



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 CEOs
    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 CEOs 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 CEOs 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 CEOs 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 CEOs
    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 CEOs decision to investigate the PCPOs 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 CEOs decision
    not to report the complaint to the Attorney General did not decide or determine
    any legal rights. The CEOs 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 CEOs 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 CEOs 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


