Stevens v. Conservative Party of Canada, 2005 FCA 383

                                                                                                                                  Date: 20051117

                                                                                                                              Docket: A-642-04

                                                                                                                     Citation: 2005 FCA 383

CORAM :       DÉCARY J.A.

LINDEN J.A.

LÉTOURNEAU J.A.

BETWEEN:

                                        THE HONOURABLE SINCLAIR STEVENS

                                                                                                                                            Appellant

                                                                           and

                                       THE CONSERVATIVE PARTY OF CANADA

                                                                                                                                        Respondent

                                                                           and

                                              THE CHIEF ELECTORAL OFFICER

                                                                                                                                             intervenor

                                            Heard at Ottawa, Ontario, October 12, 2005

                                Judgment delivered at Ottawa, Ontario, November 17, 2005

REASONS FOR JUDGMENT BY:                                                                               DÉCARY J.A.

CONCURRED IN BY:                                                                                                   LINDEN J.A.

                                                                                                                           LÉTOURNEAU J.A.

                                                                                                                                  Date: 20051117

                                                                                                                              Docket: A-642-04

                                                                                                                     Citation: 2005 FCA 383

CORAM:        DÉCARY J.A.

LINDEN J.A.

LÉTOURNEAU J.A.

BETWEEN:

                                        THE HONOURABLE SINCLAIR STEVENS

                                                                                                                                            Appellant

                                                                           and

                                       THE CONSERVATIVE PARTY OF CANADA

                                                                                                                                        Respondent

                                                                           and

                                              THE CHIEF ELECTORAL OFFICER

                                                                                                                                          Intervener

                                                    REASONS FOR JUDGMENT

DÉCARY J.A.

[1]                Was the merger of the Progressive Conservative Party (the PC Party) and the Canadian Reform Conservative Alliance (the Alliance) into a party called the Conservative Party of Canada (the CP of Canada) duly authorized by the Chief Electoral Officer on December 7, 2003? This is the ultimate question the Court is called upon to answer.

[2]                To do so, the Court must determine whether the Chief Electoral Officer was required to verify the content and accuracy of the documents submitted to him, whether he was required to grant party members who oppose the merger application the right to express their view, and whether he had a legal obligation to wait thirty days before allowing such an application. Should the Court find that there was a violation of the requirements in form or substance, would the Court have the discretion, in the context of an application for judicial review, to refuse to grant the relief sought? Moreover, and this is the subject of the cross-appeal, does the Court have the discretion to grant costs to the Applicant whose application is refused, on the grounds that a valid question was raised?

[3]                This is the first time this Court will be asked to interpret sections 400 to 403 of the Canada Elections Act (S.C. 2000, c. 9), which came into force on September 1, 2000 (Can. Gaz. Part I, Spec. Ed. Vol. 134, No. 6).

FACTS

[4]                The relevant facts were sufficiently described in the reasons for judgment by Madame Justice Heneghan of the Federal Court (2004 FC 1628) and I will simply restate the most important ones.

[5]                The Appellant, the Honourable Sinclair Stevens, is a veteran member of the PC Party. He was a member of cabinet for the Clark and Mulroney governments between 1979 and 1986.

[6]                On October 15, 2003, the leader of the PC Party, Peter McKay, and the leader of the Alliance, Stephen Harper, signed an agreement in principle (the agreement in principle) to create "a national force that reaches out to all Canadians" that will include the rights and obligations of each of the two parties. This new political force would be called the "Conservative Party of Canada." The agreement in principle set out that the Alliance and the PC Party would treat each other as equal partners.

[7]                The agreement was submitted for review to the members of both parties. Alliance members approved the agreement of principle on December 4, 2003, and those of the PC Party, on December 6, 2003. The resolution approved by the members of the PC Party stated, in part:

Whereas on October 15, 2003 the Leader of the PC Party of Canada entered into an Agreement-in-principle on the Establishment of the Conservative Party of Canada (the "Agreement");

...

