COURT OF APPEAL FOR ONTARIO
CITATION: PC Ontario Fund v. Essensa, 2012 ONCA 453
DATE: 20120627
DOCKET: C54654
Sharpe, Gillese and Epstein JJ.A.
BETWEEN
PC Ontario Fund and Progressive Conservative Party of Ontario
Applicants (Appellants)
and
Greg Essensa, Chief Electoral Officer
Respondent (Respondent)
W. Thomas Barlow and Z. Maladwala, for the appellants
John B. Laskin and Andrew Bernstein, for the respondent
Paul Cavalluzzo, for the intervener Working Families Coalition (Canada) Inc.
Jack B. Siegel and Melanie Francis, for the intervener Laura Miller on behalf of the Ontario Liberal Party
Heard: June 21, 2012
On appeal from the order of the Divisional Court (Wilson, Swinton and Lederer JJ.), dated April 27, 2011 with reasons reported at 2011 ONSC 2641.
By the Court:
[1] This appeal arises from an application for judicial review of the actions taken by the respondent Chief Electoral Officer of Ontario (the “CEO”) in response to the complaint of the appellant Progressive Conservative Party of Ontario (the “PCPO”) relating to alleged contraventions of the Election Finances Act, R.S.O. 1990, c. E.7 (the “EFA”) and of the CEO’s decision to register the intervener Working Families Coalition (Canada) Inc. (the “WFC”) as a third party pursuant to the EFA during the 2007 provincial election campaign.
[2] In August 2007 the PCPO made a complaint to the CEO alleging that there was strong prima facie evidence that the WFC was in effect the agent of the Ontario Liberal party (“OLP”) and that both the WFC and the OLP had committed offences under the EFA by failing to disclose contributions and campaign spending that should have been attributed to the OLP. The CEO retained outside counsel and a forensic accountant to investigate the complaint. After conducting an investigation in cooperation with the office of the CEO, counsel advised the CEO that the evidence did not warrant reporting the matter to the Attorney General of Ontario as an apparent contravention of the EFA. The CEO advised the PCPO of the results of the investigation and of his decision not to refer the matter to the Attorney General.
[3] Dissatisfied with that outcome, the appellants sought judicial review to quash the CEO’s decision, to declare that the CEO had failed to carry out his statutory duties, and to require the CEO to report apparent violations of the EFA to the Attorney General. The appellants also challenged the CEO’s decision to register WFC as a third party pursuant to the EFA.
[4] The Divisional Court dismissed the application for judicial review on the grounds:
(1) that the impugned actions of the CEO relating to the appellants’ complaint are not subject to judicial review; and
(2) that the decision to register WFC as a third party during the 2007 provincial election campaign is moot.
[5] The appellants ask us to reverse the Divisional Court's decision on these preliminary grounds and to either deal with the substantive grounds for judicial review or refer the matter back to the Divisional Court.
[6] As we see no error on the part of the Divisional Court with respect to these preliminary points, we find it unnecessary to deal with the substantive issues.
1. Judicial Review
[7] The appellants rely on s. 2(1)(d) of the EFA, a provision concerning the CEO’s powers of investigation:
2. (1) The Chief Electoral Officer, in addition to his or her other powers and duties under this Act and the Election Act, shall,
…
(d) conduct periodic investigations and examinations of the financial affairs and records of registered parties, registered constituency associations, registered candidates, registered leadership contestants and registered third parties in relation to election campaigns;
…
(g) report to the Attorney General any apparent contravention of this Act or sections 7 to 13 of the Taxpayer Protection Act, 1999;
[8] In oral argument before us, counsel also referred to ss. 2(c), (h), (j) and (j.2) giving the CEO the power to examine financial returns filed under the EFA, prescribe forms and guidelines, and to publish filed returns on the internet.
[9] The CEO is an officer of the Legislative Assembly. The CEO is responsible for the administration of the Election Act, R.S.O. 1990, c. E.6, and is required to make an annual report to the Speaker on his administration of the EFA: s. 2(4). The CEO is also required to make recommendations after each general election relating to changes in limits on election contributions, expenses, and public funding: s. 2(5).
