Court File and Parties

Court File No.: CV-21-2202 (Milton) Date: 2021-08-25 Superior Court of Justice - Ontario

Re: John David Meaney, applicant And: Chief Electoral Officer, respondent

Before: Justice R. Chown

Counsel: John David Meaney, acting in person No one appearing for the respondent

Heard: By video conference, August 20, 2021

Endorsement

[1] John David Meaney brings this application for relief under s. 477.7 of the Canada Elections Act, S.C. 2000, c. 9 (the Act). Mr. Meaney asks the court to relieve against the consequences arising from the late filing of his electoral campaign return and supporting documentation in the 2019 election. I grant the requested application.

[2] Mr. Meaney was a candidate for the People’s Party of Canada during the 43rd general election held on October 21, 2019. His official agent was Bruno Santia.

[3] Subsection 477.59(1) of the Act requires that a candidate’s official agent must provide to the Chief Electoral Officer (CEO) an electoral campaign return, in the prescribed form, after an election. Subsection 477.59(2) prescribes the contents of the return in detail. Elections Canada has a form for the electoral campaign return called the EC 20120. The return is to include a statement of the candidate’s travel and living expenses, and personal and litigation expenses. Elections Canada has a form for this called the EC 20220.

[4] Subsection 477.59(3) of the Act sets out the required supporting documentation for the return.

[5] Under s. 477.62(1), a candidate’s auditor is required to report to the candidate’s official agent on the electoral campaign return.

[6] Under s. 477.59(7), the return and auditor’s report must be provided to the CEO within four months after polling day, being February 21, 2020 for the 2019 election.

[7] Mr. Meaney and Mr. Santia were both made aware of the deadline, both by the People’s Party of Canada (PPC HQ) and by Elections Canada.

[8] Mr. Santia submitted the EC 20220 on January 21, 2020. This was rejected, according to Mr. Meaney’s affidavit, because he used an obsolete version of the form. Mr. Meaney’s affidavit does not explain whether or when the EC 20120 was submitted.

[9] On February 14, 2020, Mr. Meaney emailed Mr. Santia the completed newer version of the EC 20220 form with a reminder it needed to be submitted with the other completed forms within the next few days. According to Mr. Meaney’s affidavit, on February 17, 2020, Mr. Santia advised Mr. Meaney everything had been submitted.

[10] The pandemic hit in March of 2020.

[11] On April 7, 2020, Mr. Meaney was made aware by an email from PPC HQ that his electoral campaign return had not been submitted. Mr. Meaney immediately forwarded the email to Mr. Santia.

[12] On April 8, 2020, Mr. Meaney forwarded a copy of the EC 20220 form directly to Elections Canada, attempting to resubmit it, but it was too late. Mr. Meaney had missed the February 21, 2020 deadline and also missed the opportunity to apply for an extension from the CEO under s. 477.66(1) of the Act, which must be requested in writing within two weeks of the deadline.

[13] By April 9, 2020, Mr. Meaney was aware that he would have to bring a court application to get a court-ordered extension of the time to file.

[14] Between April 9, 2020 and April 24, 2020, numerous emails were exchanged between Mr. Meaney and Mr. Santia regarding the late filing, what happened, and what to do about it. The emails and other communications culminated in Mr. Santia’s resignation as official agent and Mr. Meaney trying to get him to reconsider his resignation.

[15] In June of 2020, Mr. Meaney engaged accounting firm DDL & Co. to assist him. DDL seems to have found Mr. Santia uncooperative in assisting them with various details to allow them to complete the required forms. Emails seeking information were exchanged among Mr. Santia, DDL, and Mr. Meaney as late August 13, 2020.

[16] Mr. Santia died on August 19, 2020.

[17] In September of 2020, Xinyi Zhang became the treasurer of the Oakville People’s Party Association EDA (riding association), but not the official agent for Mr. Meaney. Mr. Zhang was able to provide DDL with missing documents required to complete the audit of Mr. Meaney’s campaign return.

[18] DDL’s audit was not completed until April 23, 2021 and was submitted to Elections Canada. A letter from Elections Canada confirms that all required documents related to the electoral return were received as of April 23, 2021 and that, as such, there are no outstanding deficiencies with Mr. Meaney’s filing.

[19] I am unclear on how it is that there was no auditor prior to DDL becoming involved in June of 2020. There is no evidence of any audit being completed earlier than April 23, 2021. I am also unclear on whether it was just the EC 20220 that was submitted late, or whether the EC 20120 was also late. However, Elections Canada has confirmed that there are no deficiencies with Mr. Meaney’s filings, so I am content that everything was eventually compliant. Just late.

[20] There is no documentary evidence explaining the delay between September 2020 and April 2021.

[21] This application was commenced on July 26, 2021. It was scheduled to be heard on September 1, 2021, but with the election call, that would be too late. That date falls after the deadline for submitting a nomination paper with a returning officer to run as a candidate in the current election. Mr. Meaney therefore asked the court to hear this matter on an urgent basis, and I agreed to do so.

[22] Elections Canada has provided a letter indicating that the Chief Electoral Officer does not intend to appear on this application and takes no position regarding the requested relief.

