Date: 20091210
Docket: T-1726-09
Citation: 2009 FC 1264
Ottawa, Ontario, December 10, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
WILLIAM
SLOAN
Applicant
and
COMMISSIONER OF CANADA ELECTIONS
Respondent
REASONS FOR ORDER AND ORDER
[1]
Apparently
Voltaire never said:
Je ne suis pas d’accord avec ce que vous
dites, mais je me battrai pour que vous ayez le droit de le dire.
It may be that the phrase was invented by
his English biographer, Evelyn Beatrice Hall, who wrote:
I disapprove of what you say, but I will
defend to the death your right to say it.
[2]
Whatever
its provenance, the phrase dramatically brings home a fundamental value of our
Canadian way of life: freedom of expression, a freedom which long existed
before it was enshrined in our Charter of Rights and Freedoms in 1982.
It is this value which is at stake in this judicial review.
[3]
Mr.
Sloan ran in the 2008 federal election as a candidate of the Communist Party of
Canada in the riding of Westmount--Ville-Marie. During
the course of the campaign several of his posters were removed by City of Westmount employees.
[4]
It
would appear that the posters identified their source as required by law.
“Authorized by the registered agent of the Communist Party of Canada” for the
English posters, and “Autorisé par l’agent enregistré du Parti communiste du Canada” in the
French versions. Mr. Sloan speculates that the following slogans on the posters
may have annoyed somebody. “END CANADIAN SUPPORT OF APARTHEID ISRAEL” or “CESSEZ
L’APPUI CANADIEN À L’APARTHEID ISRAELIEN” or “CANADA HORS
D’AFGHANISTAN”.
[5]
Mr.
Sloan complained to the Commissioner of Canada Elections. The result, as published
in the Canada Gazette, was that the Commissioner entered into what the Canada
Elections Act calls a compliance agreement with the City of Westmount in which the
City acknowledged that the removal was without reasonable notice to, and
without the consent of, the registered agent of the Communist Party. The City committed
itself to ensure future compliance with the Act. In deciding not to
prosecute, an option which was open to him, the Commissioner took into
consideration the timely admission of the facts, the cooperation of the City
and “the good faith of city officials, whose actions were based on public
interest considerations.”
[6]
Mr.
Sloan has filed an application for judicial review of that decision. He alleges
that freedom of speech has been chilled, that the Commissioner both exceeded
and refused to exercise jurisdiction and that various of his Charter rights
have been infringed. The remedy he seeks is a declaration from this Court to
that effect.
[7]
What
is currently before the Court is a motion by the Commissioner to strike the
entire Notice of Application without leave to amend. In the alternative, should
the Notice of Application not be struck, he seeks an order substituting the
City of Westmount as
respondent and granting him leave to reappear as an intervener.
[8]
The
grounds for the motion to strike are that Mr. Sloan has no direct interest in
the compliance agreement entered into by the Commissioner with the City and
that therefore he has no standing to apply for judicial review. Furthermore,
the decision is not reviewable by this Court because the Commissioner owed no
duty to Mr. Sloan and because his decision was part of his enforcement and
prosecutorial rights and duties under a regulatory statute.
ISSUES
[9]
There
are four intertwined issues in this motion to dismiss.
i.
Does
Mr. Sloan have standing under the Federal Courts Act to make this
application for judicial review?
ii.
Does
he have a reasonable cause of action?
iii.
Should
these questions be answered now, or left to the judge who hears the application
on the merits?
iv.
If
the application is not to be dismissed at this stage, who should be party
thereto as a respondent or intervener?
DECISION
[10]
In
my view, based on a very skeletal record, it is not plain and obvious that Mr.
Sloan has no standing either personally or as a matter of public interest, or
that his application is bereft of success. These matters are best left to the
judge who hears the application on the merits.
[11]
With
respect to the second part of the Commissioner’s motion, the Commissioner
should be struck as a respondent and replaced by both the Attorney General of
Canada and the City of Westmount. The Commissioner is
given leave to intervene.
DISCUSSION
[12]
The
Commissioner is an independent officer appointed under section 509 of the Canada
Elections Act by the Chief Electoral Officer. His duty is to ensure that
the Act is complied with and enforced. Complaints or allegations of wrongdoing,
such as that made by Mr. Sloan, are referred to him. If he believes on
reasonable grounds that an offence has been committed, he may refer the matter
to the Director of Public Prosecutions. During an election period, he may also apply
to a Court for an injunction ordering an infringer to comply with the law.