[10] The legislative scheme established by the EFA is materially different from those established under the Canada Elections Act, S.C. 2000, c. 9, ss. 509-10 and the Municipal Elections Act, 1996, S.O. 1996, c. 32, ss 81, 81.1, which provide frameworks that give rise to specified statutory duties in relation to the receipt, investigation and disposition of specified complaints. The duty imposed by s. 2(1)(d) of the EFA to conduct “periodic investigations and examinations”, particularly when read in the context of the CEO’s manner of appointment and reporting relationship to the Speaker of the Legislative Assembly, does not create any legally enforceable right to compel the CEO to conduct an investigation into a particular or specific complaint.
[11] We agree with the Divisional Court that under the statutory scheme established by the EFA, the CEO’s decision to investigate the PCPO’s allegations, the manner in which he chose to conduct that investigation and his decision not to report the matter to the Attorney General as an apparent contravention, are not susceptible to judicial review.
[12] When he dealt with the appellants’ allegations involving the WFC, the CEO’s decision not to report the complaint to the Attorney General did not decide or determine any legal rights. The CEO’s treatment of the complaint made by the appellants may well have had significant political consequences. However, it did not amount to a decision affecting the legal rights, interests, property, privileges or liberty of any person or party. It was not, therefore, a decision amenable to review under the traditional prerogative writs and it did not amount to the exercise of a “statutory power of decision” within the meaning of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1 and 2(1). From a legal perspective, the CEO’s decision was analogous to that of a police officer refusing to lay a charge or a crown attorney declining to prosecute a case on the ground that there is no reasonable prospect of a successful prosecution. The appellants’ plea to afford the EFA a “purposive interpretation” that would make the decision susceptible to judicial review amounts to a plea to create a different statutory regime, and that we cannot do.
[13] Nor do we accept the submission made in oral argument that judicial review should issue to compel the CEO to require the OLP and the WFC to file fresh financial statements. This request was not clearly advanced before the Divisional Court and, in any event, we see no statutory basis for such an order.
2. Mootness
[14] The Divisional Court's discretionary decision to dismiss the appellants’ application for judicial review of the registration of the WFC as a third party on grounds of mootness attracts deference in this court. We see no error of law that could justify appellate intervention.
[15] The impugned decisions concerned the 2007 provincial election. The appellants submit that the same legal issue could arise in the future and that given the short time frame of elections, it will be difficult for them to bring the matter before the court. They submit that the Divisional Court erred by failing to hear the issue on the grounds that it is “evasive of review” in the future.
[16] Given the overlap in the issues raised, it might be possible to infer from the CEO’s refusal to report the appellants’ complaint to the Attorney General that the explanation he gave and the legal analysis that underpinned that decision also explained his decision to register the WFC as a third party. However, the CEO was not required to give reasons for his decision to register the WFC and he did not do so. That decision was not challenged at the time and is now five years old. Should the WFC seek registration in a future election, the CEO would have to consider the matter afresh on the basis of the facts that arise at that time.
[17] In these circumstances, it is our view that it was open to the Divisional Court to refuse to review the decision on grounds of mootness. While the Divisional Court did not explicitly advert to the “evasive of review” point, it did observe, at para. 26, that for the matter to arise again, the WFC would have to file a fresh application and “the CEO will be required to issue a decision on this fresh application in light of the criteria set out in s. 37.5 of the EFA and based on the information provided in the application.” We agree with that observation. Any decision on third party registration would be highly fact specific. We are not persuaded that the interests of judicial economy would be served by requiring either this court or the Divisional Court to review a five-year-old decision that, given its nature, is not capable of governing or controlling future decisions.
[18] We also agree with the Divisional Court that to decide this issue now would be to engage in the abstract interpretation of legislative provisions. In the light of the structure set up by the EFA and the nature of the duties imposed on the CEO, this would offend the principle described in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 362, that “[p]ronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.”
Disposition
[19] For these reasons the appeal is dismissed. The respondent CEO is entitled to costs of the appeal and application for leave to appeal fixed at $25,000 inclusive of disbursements and applicable taxes. The interveners asked for time to review the matter of costs. If costs are in issue, those affected may file brief written submissions.
“Robert J. Sharpe J.A.”
“E.E. Gillese J.A.”
“G.J. Epstein J.A.”
Released: June 27, 2012