Melek v. Conservative Party of Canada, 2021 ONSC 1959

Court File No.: CV-21-658374 Date: 2021-03-17

Ontario Superior Court of Justice

Between:

Ghada Melek Applicant

• and –

Conservative Party of Canada and Conservative Fund Canada Respondents

Before: Justice Edward Belobaba

Counsel: Asher G. Honickman for the Applicant Arthur Hamilton and Meredith Bacal for the Responding Parties

Heard: March 16, 2021 by Zoom

Urgent Application re National Council Election

1This is an urgent application that relates to the upcoming election of the Conservative Party of Canada’s National Council. The applicant says that even though she complied with the rules and satisfied all the requirements, the respondent’s returning officer refused to certify her candidacy. The election of National Council will be held during the three-day Virtual National Convention that begins tomorrow. Hence the urgency.

Background

2The applicant, Ghada Melek, emigrated as a teenager from Egypt in 1990. She has been “a proud member” of the Conservative Party since 2015. Ms. Melek was the CPC’s candidate in her home riding of Mississauga-Streetsville in the 2019 federal election. She garnered some 20,000 votes but lost to the Liberal candidate. She continues to support the CPC, in particular its grass-roots initiatives, and seeks to be elected to National Council.

3National Council is composed of 21 members, including four members from Ontario. It exercises a wide range of responsibilities such as developing and implementing rules for candidate selection, establishing electoral district associations and implementing the leadership selection process. With the exception of the CPC leader, the members are volunteers who receive no compensation for their service.

4The members of National Council are elected by the delegates from their province attending the National Convention. The applicable rules and requirements are set out in section 4.1 of the Rules and Procedures for the Election of National Council (“the Rules”). To be placed on the ballot, the candidate must be certified by the returning officer. Section 5.3 of the Rules provides that the returning officer “shall certify all eligible individuals who meet the criteria in section 4.”

5For Ontario candidates, the eligibility criteria set out in s. 4 of the Rules require that the candidate (i) reside in Ontario; (ii) is a delegate to the National Convention; (iii) has paid a $500 deposit; and has submitted (iv) 50 supporting signatures from Ontario CPC members in good standing and (v) a signed affirmation that states “ I have read, understand, and do herby affirm my personal commitment to the principles and policies of the Conservative Party of Canada and the Constitution of the Conservative Party of Canada .”

6It appears that Ms. Melek complied fully with each of the five listed requirements. She lives in Ontario, she is a duly qualified Convention “delegate” because of her previous candidacy in the federal election, she paid the $500 deposit, filed the requisite 50 supporting signatures and signed the required affirmation. Nonetheless, the returning officer refused to certify her as a candidate for the National Council election.

7The returning officer advised Ms. Melek that he was “concerned” about two of her social media posts in 2012. Both retweets showed images or comments disparaging Muslims. [1] The returning officer advised Ms. Melek that these posts “do not appear to align” with the CPC’s diversity and multiculturalism policies “to which you have affirmed your personal commitment.” He invited Ms. Melek to provide some additional explanation. Ms. Melek obliged and through her counsel forwarded a supplementary submission reiterating her commitment to equality, inclusiveness and tolerance. The returning officer was not persuaded and confirmed his refusal to certify her candidacy for National Council.

8Several more points must be made by way of background. The record shows that the retweets in question were posted in 2012 before the applicant became a member of the CPC; the posts were deleted; the applicant apologized; and former CPC leader Andrew Scheer accepted her apology and allowed her to stand as a CPC candidate in the 2019 federal election. When she did so, the applicant signed the identical affirmation of her “personal commitment to the principles and policies of the Conservative Party of Canada and the Constitution of the Conservative Party of Canada.” This signed affirmation was accepted in 2018 without controversy or question.