And whereas the Leader of the Progressive Conservative Party of Canada, in accordance with the provisions of the Agreement, has requested that the Agreement be placed before the Members of the Progressive Conservative Party of Canada for consideration and the Leader seeks the support and approval of the Members of the Progressive Conservative Party of Canada for the Agreement;

Be it resolved that:

The Agreement-in-principle on the Establishment of the Conservative Party of Canada be approved and the Leader of the Progressive Conservative Party of Canada and its Management Committee are instructed and authorized to take all necessary steps to implement the Agreement.

[8]                In the meantime, a group of members of the PC Party, including Mr. David Orchard, had commenced an application before the Ontario Superior Court of Justice, seeking various declaratory orders and an injunction to prevent the transfer of that party's funds to a new merged party. The application was heard December 4, 2003. The following day, December 5, 2003, it was dismissed by Justice Juriansz. This excerpt is from the reasons published as, Ahenakew v. MacKay, (2003), 68 O.R.(3^d) 277, at para. 12:

[12]          However, I do not accept this submission. The resolution before the special meeting on December 6 approves the agreement-in-principle and instructs and authorizes the Leader and the Management Committee to take all necessary steps to implement the agreement. The agreement, when read in its entirety, clearly contemplates a merger of the PC Party with the Canadian Alliance to form a new party, the Conservative Party of Canada, which "will assume all the rights, obligations, assets and liabilities of the PC Party and the Alliance". A Conservative Fund Trust is to be established to, among other things, retire the debt of either party. An Interim Joint Council is contemplated to establish riding associations, processes for the conduct of founding meetings, recognition of associations, and transfer of assets from the PC Party and Alliance riding associations to new Conservative Party riding associations, and to ensure fair and effective recruitment selection, and training of Conservative Party candidates. Article 8(e) indicates the Interim Joint Council is to be responsible for the "filings with Elections Canada (as necessary to give effect of this agreement)". Article 15 indicates that the filing with Elections Canada "with respect to the founding of the Conservative Party of Canada" is to be completed by December 31, 2003. Mr. Orchard, the only applicant to give evidence in this proceeding, indicated on his cross-examination that the agreement-in-principle made clear to him that the PC Party and the Canadian Alliance would be succeeded by the Conservative Party. If that were not apparent to the applicants, it is difficult to understand why they would request the court to make declarations that the PC Party cannot be merged with another political party except with the unanimous consent of all members. (Emphasis added).

[9]                This judgment was appealed. The appeal was dismissed June 3, 2004 (see (2004), 71 O.R.(3^d) 130 (C.A.)). I will come back to this decision by the Ontario Court of Appeal.

[10]            Also in the meantime, another group of members, including Mr. Stevens, asked, under the PC Party constitution, that an arbitration committee decide on the legality of the proposed vote. On December 3, 2003, the arbitration committee rendered its decision: in its opinion, the proposed vote did not contravene the PC Party statutes. Mr. Stevens had previously withdrawn from the group, apparently on the ground that, in his opinion, the arbitration committee lacked impartiality.

[11]            On December 7, 2003, a Sunday, Mr. MacKay and Mr. Harper, as leader of the PC Party and leader of the Alliance respectively, submitted an application to merge their parties to the Chief Electoral Officer, in accordance with section 400 of the Canada Election Act (the Act). This merger application, as set out in section 400, included an attestation from each party leader, a resolution by each party authorizing the merger and certain information required of a political party seeking to be registered. I will return to the nature of the resolution filed by the leader of the PC Party, since it is at the heart of the case.

[12]            The merger application contains three short paragraphs:

This is an application pursuant to section 400 of the Canada Elections Act from the Canadian Reform Conservative Alliance (the "Alliance") and the Progressive Conservative Party of Canada (the "PC Party") for the merger of our respective parties pursuant to the said section, with the new party to be called the Conservative Party of Canada/Parti conservateur du Canada.

Attached please find certificates attesting to the resolutions for merger adopted by each of the Alliance and PC Party.

The information required by section 366(2) of the Act is attached in appendices.

[13]            That same Sunday, December 7, 2003, the Chief Electoral Officer allowed the application and amended the political party registry accordingly, replacing the names of the merging parties, the PC Party and the Alliance, with that of the Conservative Party of Canada. The following is taken from this decision:

I reviewed the application submitted under section 400 of the Canada Elections Act dated December 7, 2003 by the registered parties - the Progressive Conservative Party of Canada and the Canadian Reform Conservative Alliance - to become a single registered party as a result of their merger under the full name of the Conservative Party of Canada/Parti conservateur du Canada and short-form name of Conservative/conservateur.

