COURT FILE NO.: CV-23-91834 DATE: 2023/09/15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Ashish Sachan Applicant – and – Chief Electoral Officer of Canada Respondent
Counsel: Paul D’Angelo, for the Applicant No one appearing for the Respondent
HEARD: May 11 and June 13, 2023
REASONS FOR JUDGMENT
Rees J.
I. Overview
1Mr. Ashish Sachan was the Conservative Party of Canada candidate in the electoral district of Guelph in the 44th general federal election on September 20, 2021.
2Under the Canada Elections Act, S.C. 2000, c. 9 (the Act), a candidate’s official agent must file the candidate’s electoral campaign return within four months of the election. Mr. Sachan’s official agent at the time filed a partial return with the Chief Electoral Officer and obtained an initial extension for completing the return and filing related documents. He did not meet the extended deadline.
3As a result, Mr. Sachan applies to this court under s. 477.68 of the Act for a further extension of the deadline to file his return. The Act requires him or his official agent to bring the application to the court within two weeks of the extended filing deadline. He missed the court application deadline too. This raises a preliminary question: Does a judge have the power under the Act to extend the time for bringing the application?
4If I were to conclude that I lack this power, Mr. Sachan argues that I should, under s. 477.7 of the Act, excuse him from the consequences of failing to meet the deadline for filing the completed return with the Chief Electoral Officer. If I were to refuse this relief, the consequences are significant: among other things, Mr. Sachan would be ineligible to be a candidate in future.
II. Facts
5Mr. Sachan’s election return and related documents were due on January 21, 2022. Mr. Sachan’s official agent did not file the return within the statutory deadline.
6The official agent obtained an extension from the Chief Electoral Officer under s. 477.66 of the Act. The extended deadline was March 7, 2022.
7Twelve weeks after the extended deadline, the official agent filed an unaudited return with Elections Canada on May 31, 2022.
8On July 11, 2022, Elections Canada advised the official agent that certain portions of the return were incomplete and requested certain supporting documents.
9The auditor who was retained by Mr. Sachan’s campaign had not completed the audit and did not respond to requests from the official agent for the additional information and documents.
10Mr. Sachan replaced the official agent with an agent-designate, who followed up with the auditor. The agent-designate obtained the missing information and worked with the auditor’s office to update the auditor’s report and audit. The agent-designate received the audit report on January 23, 2023.
11The agent-designate filed a new return and supporting documents with Elections Canada on January 25, 2023.
12Over the next few months, the campaign and officials from Elections Canada worked together to complete Elections Canada’s audit of Mr. Sachan’s return.
13During that time, on March 13, 2023, an Elections Canada official wrote to the campaign to advise them that the return was late, and that to comply with the Act, the campaign would need to request an extension from the court.
14The campaign provided the last documents and details requested by Elections Canada in April 2023. To comply with the Act, Mr. Sachan still requires a court-ordered extension.
III. Procedural History
15The deadline for asking the court for a further extension was March 22, 2022. [1] Despite this, Mr. Sachan only applied to the court for a further extension to file the completed return over a year later, on April 5, 2023.
16This matter first came before me on May 11, 2023. Mr. Sachan’s materials did not address that the application was brought after the deadline provided for in s. 477.68(2) of the Act. Thus, I adjourned the application to permit Mr. Sachan to file additional materials.
17In particular, I asked for submissions on two conflicting lines of cases on whether the court retains a residual discretion to entertain an application under s. 477.68(1) of the Act brought after the deadlines in s. 477.68(2) if it is satisfied that the failure to bring the application within the deadlines was adequately explained.
18I also asked that the issue be brought to the attention of counsel for the Chief Electoral Officer, since the Chief Electoral Officer may have wished to make submissions on the interpretation of the Act. By letter, counsel for the Chief Electoral Officer advised counsel for Mr. Sachan that the Chief Electoral Officer takes no position. Although I understand why the Chief Electoral Officer may take no position on the application of the Act to a specific case, it was unfortunate that the Chief Electoral Officer did not assist the court with the interpretation of the legislative scheme.
IV. Issues
19The application raises the following issues:
a. Does the court have the power under the Act to extend the deadline for making an application under s. 477.68?
b. If so, should I exercise my discretion to permit Mr. Sachan to bring this application after the statutory deadline?
c. If I were to conclude that I lack the power to extend time for bringing the application under s. 477.68, should I relieve Mr. Sachan from the consequences of his official agent having failed to file the completed return and related documents by the statutory deadline?
V. Analysis
20Before examining s. 477.68 of the Act, I will situate the provision in the statutory scheme and context.