9The applicant adds the following in her affidavit:

In spending the majority of my life in this great country, I’ve come to adopt and embody the integral values upon which Canada was built. These are the same values that I have instilled in my children. They include hard work, respect for human rights, fairness, self-improvement and equal rights and opportunity for all, no matter their race, sex, sexual orientation, marital status, age, political or religious beliefs or other immutable characteristics. Inclusiveness, acceptance, tolerance and respect for all peoples are central to life in Canada and these are values I hold dear and strongly promote among my family, friends and colleagues.

10The applicant was not cross-examined on her sworn affidavit.

Analysis

11Much of the time at the hearing was devoted to the impugned social media posts. However, this application does not turn on these posts or on the applicant’s values and beliefs in 2012. Nor does it turn on her apology in 2018 or her values or beliefs in 2021. This application turns primarily on two points: (i) the court’s jurisdiction to intervene in a dispute involving the rules of an unincorporated political association, and (ii) the interpretation of these rules and whether they were followed in this particular case.

12I will deal with each of these points in turn.

(1) The court’s jurisdiction

13The court’s jurisdiction to intervene in a dispute involving the rules of an unincorporated private-sector association, such as the CPC, was addressed most recently by the Supreme Court of Canada in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 [2], by the Court of Appeal in Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10 [3], and by this court in Karahalios v. Conservative Party of Canada, 2020 ONSC 3145 [4].

14The upshot of these decisions as they pertain to the matter herein can be summarized as follows:

(i) Courts are generally reluctant to intervene in disputes involving an unincorporated, private association, such as a political party;

(ii) The court will only intervene if a private law right founded in contract or tort is affected. [5] As the Court of Appeal noted in Aga, supra, note 3, at para. 39:

Jurisdiction to address a voluntary association's adherence to its own procedures and, in some cases, the fairness of those procedures depends on the presence of an underlying legal right to be adjudicated, such as a property or a civil right in contract or tort. [6]

(iii) Where the unincorporated association has a written constitution and by-laws, then these instruments constitute a contractual relationship setting out the rights and obligations of the unincorporated association and its members. [7] The constitution and rules of the CPC constitute a contract with the members. [8]

(iv) Even so, the court will intervene only if the alleged breach of contract (breach of the rules) is “significant”. [9]

(v) The fact that the Rules provide that the decision of the returning officer is “final and not subject to appeal” does not preclude judicial intervention where the rules were not followed and the returning officer acted beyond his authority. [10] A contractual provision that purports to oust all access to the courts is contrary to public policy and unenforceable. [11]

15I can now apply these principles to the matter at hand. I am satisfied the CPC’s National Council election rules passed pursuant to its Constitution constitute a contract setting out the rights and obligations of the CPC and the applicant. [12] I am further satisfied that the alleged breach of the rules is sufficiently “significant” to merit judicial intervention.

16Counsel for the CPC tried to argue that standing for election to National Council is not a significant matter justifying judicial intervention — because what National Council does is not that significant. This was a somewhat surprising submission that, in my view, denigrates the work and the members of National Council and, in any event, is not supported by the record.

17The description of National Council as set out in the Constitution and Rules is that of a senior national body that exercises a wide range of responsibilities. The uncontroverted evidence of the applicant is the National Council exercises “high level” responsibilities. Indeed, the carefully scrutinized election process, the certification of candidates, the long list of powers and responsibilities and the imposition of term-limits suggest at least a seriousness of purpose and substantial responsibilities. There is simply no evidence before the court that being elected to National Council is not a significant accomplishment or that wrongfully being denied the right to stand for such an election, as alleged by the applicant, is not a significant breach of her contractual rights as a member, delegate and aspiring candidate.

18Ms. Melek’s evidence is that she has always taken pride in being a voice for the grassroots of the Party and has long been a proponent of improved Party governance and the fair and impartial application of the CPC Constitution and the rules promulgated thereunder. She therefore sees National Council as an ideal place to be a force for good governance and promote a renewed commitment to the values of the Party.

19All of the above, taken together, reinforces my finding that National Council is a significant body and the denial of the opportunity to stand for election is a significant matter. There is no evidence that suggests otherwise.