[13]
Section
517 deals with another option open to him, Compliance Agreements. These
agreements are aimed at ensuring compliance with the Act. The Commissioner must
believe on reasonable grounds that a person has committed, is about to commit
or is likely to commit an act or omission which would constitute an offence
under the Canada Elections Act. If the agreement is honoured, that is
the end of the matter. The agreement may include a statement by the contracting
party, in this case the City of Westmount, in which it admits
responsibility for the act or omission that constitutes the offence.
[14]
The
record, such as it currently is, does not indicate what caused the City of Westmount to remove
the posters, or even whether it was requested to do so by the Commissioner. Did
someone who was annoyed with the slogans on the poster complain to the City? Inquiries
within a court setting may well be justified. In his affidavit opposing the
motion to strike, Mr. Sloan refers to the following passage said to be taken
from the website of Marc Garneau, the successful candidate:
Marc Garneau joints the Canadian Jewish
Congress (CJC) in denouncing the possibly illegal campaign activities of the
Communist Party of Canada (CPC).
Over the course of the current campaign,
the CPC has posted signs in Westmount—Ville-Marie with the slogans “Out of
Afghanistan” and “End Canadian Support to Apartheid in Israel”, among others. “This is a violation of
current electoral laws and an affront to the democratic process,” declared Marc
Garneau. “I support the CJC’s complaints to Elections Canada and request that
the Communist Party of Canada take down those signs immediately!”
The Canadian Jewish Congress argues in
its complaint that the CPC’s signs violate article 407 of the Canada Elections
Act in that they do not “directly promote or oppose a registered party, its
leader or a candidate during an election period.” They are therefore not a
legitimate election expense. Moreover, given that the goal of an election is to
espouse a particular candidate or party, these signs go against the very spirit
of our democracy. The Liberal Party of Canada candidate stands behind the CJC
and calls upon all other candidates in this campaign to join him in condemning
the CPC’s disgraceful propaganda.
Marc Garneau and the Liberal Party of
Canada are long time friends of Israel
and Canada’s Jewish community. ”It is
particularly shocking to me that the CPC would so abuse the electoral system
with inflammatory statements,” stated Mr. Garneau. “We need dialogue and
discussion, not senseless rhetoric,” he concluded.
[15]
Contestation
of decisions of federal boards, commissions or other tribunals is by way of
application in accordance with rule 300 and following of the Federal Courts
Rules. They are intended to be summary in nature. Thus the courts are
somewhat loathe to entertain interlocutory motions which would bring the
application to an end before a hearing on the merits. Rule 221, which deals
with striking of pleadings, is not directly applicable to applications (David
Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588
(C.A.)). Nevertheless, as indicated in David Bull and other cases such
as Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, superior
courts have the inherent power to control their own process and to dismiss out
of hand litigation they consider frivolous or vexatious or which discloses no
reasonable cause of action. A pleading, or an application for judicial review,
should not to be struck unless it is “plain and obvious” that, with the facts
assumed to be true, the legal propositions therein are doomed to failure. As
Madam Justice Wilson stated in Operation Dismantle at 486-7:
The law then would appear to be clear.
The facts pleaded are to be taken as proved. When so taken, the question is do
they disclose a reasonable cause of action, i.e. a cause of action “with
some change of success” (Drummond-Jackson v. British Medical Association,
[1970] 1 All. E.R. 1094) or, as Le Dain J. put it in Dowson v. Government of
Canada (1981), 37 N.R. 127 (F.C.A.), at p.
138, is it “plain and obvious that the action cannot succeed”.
See also Hunt v. Carey Canada Inc.,
[1990] 2 S.C.R. 959).
[16]
It
is not for the Court at this stage to weigh an applicant’s chance of success on
the balance of probabilities. If there is a chance Mr. Sloan may succeed, he
should not be “driven from the judgment seat” at the outset.
[17]
I
am by no means satisfied that Mr. Sloan has no standing personally, or as a
matter of public interest. There are three requirements for public interest
standing: a) a serious issue to be tried; b) a direct genuine interest in the
matter; and c) there is no other reasonable and effective matter to bring the
issue to court (Canada Council of Churches v. Canada (Minister of Employment
and Immigration), [1992] 1 S.C.R. 236 at 253).