A. Statutory scheme and context
21Since 1874, candidates in federal elections have been required to disclose how they or their agents spend campaign funds. Over the years, reforms have been driven by a desire for financial fairness among candidates and parties: Donald J. Bourgeois & Jessica Spindler, Election Law in Canada, 2d ed (Toronto: Lexis Nexis Canada, 2021). Canadian election law is consistent “with the egalitarian model of elections adopted by Parliament as an essential component of our democratic society. This model is premised on the notion that individuals should have an equal opportunity to participate in the electoral process”: Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at para. 62. The Supreme Court of Canada has observed that the “primary mechanism by which the state promotes equality in the political discourse is through the electoral financing regime”: Harper, at para. 102; see also R. v. Del Mastro, 2017 ONCA 711, 416 D.L.R. (4th) 726.
22To promote this equality, the Act limits political contributions to candidates, political parties, electoral district associations, nomination contestants, and leadership contestants. The Act also limits election expenses for candidates and registered political parties, among other expenses limits.
23Fairness is further advanced through public funding by reimbursing candidates and political parties for certain election expenses. Under the Act, candidates are entitled to be reimbursed out of public funds for election expenses, travel and living expenses, personal expenses, childcare expenses, among others: ss. 477.73 to 477.79. The reimbursement rate varies between 60 or 90 percent depending on the kind of expense.
24Division 5, under Part 18 of the Act, sets out the requirements for the financial administration of candidates.
25A candidate must appoint an official agent before engaging in certain financial transactions: s. 477.1(1). The official agent is responsible for administering the candidate’s financial transactions for their electoral campaign and for reporting on those transactions: s. 477.45. The official agent must file a campaign return on the financing and expenses for the candidate’s electoral campaign: 477.59(1)(a). The return must include several financial statements: s. 477.59(2). The official agent must file supporting documents with the return evidencing the expenses: s. 477.59(3). If an auditor is required, the official agent must also file the auditor’s report: s. 477.59(1)(b). The candidate and official agent must each file declarations that the return is complete and accurate: ss. 477.59(1)(c) and (d). The return and other documents must be filed within four months of polling day: s. 477.59(7).
26If the Chief Electoral Officer is not satisfied that the documents provided are sufficient, he or she may require the official agent to provide more information: s. 477.59(4).
27A candidate must appoint an auditor without delay if the candidate accepts contributions or incurs electoral campaign expenses of $10,000 or more, or if they receive 10 per cent or more of the valid votes cast in the electoral district in which they are running: s. 477.1(2). The auditor shall report on the electoral campaign return to the candidate’s official agent as soon as feasible after polling: s. 477.62(1). The auditor must have access to the candidate’s documents, and may require the candidate and their official agent to provide any information or explanation that, in the auditor’s opinion, may be necessary to enable the auditor to prepare the report: s. 477.62(4). The auditor’s opinion is prepared in accordance with generally accepted auditing standards: s. 477.62(1).
28A candidate’s election return is important not only to ensure that contributions and expenses are within statutory limits, but to ensure that candidates have been correctly reimbursed for certain expenses. Without full disclosure, spending limits could not be enforced effectively. Nor could there be effective accountability for the expenditure of public funds through reimbursement of candidate’s expenses. Finally, full disclosure of the size and source of contributions decreases the likelihood of undue influence over elected officials: Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report, vol 1 (Ottawa: Canada Communication Group, 1991) at p. 422 (“Lortie Report”).
29In this regard, the Court of Appeal for Ontario has held, “[b]y requiring reporting and auditing of campaign contributions and election expenses, the [Act] ensures accountability and transparency, thereby enhancing public confidence in the fairness of the electoral process”: Del Mastro, at para. 12, per Strathy C.J.O.
30Commensurate with the importance of election financing reporting, the consequences of non-compliance are significant. If the Chief Electoral Officer determines that an elected candidate has failed to provide required documentation, the elected candidate may be suspended from sitting or voting as a member of the House of Commons: s. 477.72(2). A candidate who has not satisfied the reporting requirements under s. 477.59(1) is ineligible to be a candidate in future: s. 65(i).
31Against this background, I come to the questions on the application.
B. Does the court have the power under the Act to extend the deadline for making an application under s. 477.68?
32As discussed, a candidate or their official agent may apply to a judge for an order extending time for filing a campaign return and related documents. The relevant parts of s. 477.68 of the Act provide:
Extensions, corrections or revisions — judge
477.68 (1) 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).
The applicant shall notify the Chief Electoral Officer that the application has been made.
Deadline
(2) The application may be made
(a) under paragraph (1)(a), within the specified period referred to in subsection 477.65(2) or within the two weeks after the end of that period;
(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
(iii) the end of the extended period referred to in subsection 477.66(1); or
(c) under paragraph (1)(c), within two weeks after the rejection of an application for a correction or revision made in accordance with section 477.67.