20In sum, this court has the jurisdiction to review the alleged breach of contract.

(2) The court’s interpretation of the rules

21Counsel for the applicant submits that based on ordinary principles of contractual interpretation the returning officer had no legal authority to reject Ms. Melek’s application. There is no dispute that Ms. Melek lives in Ontario, is a duly qualified delegate to the National Convention, paid the $500 deposit, provided the required 50 supporting signatures and signed the required affirmation. Because the applicant satisfied the eligibility criteria set out in s. 4, then under s. 5.3 (“shall certify”) she should have been certified as a candidate for the National Council election. Full stop.

22I agree.

23The returning officer’s rejection of her candidacy (the explicit reason was never stated) appears to be based on his personal decision given the 2012 retweets that the applicant’s “affirmation” was not truthful and should not be believed. Indeed, counsel for the CPC said as much during the hearing. But the Rules provide no such discretion. The Rules do not give the returning officer the authority to reject the candidate if he personally does not believe that the candidate is truly committed to the principles and policies of the CPC — especially, as here, where the aspiring candidate apologized for the social media posts, signed an identical affirmation and, her apology accepted, was allowed to run as a candidate in the 2019 federal election without any question or concern.

24I agree with counsel for the applicant that there is nothing in the language of s. 8.5 of the Constitution (“no person shall be considered …unless that person has signed the [affirmation]”) [13] or in s. 5.3 of the Rules (“shall certify”) that bestows upon the returning officer any discretionary authority to refuse certification in the face of the signed affirmation simply because he doubts or does not personally believe that the candidate is truly committed to the principles and policies of the CPC.

25It would have been easy to add the necessary words or phrases to provide such discretion. The CPC is a sophisticated and well-resourced party. It has drafted numerous rules over the years. It knows how to empower its officers with some level of discretion where such is desirable. Consider the following examples:

a. Under s. 4.6 of the Constitution, membership identification requirements are subject to the discretion of the returning officer; b. Under s. 7 of the Rules, the returning officer has the discretion to appoint a replacement scrutineer and also has the sole discretion to determine what information is released to the scrutineer; c. Under 7.2 of the Delegate Rules, the returning officer has the discretion to waive a requirement that applicants submit a specified form; and d. Under s. 2 of the Party’s Rules and Procedures for Candidate Nominations , the National Candidate Selection Committee has the “absolute discretion” to disallow an Applicant, Nomination Contestant or Candidate.

26If the CPC had wanted to provide the returning officer with an appropriate level of discretion to better deal with scenarios such as the one herein, it could easily have done so. But it did not. And until it does, the Rules as written must be followed.

(3) The appropriate remedy

27In my view, the appropriate remedy on the evidence herein is self-evident. Ms. Melek should be certified as a candidate in this week’s National Council election.

28The remedy for a breach of contract is to put the wronged party in the position she would have been had the contract been performed. [14] In this case, had the contract been performed as promised, the applicant would have been on the ballot for National Council. The applicant’s uncontroverted evidence is that the harm that she will otherwise sustain cannot be repaired with damages or other monetary compensation. Therefore, in my view, the applicant is entitled, in effect, to specific performance.

29As the Court of Appeal reaffirmed in Matthew Brady Self Storage Corporation v. InStorage Limited Partnership, 2014 ONCA 858 [15]:

In its essence, specific performance is a discretionary equitable remedy granted where damages cannot afford an adequate and just remedy in the circumstances. Almost 200 years ago, the principle was described by Sir John Leach, V.C., in Adderley v. Dixon (1824), 57 E.R. 239 , at p. 240 : Courts of Equity decree the specific performance of contracts, not upon any distinction between realty and personalty, but because damages at law may not, in the particular case, afford a complete remedy. [16]

30The respondents violated their own rules by refusing to certify the applicant as a National Council candidate. In my view, the only fair and appropriate remedy is to set aside the returning officer’s refusal decision of March 7, 2021 and direct that the applicant’s name be added immediately to the National Council election ballot.

