COURT FILE NO.: CV-20-0112
DATE: 2020 10 19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Harjit Kaur v. Chief Electoral Officer Canada
BEFORE: Mandhane J.
COUNSEL: A. Duggal, Counsel for the Applicant
No one appearing on behalf of the Respondent
E N D O R S E M E N T
[1] The Applicant brings an Application before this court to extend the time to file election returns with the Chief Electoral Officer as required by the Canada Elections Act, S.C. 2000, c. 9 (“the Act”).
[2] The two issues that I must consider are whether the Application is properly brought before this court and, if it is, whether it should be granted.
[3] For reasons that follow, I find that this Application is properly before this court and should be granted.
FACTS
[4] The Applicant is the official agent for the Federal Candidate of the Conservative Party of Canada for the riding of Etobicoke North, province of Ontario.
[5] The Candidate, Sarabit Kaur, was unsuccessful in her bid to become an MPP in the October 21, 2019 federal election. I understand that she intends to seek office in the next federal election, whenever it is called.
[6] Given that the last day of polling was October 21, 2019, the candidate was required to file her election returns by February 21, 2020.
[7] The Candidate could not file the returns on time and requested an extension from the Chief Electoral Officer.
[8] The extension was granted and the deadline to file the return was extended to April 23, 2020. The deadline was later extended again to June 30, 2020 due to the COVID-19 pandemic.
[9] Due to various personal matters, including childcare and eldercare responsibilities during the COVID-19 pandemic, the Candidate delegated the duty to file the election return forms to her staff, including the Applicant and her Campaign Manager, Jasneet Thind.
[10] The Campaign Manager dropped off the required documents to the accounting firm, IMPACT CPAs, in mid-June 2020.
[11] As of that date, the Candidate was under the impression that the return would be filed by the deadline of June 30, 2020.
[12] Out of an abundance of caution, the Candidate inquired with IMPACT CPAs m in mid-July 2020 and was advised that it had not received the complete documents and that the return had not been filed.
[13] Regardless of who is to blame, the end result is that the returns were not filed by the June 30, 2020 deadline.
[14] The Candidate then took the matter into her own hands and the return was eventually filed on August 24, 2020.
[15] However, the Chief Electoral Officer was not able to extend the filing deadline beyond June 30, 2020 and advised the candidate to file an application pursuant to s.477.68 of the Canada Elections Act to have a court further extend the filing deadline.
[16] The Applicant appears before me today seeking such an extension.
[17] I understand that the Applicant’s counsel considered filing this Application in Toronto, but was told by court staff that this matter would not be considered on urgent and there that there were no dates available to hear a 2-hour application until sometime in 2021.
[18] Applicant’s counsel stated that he provided a time estimate of 2-hours for this Application because, at the time of attempting to file it, he was not aware that the Chief Electoral Officer would not be opposing it.
[19] Given the possibility of an election being called in advance of 2021 and the Candidate’s desire to run in the next federal election, the Applicant decided to file this matter in Orangeville so that it could be heard sooner than 2021.
ANALYSIS
Jurisdiction
[20] During the hearing, I asked the Applicant for submissions on whether an Orangeville court has jurisdiction to grant the order sought. I noted that the Applicant is the official agent for the Federal Candidate of the Conservative Party of Canada for the riding of Etobicoke North, which is in the Toronto region.
[21] Section 2 of the Canada Elections Act defines “judge” in the Province of Ontario to be a “judge of the Superior Court of Justice.”
[22] Section 477.68(1) states:
A candidate or their official agent may apply to a judge for an order
(a) relieving the official agent from the obligation to comply with a request referred to in subsection 477.65(2);
(b) authorizing an extension referred to in subsection 477.66(1); or
(c) authorizing a correction or revision referred to in subsection 477.67(1).
[23] A plain reading of ss. 2 and 477.68(1) suggest that I can grant the relief sought by the Applicant. This interpretation is further bolstered by the fact that, for the purposes of a recount, a “judge” is further defined in the Canada Elections Act as “a judge who sits in the electoral district in where the results are validated.”
[24] Counsel further notes that Rule 13.1.01(2) of the Rules of Civil Procedure states that an applicant may commence a proceeding in any county if the applicable statute does not require the proceeding to be brought, tried or commenced in a particular county.
[25] Finally, counsel notes that Rule 1.04(1) states that the Rules shall be construed to secure the most just, most expeditious and least expensive determination of every civil proceeding on its merits.
[26] I agree with the Applicant that the Canada Elections Act gives any judge of the Ontario Superior Court of Justice the authority to grant relief under s. 477.68(1).
[27] Even if Toronto would have been the preferable region in which to file this Application, I accept that the Applicant was entirely within her rights to file this Application in Orangeville pursuant to Rule 13.1.01(2).
[28] Finally, Rule 1.04(1) supports allowing this application to proceed before this court. Foremost, I note that the Respondent does not oppose the Application and has not raised any issues regarding the jurisdiction of this court to hear it.
[29] Moreover, a timely resolution of this matter is in the interests of justice in light of the Candidate’s desire to run in any upcoming election and the possibility of such an election being called at any time. Finally, it is more expeditious for both the parties and the Court to deal with this matter based on the full record before me rather than transferring it to Toronto to proceed based on the very same record.
Extension sought
[30] Section 477.68(4) notes that the presiding 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 a failure to exercise due diligence.”
[31] Based on the record before me, I accept that the Candidate and Official Agent were duly diligent in their attempt to file to the required documents and that their failure to do so was not deliberate.
[32] I have reviewed the cases relied upon by the Applicant and agree that they are directly relevant insofar as they note that the presiding judge has jurisdiction to grant the relief sought and limited discretion to deny it [See: Green Party of Canada v. Canada (Chief Electoral Officer), 2002 CarswellOnt 186, and Daigle v. Canada (Chief Electoral Officer), 2014 NBBR 128].
[33] The Chief Electoral Officer does not oppose this application and there is no apparent prejudice to the Respondent if this application is granted.
[34] On the other hand, if the Application is not granted, the Candidate will suffer significant prejudice because, pursuant to s. 65(i) of the Canada Elections Act, she will be deemed ineligible for future federal candidacy.
RESULT
[35] For the reasons noted, I am prepared to grant the relief sought by the Applicant.
[36] Order to go as drafted by counsel and reviewed by this court.
Mandhane J.
DATE: October 19, 2020
COURT FILE NO.: CV-20-0112
DATE: 2020 10 19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Harjit Kaur v. Chief Electoral Officer Canada
BEFORE: Mandhane J.
COUNSEL: A. Duggal, Counsel for the Applicant
No one appearing on behalf of the Respondent
ENDORSEMENT
Mandhane J.
DATE: October 19, 2020