In the last Ontario election, an organization called the "Working Families Coalition" launched a series of attack ads on Tim Hudak. The Tories then took them to Court. Sort of.
In essence, the argument is that the WFC is a 'front' for the Ontario Liberals, and was little more than an end-run around election financing laws.
But it's hard to imagine a process by which the Tories could directly attack that in Court. They don't have standing to prosecute elections financing violations. So the solution is to attack those who do have such standing, to try to compel them to exercise their authority.
The Tories made a complaint to the Chief Electoral Officer, who retained counsel and a forensic accountant to investigate the complaint, with the resulting conclusion that the evidence didn't warrant referring the matter to the Attorney General of Ontario for prosecution. The Tories weren't happy, and sought judicial review at the Divisional Court. ("Judicial review" means asking the Court to review a decision made pursuant to statutory authority - basically, when a government body or agent makes a decision that isn't strictly a matter of policy, the Courts can generally step in and determine whether or not the decision-making process is sufficiently fair and whether or not the ultimate decision was appropriate under the circumstances.) In addition to reviewing the decision not to investigate, they sought judicial review of the CEO's decision to register WFC as a third party under the Election Finances Act.
The Tories were unsuccessful at the Divisional Court, and appealed to the Court of Appeal. Again, they were unsuccessful, as the result of this decision released last week.
There's news coverage here and here. Two somewhat different perspectives on it, from the Star and the Sun. The Star's article has lengthier quotations, particularly from WFC's counsel Paul Cavalluzzo, and I'm going to zero in on this paraphrase: "...Cavalluzzo said the decision is good news and once again proves the organization is not linked to the governing Liberals."
Actually, no. It doesn't. At all.
You see, the decision was made, both by the Divisional Court and Court of Appeal, on what we call "preliminary" grounds. Jurisdictional issues, questions as to whether or not the Court can and should address the merits of the appeal. The Chief Electoral Officer and WFC successfully argued, at both levels, that the decision not to refer the Tories' complaint to the AGO was not open to judicial review, and that the decision to register the WFC as a third party was moot.
Not Open to Judicial Review
I can see both sides of this argument. The Court found that the statutory language empowering the CEO to investigate complaints did not create a duty to do so which could be enforced by way of judicial review. Despite its potential political consequences, it didn't affect anybody's legal rights or interests. It's akin to challenging a police officer for not laying a charge.
On the other hand, the Tories argued in favour of a 'purposive' interpretation of the EFA. This isn't particularly fleshed out in the decision, but I would guess that the argument essentially goes that the public has a significant interest in compliance efforts under the EFA. Giving the CEO unfettered discretion to prosecute complaints - or not - is incompatible with public law principles and in fact dangerous to the integrity of our democracy.
The Court is limited by the statutory language, and I understand the logic underlying its decision, but it's still hard to reconcile with the basic principle of public law that there is no such thing as complete discretion.
The WFC was registered as a third party for the election campaign, the election campaign is over, and there's nothing to be done about it now. It's moot.
This is a ground that always irks me, particularly in fights about elections. It is not unusual to see a dispute arising from a prior election dismissed on the ground of mootness, the point being that the election is over and the results of the judicial process won't impact those results - there's no real remedy to be sought.
The Court has discretion to hear matters which are moot, but frequently declines to do so.
The trouble is that, in a country with elections every few years, it's never really true to say that a dispute arising from an election is entirely moot. There's almost always a sense that the results of such a legal dispute will have to impact how the parties approach the next election.
Theoretically, you could engage such a process in respect of the next upcoming election to get a proactive result before the election. But elections are swift things, and legal proceedings are generally not. The wheels of justice turn slowly. For example, consider Elizabeth May's challenge against the CBC during last year's election campaign, arguing that she should be entitled to participate in the debate. This would have required an expedited process, and the Court declined her motion to expedite the process.
And the other option, proactively seeking your legal recourse in advance of the next election campaign, would in many contexts be premature.
In other words, let's suppose for a moment that the Tories are right that the WFC is a proxy for the Ontario Liberals - frankly, I don't honestly believe that, but accept it for the sake of argument. If it were true, then it would likely also be true that the CEO shouldn't be registering it as a third party.
If they challenge the registration after the election campaign, it's moot. If they challenge the registration before the election campaign - i.e. before they have sought registration for that election campaign - it's almost certainly going to be premature. And if they challenge the registration during the election campaign, it almost certainly will not be heard prior to the election...following which it will be moot.
The complaints raised by the Tories are fundamentally quite serious. I'm not saying that I believe them to necessarily be warranted, but they are serious enough that there should be a meaningful mechanism to address them in open court, so that their merits can be determined.
As it stands, we don't have a determination of the merits. We have nothing other than a lawyer's opinion that the matter shouldn't be referred to the AGO, and the Tories' contention otherwise. I don't put much stock in either. And, unless the Supreme Court decides otherwise, we will not get such a determination on the merits. That is unfortunate. Because whether it condemns or vindicates, it seems to me that an answer is deserved, and the unavailability of a process by which to get an answer is a weakness in our democracy.
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.