The application to merge was certified by the leaders of the merging parties, Mr. Peter MacKay and Mr. Stephen Harper.

The application was accompanied by the resolutions of the two merging parties as required by paragraph 400(2)(b) of the Act. The application contained the information required for a party to be registered (except for the information referred to in paragraph 366(2)(i) of the Act which is not required on an application under section 400).

. . .

I am satisfied that the application for merger was not made in the period referred to in subsection 400(1) of the Act.

I caused to be reviewed the information currently on file with Elections Canada, including the registry of political parties and, in the absence of any information to the contrary, was satisfied that the merging parties had discharged their obligations under the Canada Elections Act, including their obligations to report on their financial transactions and their election expenses and to maintain valid and up-to-date information concerning their registration.

I am satisfied that the merged party is eligible for registration as a political party under this Act and, pursuant to subsection 401(1) of the Canada Elections Act, am therefore required to amend the registry of political parties. As a consequence, as of this day, the names of the merging parties were replaced with the name of Conservative Party of Canada/Parti conservateur du Canada.

Accordingly, pursuant to section 402 of the Canada Elections Act, the merger of the two merging parties takes effect today with the amendment of the registry of political parties. We will post this information on Elections Canada's Web site at www.elections.ca. A notice will also be published in the Canada Gazette, as required by subsection 401(3) of the Act.

[14]            On December 8, 2003, the Chief Electoral Officer, in accordance with subsection 401(2), notified, in writing, all the leaders of the merging parties of the amendment to the registry and had the notice required under subsection 401(3) of the Act published in the Canada Gazette.

[15]            Still on December 9, Mr. Stevens contacted the office of the Chief Electoral Officer, stating he was surprised at the speed with which the Chief Electoral Officer handled the merger application, on a Sunday, no less. Counsel for Mr. Stevens was also concerned that his client and citizens sharing his opinions were not given the opportunity to make their point of view known.

[16]            Further to the numerous exchanges regarding a request made to the Chief Electoral Officer to reconsider his decision, the Chief Electoral Officer dismissed the request on December 17, 2003, but not conceding, in doing so, that he had the power to reconsider.

[17]            On December 30, 2003, Mr. Stevens sought judicial review of the Chief Electoral Officer's decision dated December 7, 2003, and, as an alternative, that of December 17, 2003.

[18]            On November 19, 2004, Justice Heneghan dismissed the majority of the arguments raised by Mr. Stevens but accepted the argument that the Chief Electoral Officer could not, according to the Act, allow a merger application before the thirty days following the filing of the application had expired. She did decide, however, in the exercise of her discretion in judicial review cases, to dismiss the application because, under the circumstances, the non-respect of the thirty-day delay did not have any consequences.

RELEVANT LEGISLATION

ANALYSIS

[19]            After reviewing the Elections Act, I find that the duty of the Chief Electoral Officer is, essentially, the mechanical application of the very detailed and meticulously drafted legislative provisions that leave almost nothing to chance and that, in reality, confer very little flexibility and discretion on him. I am not saying this in a pejorative way; it is healthy and necessary for it to be this way, because the Chief Electoral Officer is, in a sense, the guardian of democracy in Canada and this democracy could be compromised by granting the person on the front line in charge of protecting it powers that are even slightly arbitrary.

[20]            A consequence of this finding is that the Elections Act sets out the Chief Electoral Officer's powers so precisely that there is little risk he will get sidetracked, and his decisions will withstand most judicial review challenges because they are dictated by the very terms of the Act.

[21]            The general powers of the Chief Electoral Officer are stated in section 16 of the Act. His duty, as I mentioned, is to ensure that electoral operations-and underlying operations, such as party registration and contributions to registered political parties-are carried out in accordance with the Act. This duty is non-partisan; even more so, it must be seen as non-partisan and its holder is held to the most absolute political neutrality. He is appointed by resolution of the House of Commons during good behaviour and may be removed from office only for cause by the Governor General upon address of the Senate and the House of Commons (s. 13 of the Act). The Chief Electoral Officer is one of the rare people who is disentitled from voting (s. 4 of the Act).