Analysis

Section 477.68

[23] Elections Canada’s letter states that Mr. Meaney’s application is brought under s. 477.7 and is also brought under paragraph 477.68(1)(b). The focus of the notice of application is s. 477.7, but for completeness I will explain why I find s. 477.68(1)(b) inapplicable.

[24] Subsection 477.66(1) of the Act allows the CEO to grant an extension of the deadline to file the electoral campaign return (among other deadlines). The CEO is required to authorize the extension, “unless he or she 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.” However, under s. 477.66(2), the request to the CEO must be made before the deadline expires or within two weeks of the expiry of the deadline. As previously indicated, Mr. Meaney missed this deadline.

[25] Section 477.68 of the Act reads as follows:

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

The applicant shall notify the Chief Electoral Officer that the application has been made.

[26] However, under s. 477.68(2), the application to a judge to extend the time to file an electoral campaign return must be made: (i) within four weeks after the four month deadline; (ii) within two weeks of the rejection of an extension by the CEO; or (iii) within two weeks of any time extension granted by the CEO. Mr. Meaney missed this time limit and therefore, as I read the Act, I cannot grant relief under s. 477.68.

[27] There are two reported decisions under s. 477.68 of the Act: Singh v. Canada (Chief Electoral Officer), 2016 ONSC 6914, and Rattan v. Her Majesty in Right of Canada, 2020 ONSC 8193. From the reasons for decision in Singh, it is clear that the application was brought within the required time. The timelines are not clear from the reasons in Rattan, but presumably the application was brought in time. Thus, Singh and Rattan do not alter my view that relief under s. 477.68 is unavailable to Mr. Meaney.

[28] I do find Singh and Rattan instructive, however, in their general approach and their interpretation of the phrase “due diligence.”

Section 477.7

[29] Section 477.7 of the Act reads as follows:

477.7 A candidate may apply to a judge for an order that relieves the candidate from any liability or consequence under this or any other Act of Parliament in relation to an act or omission of the candidate’s official agent, if the candidate establishes that

(a) it occurred without the candidate’s knowledge or acquiescence; or

(b) the candidate exercised all due diligence to avoid its occurrence.

The candidate shall notify the Chief Electoral Officer that the application has been made.

[30] Elections Canada’s letter advises that it has no applicable jurisprudence under s. 477.7 of the Act. I was also unable to find any.

[31] I have considered whether s. 477.7 is even applicable to late filings, as s. 477.68 is specifically directed at late filings. However, on its face s. 477.7 is applicable. The duty to provide the required forms under s. 477.59(2) is placed on the official agent. Thus, providing the forms late is “an act or omission of the candidate’s official agent” within the meaning of s. 477.7. Mr. Meaney’s emails show he was relying on Mr. Santia. The emails further support the conclusion that providing the forms late was an act or omission of Mr. Santia.

[32] Mr. Meaney has established to my satisfaction that he did not have knowledge that Mr. Santia did not file the return within the deadline, and he did not acquiesce. I accept his evidence that he was told by Mr. Santia on February 17, 2020 that it was filed. Subsequent emails found in the exhibits to Mr. Meaney’s affidavit are seemingly consistent with this evidence. Therefore, the criteria in s. 477.7(a) are satisfied.

[33] The “all due diligence” requirement in s. 477.7(b) is more troubling. Mr. Meaney seems to have exercised due diligence to avoid the filing being late, although he may have relied too heavily on Mr. Santia to ensure it was adequate. As indicated, it is not even clear to me that Mr. Santia submitted the right form.

[34] However, a disjunctive “or” is used in s. 477.7, meaning that if either the criteria in paragraph (a) or (b) are met, the test is satisfied. Since Mr. Meaney has met the criteria in s. 477.7(a), that is sufficient.

[35] As indicated above, Mr. Meaney’s affidavit does not explain any efforts being made between August 2020 and April 2021. But unlike s. 477.68, s. 477.7 contains no time limit to bring the application to a judge, and no suggestion that the application must be brought promptly, although delay could certainly impact the exercise of the court’s discretion. In this case, if there was a lack of all due diligence, it was not a lack of “all due diligence to avoid [the late filing],” but rather a lack of due diligence to bring this application.

[36] The circumstances relate to missing filing deadlines and then not acting with consistent haste once the problem came to light. There is no indication of any irregularities in Mr. Meaney’s electoral campaign return. Late filings should not be minimized but Mr. Meaney has a reasonable explanation for most of the time period where the filing was overdue. I also note that Mr. Santia’s experience was limited. Mr. Santia was a volunteer.

[37] As was said by Justice Kane at para. 29 of Singh:

The court's consideration whether to grant a time extension must include consideration of the fundamental importance of the election process within the Canadian democracy and the resulting need of citizens to undertake the important roles as Candidate or supporting roles of that election process including as [official agent], auditor, etc.

[38] The application is granted. Mr. Meaney is relieved of the consequence of late filing of this electoral campaign return from the previous election.

[39] If the CEO requires a formal order, Mr. Meaney should prepare a draft order, consult with Elections Canada as to the adequacy of the draft, and forward the draft to me through the Milton filing office for signature.

“Chown J.”

Released: 2021-08-25