[18]
It
was Mr. Sloan who made the complaint, it was his posters which were torn down,
and yet according to the Commissioner there is no manner in which the issue may
be brought to Court. As noted by Mr. Justice Pelletier in Moresby Explorers
Ltd. v. Canada (Attorney General), 2006 FCA 144, 350 N.R. 101 at para. 17:
Standing is a device used by the
courts to discourage litigation by officious inter-meddlers. It is not intended
to be a pre-emptive determination that a litigant has no valid cause of action.
There is a distinction to be drawn between one’s entitlement to a remedy and
one’s right to raise a justiciable issue.
[19]
The
Commission relies upon the recent decision of the Federal Court of Appeal in Irving
Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, 389 N.R. 72.
Indeed that case proves the point. It was the judge on the merits of the
application who held that Irving had no standing (Irving Shipbuilding Inc.
v. Canada (Attorney
General), 2008
FC 1102, 336 F.T.R. 208). The matter was not decided on a preliminary motion.
[20]
In
any event, it is more appropriate for this matter to be left to the Applications
Judge on the merits (Canadian Generic Pharmaceutical Association v. Canada (Governor in
Council),
2007 FC 154, aff’d 2007 FCA 375, 371 N.R. 46). As to the merits, perhaps a full
record and full argument will shed judicial light on this matter. The
Commissioner took into account “the good faith of city officials, whose actions
were based on public interest considerations.” What were those public interest
considerations? Was it reasonable to take those considerations, whatever they
were, into account? It would be premature to dismiss Mr. Sloan’s application
when the Court knows so little of the facts.
[21]
Turning
then to the issue as to who should be parties, the Commissioner submits that he
should not be a party respondent. It has been well-established that the
tribunal whose decision is under review should not itself take an adversarial
position. Its defence should be taken up by someone else, usually the Attorney
General under Rule 303. Mr. Sloan concedes that the Commissioner was named in
error as a respondent. He submits that the proper respondent should be the
Attorney General. I agree.
[22]
The
Commissioner suggests that the City of Westmount should be
named as a party respondent. Mr. Sloan objects on the grounds that the City is
not a federal board, commission or other tribunal. That, however, is not the
point. If he succeeds in his judicial review, the City may well be adversely
affected. It is appropriate that it be added as a party respondent (Friends
of the Oldman River Society v. Canada (Minister of Environment), [1993] 2
F.C. 651 (C.A.)). Although the City appears to have been copied in on the
Commissioner’s material, there is nothing in the record clearly stating that it
consents to the Commissioner’s motion. Consequently the order is ex parte
as against it.
[23]
Finally,
the Commission seeks leave to be reinserted in the record as an intervener. In
its discretion the Court often permits the tribunal whose decision is under
review to intervene, such intervention being limited to such matters as its jurisdiction
and process. I shall so order. I wish, however, to have further representations
on the terms of the intervention before issuing appropriate directions. For
instance, the tribunal is not normally given an independent right of appeal,
and is usually not entitled to costs.
ORDER
FOR
REASONS GIVEN;
THIS COURT
ORDERS that:
1.
The
motion of the Commissioner of Canada Elections to strike the notice of
application for judicial review is dismissed, without prejudice to the point
being reargued at the hearing on the merits.
2.
The
Attorney General of Canada and the City of Westmount are added as
party respondents.
3.
Mr.
Sloan shall serve copy of this order, his application for judicial review, the
Commissioner’s motion record (without copies of the attached jurisprudence),
his affidavit and memorandum in reply upon the City.
4.
The
Commissioner of Canada Elections is struck as a respondent but given leave to
intervene.
5.
He
shall seek directions, in accordance with rule 109, within 10 days hereof.
6.
Production
of the tribunal record, and all other matters are stayed pending the issuance
of directions.
7.
The
style of cause is amended to read as follows:
WILLIAM SLOAN
Applicant
and
ATTORNEY GENERAL OF CANADA
AND THE CITY OF WESTMOUNT
Respondents
and
COMMISSIONER
OF CANADA ELECTIONS
Intervener
8.
Costs
in the cause.
“Sean Harrington”
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