[22]            It is in light of this context that I will now consider the arguments presented by the parties and the intervener.

                              Obligation of the Chief ElectoralOfficer to verify the content

                                        and accuracy of the documents provided to him

[23]            The Act sets out that key communications between the Chief Electoral Officer and possible stakeholders (elector, MP, candidate, registered association, party, party leader, party representative, etc.) are to occur in writing (see, among others, sections 45, 48, 53, 54, 95, 103, 194, 221, 233, 251, 382, 384, 389, 403.35, 424, 435.38, 452, 478.02 and 478.23).

[24]            The Act also implies that the information provided to the Chief Electoral Officer is true and accurate. The obligation is on those who provide information to him to ensure they are not "false or misleading" (see, among others, sections 384.1, 403.38, 427 and 431). The Act also requires, occasionally, a certified statement confirming the validity of the documents provided to the Chief Electoral Officer (see, for example, subsections 383(1) and 384(1)).

[25]            When Parliament wanted the Chief Electoral Officer to personally verify the accuracy of the information provided to him, it set this out specifically. For example, section 51 allows the Chief Electoral Officer to communicate with an elector when updating the register of electors, "to verify the . . . information relating to him or her . . . " In addition, under subsection 366(3), the Chief Electoral Officer "may ask the party's leader to provide any relevant information . . . " in order "to confirm" that one of the fundamental purposes of a party applying to be registered is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election party. Under paragraph 368(c), before allowing a party's application for registration, the Chief Electoral Officer must be "satisfied" that all the required information has been provided and "is accurate," which presumes that he has the power and the duty to lead some type of investigation.

[26]            The scheme of the Act seems obvious: as a general rule, the Chief Electoral Officer may, and must, accept information provided to him assuming that it is being provided by an authorized person and that it is accurate. It is not up to him to go beyond what is given or to question the mandate of the person giving the information and thus interfere in what can be called internal party, candidate, or elector affairs. It is therefore not surprising that the Act does not confer on the Chief Electoral Officer a specific power to investigate.

[27]            It follows that the role of the Chief Electoral Officer, when he is to make a decision on an application submitted to him, is limited, in general, to ensuring that, on the face of the documents submitted by persons duly authorized, the conditions required by the Act are met. Goudge J.A. noted in obiter in Ahenakew (supra), at para. 43:

[43]          Moreover, even if we were inclined to entertain the argument on its merits, in my view it would not succeed. I agree with the application judge that s. 40(1)(b)(ii) places on the Chief Electoral Officer, not the court, the initial duty to be satisfied that the PC Party as a merging party has provided with its application a resolution approving the proposed merger. While we need not decide it in this case, I am inclined to the view that this task is concerned with the facial validity of the resolution: on its face does the filed resolution come from the merged party and does it approve the proposed merger? This would not involve the Chief Electoral Officer in adjudicating a claim that the resolution is of no legal effect because the party did not follow its own constitutional requirements. In my view the latter, which would require evidence and argument, is a task that Parliament does not appear to have equipped the Chief Electoral Officer to perform.

[44]          However, in the circumstances of this case, I do not view this task as being for the court either. The very issue was referred by the Management Committee to the Arbitration Committee of the PC Party pursuant to the provisions of its constitution. The appellants had notice of and the opportunity to participate in the hearing held by the Arbitration Committee. They chose not to do so. The Arbitration Committee issued a thoroughly reasoned decision which concluded that there was nothing in the Party's constitution requiring unanimous consent for the resolution and that the proceedings put in place for the meeting of December 6 and for voting on the resolution met the Party's constitutional requirements. The resolution was therefore capable of constituting the approval of the proposed merger called for by the Act.

(See also, Cavilla v. Canada (Chief Electoral Officer), (1994) 76 F.T.R. 77; National Party of Canada et al v. Stephenson et al., (1996) 124 F.T.R. 108, conf. in [1998] F.C.J. No. 300 (F.C.A.); by analogy, Isnana v. Canada (Minister of Indian Affairs and Northern Development), [1999] F.C.J. No. 513 (F.C.T.D.).