33According to this, when a candidate obtains an extension from the Chief Electoral Officer to file a campaign return, the statutory deadline for applying to a judge for another extension is “two weeks after… the end of the extended period”: s. 477.68(2)(b)(iii). Mr. Sachan missed the deadline to bring his application.
34What happens when a candidate applies to a judge after this deadline? Does a judge have the power to extend it?
35One line of authority provides that we do have the power to extend the deadline: Green Party of Canada v. Canada (Chief Electoral Officer), [2002] O.J. No. 188 (S.C.); see also D'Amours (Agent of) v. Canada (Chief Electoral Officer), 2014 NBQB 128, 420 N.B.R. (2d) 376.
36Another line of authority holds that we lack the power to do so: d’Agostino v. Elections Canada, 2015 ONSC 807; Meaney v. Canada (Chief Electoral Officer), 2021 ONSC 5740.
37In Green Party of Canada, the court considered similar provisions under the former s. 434 of the Act that applied to a political party, rather than a candidate. The court concluded that it had jurisdiction to extend the deadline for bringing the application for two reasons. First, the opening words of s. 434(2) – like s. 477.68(2) – provide that “an application may be brought” within the specified time (emphasis added): at para. 9. On the strength of this permissive language, the court concluded that “Parliament did not intend to make the application of the time periods mandatory but, rather, intended that some residual discretion could reside with the court to entertain applications outside of those time periods if it was satisfied that the failure to bring the application within the time periods was adequately explained”: at para 10. The second reason was that this interpretation followed the then prevailing approach to limitation periods generally: at para. 11.
38By contrast, the court came to the opposite conclusion in d’Agostino, which considered a similar provision relating to nomination contestants under the former s. 478.34 of the Act. The court came to this conclusion for three reasons. First, to disregard the preconditions – including the two-week limitation – for applying to the court would be contrary to the presumption that Parliament avoids superfluous or meaningless words. Second, the common law doctrine of special circumstances relied on by the court in Green Party of Canada has no application. The Ontario Court of Appeal subsequently held that the doctrine does not apply to statutory deadlines for filing appeals or applications: Joseph v. Paramount Canada’s Wonderland, 2008 ONCA 469, 90 O.R. (3d) 40, at paras. 10, 27-28. Third, a court has no power to extend a time for filing an application fixed by statute other than as prescribed by that statute: Re Fair and Toronto (City) (1930), 65 O.L.R. 176 (Ont. C.A.).
39And in Meaney, the court concluded that it could not grant an extension of time under s. 477.68(1)(b) when the applicant missed the deadline for applying to court: at para. 26.
40I agree with the reasons in d’Agostino and Meaney and conclude that the court lacks the power to extend the deadline for applying to a judge under s. 477.68(2) of the Act. (In any event, I am required to follow Meaney, the most recent authority from this court: R. v. Sullivan, 2022 SCC 19, at para. 79.)
41To the reasoning advanced in d’Agostino, I add these four considerations.
42First, it is ultimately a question of statutory interpretation. Division 5 under Part 18 of the Act provides a comprehensive code governing the financial administration of candidates. The Act provides a specific scheme and timelines for applying for extensions for filing campaign returns and related documents. No words in the Act, express or implied, grant the court a power to extend the application deadline under s. 477.68(2). The permissive “may” in the opening words of s. 477.68(2) is used rather than the mandatory “shall” because bringing an application to extend time is within the discretion of the candidate or official agent; the Act does not mandate that they do so. If they choose not to do so, consequences flow from that choice. Nothing in the grammatical or ordinary construction of s. 477.68(2) suggests that “may” is intended to confer a discretion on a court to extend the deadlines.
43Second, when Parliament intends to confer a discretion on a court to extend a statutory deadline for bringing an application or appeal, it says so expressly. For example, see Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(2) (applications for judicial review), ss. 27(2)(a) and (b) (appeals); Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(4); Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), ss. 67.1(1) and 97.52(1); Tax Court of Canada Act, R.S.C. 1985, c. T-2, s. 12(4); Cultural Property Export and Import Act, R.S.C. 1985, c. C-51, s. 33.2(1); Employment Insurance Act, S.C. 1996, c. 23, s. 103(1); Greenhouse Gas Pollution Pricing Act, S.C. 2018, c. 12, s. 186, ss. 115 and 117; Secure Air Travel Act, S.C. 2015, c. 20, s. 11, s. 16(3); Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 72(2)(c); Canada Pension Plan, R.S.C. 1985, c. C-8, s. 28(1); Excise Tax Act, R.S.C. 1985, c. E-15, s. 305; Canada Transportation Act, S.C. 1996, c. 10, s. 41(1); Competition Act, R.S.C. 1985, c. C-34, s. 34(3); Criminal Code, R.S.C. 1985, c. C-46, s. 678(2). These provisions reveal a pattern of expression absent from s. 477.68(2) of the Act.
