Court File and Parties
COURT FILE NO.: CV-20-242 DATE: 2020/08/26
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Lee Kennedy, Financial Agent for the Kingston and the Islands Conservative Association, Applicant AND Stephane Perrault, Chief Electoral Officer, Respondent
BEFORE: Justice Sylvia Corthorn
COUNSEL: Lee Kennedy, by his agent, John Ryder-Burbidge, for the Applicant No one appearing for the Respondent
HEARD: In writing
ENDORSEMENT
Introduction
[1] This application is for an order extending the deadline by which the Kingston and the Islands Conservative Association (“KATI”) is required to file documents to comply with the Canada Elections Act, S.C. 2000, c. 9 (the “Act”).
[2] Under the Act, registered associations, of which KATI is one, are required to file certain documents with the Chief Electoral Officer for each fiscal period: s. 475.4(1). The documents specified in the Act, must be filed “within five months after the end of the [subject] fiscal period”: s. 475.4(5).
[3] A registered association may obtain an extension of that deadline: s. 475.91(1). The request for an extension is made in writing to the Chief Electoral Officer and “may” be made either within the aforementioned five-month period or within two weeks following the end of that five-month period: s. 475.91(2).
[4] The fiscal period for which KATI requires an extension ended on December 31, 2019. In materials filed with the court in August 2020, an extension, to August 28, 2020, is requested for the deadline by which to file the documents. In fact, this is the second extension requested for the deadline. The Chief Electoral Officer previously granted an extension to July 31, 2020 of the deadline by which KATI was required to file its documents.
[5] For the reasons that follow, the court is unable to grant the relief requested, the application is adjourned, and the application shall continue in writing unless the court orders that the application proceed to an oral hearing. I remain seized of the matter.
Procedure on an Application
[6] Under Rule 38 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, an application record must be delivered, a factum must be delivered, and an application must proceed to an oral hearing: see Leonard v. Saint-Vincent Hospital, 2018 ONSC 370, Rule 38, and r. 38.09(1). The applicant in the matter now before the court did not seek relief from compliance with those requirements. The applicant did not request leave of the court to proceed with the application in writing. Nor did the applicant request an order dispensing with the requirement to deliver either an application record or a factum.
[7] The affidavit of service filed in this matter indicates that the notice of application and supporting affidavit were both served on the respondent on August 12, 2020. Under Rule 38, the process for the delivery of documents on an application starts with service of the notice of application (r. 38.06(1)), at least ten days prior to the return of the application (r. 38.06(3)).
[8] The respondent has an opportunity to deliver a notice of appearance (r. 38.07). If the respondent delivers a notice of appearance, then the parties exchange documents including affidavits (rr. 38.07(1) and 38.09). If the respondent does not deliver a notice of appearance, then the respondent is not entitled to receive any additional documents or to receive notice of further steps taken in the proceeding (r. 38.07(2)).
[9] The affidavit of service in this matter indicates that the notice of motion and affidavit were served, as individual documents (i.e., not as part of an application record), on the respondent on August 12, 2020. The matter was put before the court, albeit in writing, prior to the expiration of the ten-day period within which the respondent had the opportunity to deliver a notice of appearance.
[10] The court file includes a letter dated August 12, 2020, from in-house counsel for Elections Canada addressed to the applicant’s agent (“the Letter”). In the Letter, in-house counsel says,
The Chief Electoral Officer of Canada confirms he has been notified of the application of Lee Kennedy, Financial Agent of the Kingston and the Islands Conservative Association made under s. 475.93(1)(b) of the Canada Elections Act, S.C. 2000, c. 9, requesting an extension of the time to file the association’s financial transactions return for 2019, as required under s. 475.4 of that Act.
[11] In addition, in-house counsel for Elections Canada says that “the Chief Electoral Officer of Canada consents to an order in the form attached extending the deadline for filing the documents to August 28, 2020.” A copy of the order to which in-house counsel refers is not included with the copy of the Letter filed with the court. As a result, the court is left to make an assumption or draw an inference as to the terms of the order to which the Chief Electoral Officer consents.
[12] The court file does not include an application record. The notice of application and supporting affidavit were filed as separate documents. The court file does not include a factum.
[13] In summary, the applicant has not complied with the requirements under Rule 38 with respect to an application.
The Statutory Provisions
[14] The deadline by which a registered association is required under the Act to file certain documents is prescribed in s. 475.4(5) of the Act. That subsection provides that the documents “shall be provided to the Chief Electoral Officer within five months of the fiscal period” (emphasis added). The use of the word “shall” identifies that it is mandatory for registered associations to file their respective documents by the deadline set.
[15] A registered association that fails to meet that deadline may obtain an extension of the deadline, but is required to do so in accordance with the procedure set out in ss. 475.91 – 475.93. The first step is for the financial agent or chief executive officer of the association to apply in writing to the Chief Electoral Officer for an extension of the five-month period set out in s. 475.4(5). The Act prescribes the period within which a written application is to be made to the Chief Electoral Officer for an extension of the filing deadline. Subsection 475.91(2) provides that such application “may be made within the period referred to in subsection 475.4(5) or within two weeks after the end of that period.”
[16] The use of the word “may” suggests that the deadline set in that subsection is not a hard deadline. I note that if the legislators had intended the ‘deadline’ for a written application to the Chief Electoral Officer to be a hard deadline, they could have used the word “shall” instead of “may”.