[28]            This general rule applies here. The merger application, as set out in section 400 of the Act, is accompanied by an attestation by each of the party leaders. The person interacting with the Chief Electoral Officer is the party leader. The spokesperson for the party is the party leader. The Chief Electoral Officer cannot question the status of the party leader who submits an application. It must be noted that the Chief Electoral Officer is dealing with the leader of a registered party, meaning a legitimate party whose activities follow the guidelines set out by the Act and whose leader's name appears on the registry of parties (see sections 366(2)(d) and 383(3)). When Parliament wanted the Chief Electoral Officer to deal with members of the party other than its leader, it set this out specifically (see, for example, subsection 401(2) of the Act, to which I will return).

[29]            The merger application is also accompanied by "a resolution from each of the merging parties approving the proposed merger." In this case, we know that the leader of the PC Party considered the resolution attached to his application to be "a resolution for merger." As Justice Juriansz found in the Ontario Superior Court of Justice, I also feel that "the agreement, when read in its entirety, clearly contemplates a merger of the PC Party with the Canadian Alliance to form a new party, the Conservative Party of Canada, which 'will assume all the rights, obligations, assets and liabilities of the PC Party and the Alliance'" (at para. 12). The Chief Electoral Officer, who we must assume follows Canadian politics very closely, could easily be satisfied, upon reading the document, that it was what the party leader said it was, namely a resolution approving the merger.

                                        Obligation to give opponents the right to speak

[30]            In general, the Act does not impose an obligation on the Chief Electoral Officer, before making a decision, to consult the members of a party other than those set out in the Act or, in Justice Pratte's words in Hamel v.Union Populaire, [1980] 2 F.C. 599 (C.A.) at para. 14, an obligation to give objectors "a chance to explain themselves."

[31]            Not only is the Act set out so that the Chief Electoral Officer can make decisions on the faith of the information received, but it also ensures that the decisions are made, in general, solely on the faith of the information received solely from those persons authorized, or asked, to transmit the information to him, without anyone being granted the right to speak.

[32]            When Parliament intended for people to be consulted before a decision is made, it did so specifically, as in section 389, which states that the Chief Electoral Officer shall not deregister a party unless the party and its leaders have had a chance to explain themselves. The same applies in section 403.21, in cases of deregistration of electoral district associations.

[33]            However, there is no such obligation in the sections of the Act that deal with mergers of registered parties.

[34]            The Appellant claims, however, that when Parliament introduced the merger application procedure in the Act, it implicitly created a consultation obligation when it imposed the obligation in subsection 401(2) on the Chief Electoral Officer to "notify the officer of the merging parties in writing whether the registry of parties is to be amended under subsection(1)" (emphasis added).

[35]            This claim cannot be sustained.

[36]            The French text of subsection 401(2) is clear. The words, "Il notifie par écrit . . . la modification ou non du registre . . ." are in no way ambiguous. The text is not elegant but it is clear: the Chief Electoral Officer's decision on the merger application has already been made and the Chief Electoral Officer shall advise the leaders of the parties of his decision, which is either for or against the merger.

[37]            The English text is ambiguous. At first, it seems to assume that the decision is not yet made: "The Chief Electoral Officer shall notify . . . whether the registry of parties is to be amended . . ."

[38]            One of the rules in interpreting bilingual legislation is that "if there is ambiguity in one version but not the other, the two versions must be reconciled, that is, we must look for the meaning that is common to both versions . . . The common meaning is the version that is plain and not ambiguous." R. v. Daoust, [2004] 1 S.C.R. 217, at para. 28 et seq.).(See also, Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 S.C.C. 51, para. 25).

[39]            It seems to me that the two versions can be reconciled simply by acknowledging that the English text implicitly includes the words "or not" in the expression "whether", in which case the text could be read as, "whether the registry . . . is to be amended or not." It is hard to imagine that the Chief Electoral Officer would only need to advise the leaders of his decision if it is in favour of the merger. Read and understood this way, the English text, as the French text, indicates that the decision has already been made.