44Third, the omission from s. 477.68(2) of a discretion to extend the statutory deadline to bring the application is not an oversight. There is a specific policy purpose served by strict deadlines. Public confidence in our elections is maintained not just by the financial reporting requirements, but by timely reporting following an election. The Royal Commission on Electoral Reform and Party Financing observed that an “important element of an effective disclosure system is timeliness in reporting”: Lortie Report, vol 1, at p. 424. This is because “[f]ull and timely disclosure requirements help remove suspicion about the financial activities of candidates and parties by opening the process to public scrutiny”: Lortie Report, vol 1, at p. 425.
45Finally, finding no power to extend the application deadline under s. 477.68(2) of the Act does not result in disproportionate hardship for a candidate. The candidate can still apply to the court for relief under s. 477.7.
46I now turn to Mr. Sachan’s application under s. 477.7.
C. Should the court relieve Mr. Sachan from the consequences of his official agent having failed to file the completed return and related documents by the statutory deadline?
47When this matter returned to me on June 13, 2023, Mr. Sachan had amended his notice of application to seek relief under s. 477.7 of the Act. He asks to be relieved of the consequence of his official agent having failed to meet the financial reporting requirements by the statutory deadline. He advised the Chief Electoral Officer that the application under s. 477.7 has been made and, as discussed, the Chief Electoral Officer takes no position.
48Section 477.7 of the Act provides:
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.
49The court in Meaney held that s. 477.7 is available to grant relief from the consequences of late filing: at para. 31.
50Under s. 477.7, a candidate is responsible for an act or omission by their official agent unless they can establish that the act or omission occurred without the candidate's knowledge or acquiescence, or that the candidate exercised all due diligence to avoid its occurrence.
51Section 477.7 reflects the importance of official agents to our electoral system. Official agents have been part of Canada’s election law since 1874. The Lortie Commission observed that official agents are the “linchpin of the regulatory framework” and are an “integral part of the legal campaign apparatus and a key element of the state’s enforcement mechanism” (citations omitted): Lortie Report, vol 2, at p. 165.
52Section 477.7 also reflects the principle that candidates are responsible for those who act as their official agents. Candidates should therefore exercise reasonable oversight of their official agent’s activities and be duly diligent. At the same time, s. 477.7 provides candidates with a mechanism to avoid liability or consequences where they can establish that they bear no fault for the act or omission of the official agent. This is a necessary safety valve given that the consequences for failing to file a campaign return can include the loss of the candidate’s democratic right to qualify as a candidate for election to the House of Commons.
53Mr. Sachan has satisfied me that he was neither aware of nor acquiesced to his official agent’s failure to file the return and supporting documents on time. The official agent’s evidence is that he “continued to assure Mr. Sachan that everything was fine with the Candidate’s return, and advised him that it was filed and being processed by Elections Canada without issue.” The evidence establishes the official agent was exclusively responsible for the late filing of the return and supporting documents. Mr. Sachan’s official agent did not intend to mislead him. Rather, the official agent was undergoing personal and family issues that caused him to be insufficiently diligent in his duties, and he misunderstood the process. The official agent had never before overseen the filing of a candidate’s return nor dealt with Election Canada.
54Once it came to light that the filing deadline had been missed, the campaign (particularly the agent-designate who took over from the official agent) took all reasonable steps to ensure the return and other required documents were completed and filed with the Chief Electoral Officer.
55Therefore, I am satisfied that Mr. Sachan should be relieved of the consequences of not having filed his electoral campaign return and related documents by the deadline.
56What order should be issued? Apart from Meaney, I am unaware of any cases interpreting s. 477.7 of the Act or providing guidance about how a court should craft an order under the provision. Nor was the point specifically argued. Given its purpose, s. 477.7 should be interpreted as providing the court with the flexibility to grant appropriate relief, tailored to the circumstances. This reading of s. 477.7 is consistent with s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that “[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”
57On the facts of this application, the most straightforward way of relieving Mr. Sachan of the consequences of having missed the filing deadline is to direct the Chief Electoral Officer to accept Mr. Sachan’s return and related documents as if they had been filed by the deadline.
VI. Disposition
58The application to extend time under s. 477.68 of the Act is dismissed. The application for relief under s. 477.7 of the Act is granted. Mr. Sachan should prepare a draft order and forward it to me through the trial coordinator for signature.
59There shall be no costs on this application.
Justice Owen Rees Released: September 15, 2023
Footnotes
1I come to this conclusion based on the operation of s. 477.68(2)(b) of the Act and s. 27(4) of the Interpretation Act, R.S.C. 1985, c. I-21. The extension granted by the Chief Electoral Officer under s. 477.66(1) was until March 7, 2022. Two weeks after that is March 22, because where anything is to be done within a time after a specified day, the time does not include that day.