Rattan v. Her Majesty in Right of Canada, 2020 ONSC 8193

COURT FILE NO.: CV-20-00652338

DATE: 20201218

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jasveen Rattan

Applicant

– and –

Her Majesty the Queen in Right of Canada (Chief Electoral Officer)

Respondent

Jonathan Denis, Q.C., for the Applicant

No one appearing, for the Respondent

HEARD: December 18, 2020

ramsay j.

Background

1The applicant, Jasveen Rattan, brings this application pursuant to section 477.68(1)(b) of the Canada Elections Act, S.C. 2000, c. 9 (“the Act”) seeking an order extending the time of an earlier extension granted by the Chief Electoral Officer for her general election return with the respondent, Her Majesty in Right of Canada (Chief Electoral Officer), pursuant to section 477.59(1) of the Canada Elections Act. The application was heard in writing today.

2Counsel for the respondent, the Chief Electoral Officer of Canada, provided a letter dated December 4, 2020, indicating that the respondent did not intend to appear on the application or oppose the application for an extension.

3The applicant has provided an explanation for the delay in filing. She initially missed the deadline for filing due to the serious illness of an extended family member followed by the pandemic. After being granted an extension to file her documents, the applicant’s campaign manager attempted to upload the necessary documents on June 30, 2020 but experienced a technical error with the website preventing him from submitting the documents. The return was one day late.

4Based on the available evidence, the failure to file the return was due to inadvertence. There is no evidence that the failure to file the return was deliberate or that the applicant failed to exercise due diligence.

Statutory Provisions and Analysis

5The relevant provision dealing with an extension is contained in section 477.68 which provides that:

477.68 (1) A candidate or their official agent may apply to a judge for an order

(b) authorizing an extension referred to in subsection 477.66(1); or

(2) The application may be made

(b) under paragraph (1)(b), within 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 477.66(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 477.66, or

(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.

6Pursuant to section 2 of the Canada Elections Act, “…the judicial officer on whom is conferred specific powers, means: in relation to the Province of Ontario, a judge of the Superior Court of Justice”.

7Subsection 477.68 (4) provides that the granting of an extension is mandatory unless the judge determines that the failure to file the return on time was deliberate or the failure to exercise due diligence.

8In Singh v. Chief Electoral Officer of Canada, Kane J. commented on “due diligence” as follows:

“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.”

DISPOSITION

Disposition

9The order is granted, as asked, extending the time for the applicant to file her electoral campaign return pursuant to section 477.68 of the Canada Elections Act. Should it be necessary to refile the return filed on July 1, 2020, the applicant must do some within 7 days of the date of this order.

10These Reasons for Decision are deemed to be an Order of the court that is operative and enforceable without any need for a signed or entered, formal, typed order.

11The applicant may submit a draft order for signing, in Word, in accordance with form 59A, if a formal order is required.

Ramsay J.