[40]            It must be noted that the notice required in subsection 401(2) is not of the decision itself, but rather of its registration, which, again, presupposes that the decision has been made and the subject of the notice is merely to inform the leaders of the content of the decision, which, if in favour of the merger, must be registered and takes effect only upon registration.

[41]            Moreover, the interpretation proposed by the Appellant is incompatible with the power of decision conferred on the Chief Electoral Officer by subsection 401(1): the Chief Electoral Officer, as soon as he is convinced that the application conditions of this subsection have been met, "shall amend the registry of parties by replacing the names of the merging parties with the name of the merged party . . . " (Do we need a reminder that the use of the present tense, "substitue" in French corresponds, according to the Interpretation Act, to the term "shall" in the English text?) In short, the Chief Electoral Officer decides whether to authorize the merger, and once the decision is made, he transmits it to the leaders of the party. It would be strange, to say the least, if Parliament's words, "is to be amended," were intended to grant objectors the right to be consulted after the decision had been validly made without consultations.

                                                  Legal obligation to wait thirty days

                                                 before granting a merger application

[42]            The Chief Electoral Officer, in this case, accepted the merger application on the same day it was filed. Justice Heneghan found that there was an error of law. I agree with her.

[43]            Subsection 400(1) of the Act defines a period of time during which no merger application can be filed, namely, "the period beginning 30 days before the issue of a writ for an election and ending on polling day." In practice, since elections are generally held 36 days following the issue of the writ, under section 57 of the Act, this subsection means a merger application generally cannot be presented in the 66 days preceding a vote. (I must specify that the debate before us deals with the theory of a general election; I am not to decide whether the prescribed timeframe also applies in cases of partial elections).

[44]            Moreover, under paragraph 401(1)(a), the Chief Electoral Officer cannot authorize a merger "if the application for the merger was . . . made in the period referred to in subsection 400(1)."

[45]            This method for establishing a prohibition period is troublesome, insomuch as the starting point comes 30 days prior to an event (issue of a writ) for which the time it will occur, if at all, is unknown at the time the application is filed. And since the date of the issue of the writ is a secret the Prime Minister guards very closely until the very last minute, no one can predict it-not even the Chief Electoral Officer (despite his open claim at the hearing that the only purpose of the delay of 30 days prior to an election being called was so he would not have additional concerns while preparing for an election, the date of which he would have sensed in advance).

[46]            A merger application that would have been filed 30 days prior to the issue of the writ would become ineligible ex post facto. However, the only way the Chief Electoral Officer can ensure that when he accepts a merger application it is not during the 30 days prior to the issue of a writ is to not accept any applications until the 30 days have expired. This, in my opinion, is the only possible interpretation of these texts.

[47]            The parties did not submit any extracts from any Parliamentary debates that might help us. Personally, I see a valid goal that Parliament might have been seeking by imposing such a prohibition period: to ensure that electors, on the verge and in the heat of an election campaign, are not thrown off balance by the sudden disappearance of two parties with which they were familiar and the sudden arrival of a new party. Added to this, of course, are the practical problems the party created by the merger, as well as the Chief Electoral Officer himself, would suddenly face at the last minute, (see, for example, section 42 of the Act, which sets out a special procedure for appointing revising agents, deputy returning officers, poll clerks and registration officers at the start of an election campaign when there has been a merger of registered parties). This political stability consideration is consistent with the consideration of "preserving the integrity of the electoral process," set out by the Supreme Court of Canada in Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, at para. 72.

[48]            This 30-day delay does not perhaps solve every problem, but thankfully it is not up to me to find a miracle solution. I will therefore be happy with an interpretation that is in keeping with the terms of the Act and, in my opinion, minimizes the risks of political instability in pre-election periods. On this subject, regard may be had to section 370 of the Act, under which it appears that a new party that files a registration application in the 60 days preceding the issue of a writ for election, will only be registered for the following election.

[49]            I therefore find that the only interpretation that would give a concrete meaning to the texts in question is the one that requires the Chief Electoral Officer to let 30 days expire once the merger application is received before accepting it. If this was not Parliament's intention, it is free to correct our vision with a more specific legislative text.