31It is important to note that the applicant also advanced compelling submissions based on procedural fairness and bad faith. I did not address these additional grounds for judicial intervention because I was satisfied that the respondents’ failure to follow its own rules with the resulting breach of contract was sufficient for the disposition that follows.

Disposition

32This court declares that the applicant has satisfied the criteria to stand as a candidate for election to the respondent’s National Council pursuant to s. 4 of the Conservative Party of Canada’s Rules and Procedures for the Election of National Council (December 12, 2020) and should therefore be certified as a candidate.

33Order to go accordingly.

34The parties have agreed that each side will bear their own costs of this application.

35My thanks to counsel on both sides for the quality of their advocacy and for their assistance.

Signed: Justice Edward P. Belobaba

Notwithstanding Rule 59.05, this Judgment [Order] is effective from the date it is made, and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Judgment [Order] need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this Judgment [Order] may nonetheless submit a formal Judgment [Order] for original signing, entry and filing when the Court returns to regular operations.

Date: March 17, 2021

[1] The evidence suggests that the applicant also posted several other anti-Muslim and anti-gay comments in 2012. [2] Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26. [3] Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10. [4] Karahalios v. Conservative Party of Canada, 2020 ONSC 3145. [5] Wall, supra, note 2. Also see Bell v. Civil Air Search and Rescue Assn., 2018 MBCA 96. [6] Aga, supra, note 3, at para. 39. [7] Ibid. Also see Hellenic Congress of Quebec v. Canadian Hellenic Congress, 2020 ONSC 2224; Chaudhary v. Canadian Society of Respiratory Therapists, 2007 BCSC 467; Street v. B.C. School Sports, 2005 BCSC 958; Conacher v. Rosedale Golf Association Ltd., [2002] O.J. NO. 575 (S.C.J.); Senez v. Montreal Real Estate Board, [1980] 2 S.C.R. 555; Lee v. Showmen’s Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.). [8] Karahalios, supra, note 4. [9] Karahalios, supra, note 4. Also see Brown v. Hanley, 2018 ONSC 1112; Street v. B.C. School Sports, 2005 BCSC 958; Lee v. Showmen's Guild of Great Britain, [1952] 2 Q.B. 329 (C.A.). [10] Two examples: (i) the returning officer arbitrarily decides that 100 supporting signatures are required for a particular Ontario candidate and not just the 50 prescribed by the Rules; or (ii) the returning officer refuses to return the $500 deposit if the candidate is not certified, even though the Rules require otherwise. In both cases, the decisions were made in breach of the Rules and without authority. Where the returning officer makes a (significant) decision that is not authorized by the Rules, the court may intervene. [11] Karahalios, supra, note 4, at para 184. See also Brown J.’s concurrence in Uber Technologies Inc. v. Heller, 2020 SCC 16, at paras 105 to 112. [12] Wall, supra, note 2. See also McGee v. Beaver Valley Ski Club, [2006] O.J. No. 1691 (S.C.J.); Sahaydakivski v. YMCA of Greater Toronto, [2006] O.J. No. 1368 (S.C.J.); Conacher v. Rosedale Golf Association Ltd. [2002] O.J. No. 575 (S.C.J.); Senez v. Montreal Real Estate Board, [1980] 2 S.C.R. 555; Hofer v. Hofer, [1970] S.C.R. 958; Shergill v. Khaira, [2015] A.C. 359 (S.C.); Lee v. Showmen’s Guild of Great Britain, [1952] 1 All E.R. 1175 (C.A.). [13] Counsel for CPC suggested that the required discretion can be found in the word “considered”. However, as most dictionaries make clear, “considered” means nothing more than “pay attention to”. [14] Karahalios, supra, note 4, at para 268. [15] Matthew Brady Self Storage Corporation v. InStorage Limited Partnership, 2014 ONCA 858. [16] Ibid., at para. 29.