[17] The Act also provides for an association to make an application to the court for an extension of the filing deadline. The Act distinguishes between a written application to the Chief Electoral Officer and an application to the court for an extension of the filing deadline.
[18] An application to the court for an order granting an extension of the filing deadline is governed by s. 475.93(1). At sub-paragraph (d), that subsection sets out that the financial agent or chief executive officer of an association may apply to a judge for an order, “[a]uthorizing an extension referred to in subsection 475.91(1)”. The subsection also requires the applicant to notify the Chief Electoral Officer that an application to the court has been made.
Discussion
[19] Elections Canada granted KATI an extension to July 31, 2020 of the deadline by which to file documents. Through inadvertence and for other unintentional reasons, KATI failed to file its documents by July 31, 2020.
[20] The applicant relies on an affidavit in his name (“the Kennedy Affidavit”). Exhibit “B” to the Kennedy Affidavit is a copy of a standard-form document provided to KATI by Elections Canada (“the SFD”). The SFD is titled, “Late filing of [an] Electoral District Association’s Financial return and other documents required under the Canada Elections Act”.
[21] Mr. Kennedy relies on that document as evidence that Elections Canada now requires KATI to bring an application to the court for an order extending the filing deadline. Mr. Kennedy’s evidence is that the SFD, “sets out Elections Canada’s expectations as to the steps I am to take in this application.” The second-last paragraph on the second page of the SFD begins with the following sentence: “The application [to the court] must be prepared according to the procedural rules applicable in your province.” As noted above, the applicant has not complied with the Rules of Civil Procedure governing applications in Ontario.
[22] It appears that Elections Canada treats the deadline set in s. 475.91(2) as a hard deadline. A document available online from Elections Canada[^1] includes the following paragraph:
Under the Canada Elections Act, entities that are seeking extensions to file a return or a modified return must apply to the Chief Electoral Officer by the date that the return is due or to a court in the two weeks after that date. Although the Act does not explicitly provide for extension requests to be made after that two-week period, it is not unusual for courts to grant such extensions all the same.
[23] At the end of the above-quoted paragraph, and by way of an endnote, reference is made to the decision of this court in Green Party of Canada v. Canada, 2002 WL 33327 (Ont. S.C.J.). Reference, by that citation, is made in the SFD to the same case. A copy of the decision in that case was not provided by the applicant to the court.
[24] In Exhibit “B” to the Kennedy Affidavit, the following information is provided to an association seeking an extension after the expiration of the deadline set in s. 474.(5) of the Act:
Since your application is being filed after the expiration of [the relevant deadline], the judge may wish to rely on the decision in Green Party of Canada v. Canada (citation omitted) in order to act on your application. Although this decision deals with an application to extend the deadline for submitting a political party’s election return (sec. 434 of the Act), a number of courts across Canada have subsequently used the same reasoning to grant an extension of a candidate’s election return under section 459.
[25] Based on that passage, there may be decisions of this and other courts, in addition to the decision in Green Party, that are relevant to the extension requested by the applicant. The failure of the applicant to comply with the requirements of Rule 38 include that a factum was not filed. The court therefore does not have before it the case law relevant to the issues raised on this application.
Summary
[26] Court oversight of applications for extensions of filing deadlines is important to the various processes governed by the Act. As noted in Elections Canada documents, the requisite court process must be followed.
[27] Elections Canada consents to the relief sought on the matter before the court. That consent was likely forthcoming because of the circumstances in this case. There is no suggestion that the extension of the filing deadline is required for any sort of nefarious reasons. The consent of Elections Canada to the relief sought does not, however, relieve the applicant from complying with the Rules of Civil Procedure.
[28] On this application, the court is concerned that the matter not set a precedent which goes against (a) the requirements of the Act, and (b) the guidance and direction provided by Elections Canada to registered associations and others with respect to the process for obtaining an extension of a filing deadline prescribed by the Act.
[29] The application is therefore adjourned. The application shall continue in writing unless the court orders that the application proceed to an oral hearing. I remain seized of the matter.
[30] The applicant shall deliver additional affidavits, if any, upon which it intends to rely in support of the relief sought, an application record (bookmarked), and a factum. Cases cited in the factum shall be hyperlinked to copies of the cases electronically available. In the event cases cited are not electronically available, copies of the cases may be filed with the court in searchable pdf format.
Madam Justice Sylvia Corthorn
Date: August 26, 2020
COURT FILE NO.: CV-20-242 DATE: 2020/08/26
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Lee Kennedy, Financial Agent for the Kingston and the Islands Conservative Association, Applicant AND Stephane Perrault, Chief Electoral Officer, Respondent
BEFORE: Justice Sylvia Corthorn
COUNSEL: Lee Kennedy, by his agent, John Ryder-Burbidge, for the Applicant No one appearing for the Respondent
HEARD: In writing
ENDORSEMENT
Corthorn J.
Released: August 26, 2020
[^1]: The document to which reference is made was not provided by the applicant but, rather, was found by the court on its initiative. It is a lengthy document, including over 100 endnotes, and is titled, “Responding to Changing Needs – Recommendations from the Chief Electoral Officer of Canada Following the 40th General Election”.