to decide if the applicant has made out a prima facie case.

Irreparable Harm

Irreparable Harm

26I am not prepared to distinguish the denial of the ability to vote in a leadership contest as being qualitatively different from the denial to vote in a provincial or federal election. The case law is clear that disenfranchisement from voting in a federal or provincial election constitutes irreparable harm. See: Council of Canadians v. Canada (Attorney General), 2015 ONSC 4601, and Frank v. Canada (Attorney General), 2014 ONCA 485.

Balance of Convenience

Balance of Convenience

27This case turns on the balance of convenience. The clear balance is in favour of the respondents.

28One more week without a leader impacts every member of the Progressive Conservative party of Ontario. The Convention would have to be rescheduled and perhaps relocated if I were to extend the voting period. The PC Leadership campaign would be further postponed. The membership cut-off times under Rules 25.4 would need to be re-opened which would rupture the process.

29The circumstances in which the respondents found themselves were unprecedented. The leadership election timelines had to be very constricted because of the June election. The leadership voting process could not have been perfect within that tight timeline compass.

30The applicant has moved for this injunction at the 11th hour – in fact, on the last day that the voting is permitted. That, too, is a factor on the balance of convenience since the respondents and/or the court is given no time to come up with a flexible solution to accommodate the applicant’s right to vote short of extending the voting period. For example, if the applicant had come to court one week ago to make this complaint, there would have been time during the voting period for the applicant to have received a voting number. Now, however, there is no way to achieve this result without prejudicing the other 60,000 members who have already voted and are expecting to have a new party leader in place as of tomorrow night.

31In my view, the balance of convenience dramatically favours the respondents in the circumstances.

DISPOSITION

DISPOSITION

32As such, the Application is dismissed.

COSTS

COSTS

33The parties may speak to me in open court if necessary regarding costs within the next fifteen days.

[33]

Archibald J.