                                                           Exercising discretionary

                                                          power for judicial review

[50]            Justice Heneghan refused to grant the relief sought despite the fact that the Chief Electoral Officer, by not waiting 30 days before making his decision, violated the Canada Elections Act. Taking judicial notice of the fact that no writ ordering an election was issued in the 30 days following the merger application, she found, at paragraph 118 of her reasons:

In the result, the CEO's action in immediately amending the registry of parties, although contrary to my interpretation of the Act, had no material effect. In the exercise of my discretion, I decline to grant the relief sought.

[51]            Justice Heneghan, in my opinion, judiciously exercised the discretion inherent to the power for judicial review. The existence of this discretion is based both on the text of subsection 18.1(3) of the Federal Courts Act under which the "Federal Court may" quash the decision of a federal board, commission or tribunal, and on the principles associated with traditional prerogative writs. In this regard, it would be appropriate to return to this long excerpt from Justice Hugessen's reasons in Schaaf v. Minister of Employment and Immigration, [1984] 2 F.C. 334 (C.A.), at pages 342, 343 and 344, which summarize the basis of this discretion best, with the adaptations required by the new, more explicit formulation of section 18:

In my view, nothing in the words used makes them other than attributive of jurisdiction. They create the power in the Court to set aside decisions which offend in one of the stated ways but do not impose a duty to do so in every case.

This appears also, I would suggest, from the wording of section 52, which describes the dispositions which are open to the Court on a section 28 application. The opening words are: "The Court of Appeal may..." They are clearly permissive and nowhere is there a suggestion that the Court must act whenever it finds an error of law.

                This is not to say that the Court is entitled to decline to exercise the jurisdiction which is given to it by sections 28 and 52, but simply that there is nothing in the language of the statute obliging the Court to grant the remedy sought where it is inappropriate to do so. While it can no doubt be argued that the statute creates certain rights for the litigant, it does so by granting powers to the Court and the latter must remain the master of whether or not they are to be exercised in any particular case.

                Any other view would, it seems to me, lead to absurdities which could not have been in the contemplation of the Legislature. This case provides a good example: I have characterised as an error in law the Adjudicator's view that Mr. Schaaf's admission of the facts alleged against him was not evidence which he was entitled to take into account. If this had been the only error and if the Adjudicator, after hearing the testimony offered by the Case Presenting Officer, had, in compliance with sections 32 and 34 of the Regulations, given an opportunity to Mr. Schaaf and his counsel to lead evidence and make submissions, it could not seriously be argued that the decision would have to be set aside because of such error. The situation does not change, in my opinion, because other errors equally inconsequential are added to the first. Individually and cumulatively they can have had no effect upon the outcome of the inquiry. In the language of paragraph 28(1)(b), they are not errors committed "in making" the decision.

                The same result can also be arrived at by a somewhat different process of reasoning which I find equally appealing. Briefly it is that the remedy provided by section 28 of the Federal Court Act cannot be treated as if it existed in a vacuum and had sprung full-blown and newly invented from the mind of Parliament. Section 28, by its very terms, must be read in tandem with section 18, which deals with the traditional prerogative writs, including certiorari and mandamus. Much of the language of section 28 (and some would say this is its principal defect) is the language developed by the cases with regard to those writs. In the light of the majority decision of the Supreme Court of Canada in the case of [1979] 2 S.C.R. 561">Harelkin v. University of Regina, [1979] 2 S.C.R. 561, it is not open in this Court to dispute that the writs of certiorari and mandamus are discretionary remedies at least as regards questions of procedural fairness. Even in those jurisdictions where the old procedure of the prerogative writs has been wholly or partly codified (see, for instance, Ontario, Judicial Review Procedure Act, R.S.O. 1980, chapter 224; Quebec, Code of Civil Procedure, article 846), the remedy has remained discretionary: [1981] 2 S.C.R. 657=">Quinn (T.E.) Truck Lines Ltd. v. Snow, [1981] 2 S.C.R. 657; so also under section 18 of the Federal Court Act, where the remedy sought was not a prerogative writ but "its modern equivalent, the motion to quash" (see P.P.G. Industries Canada Ltd. v. A.G. of Canada, [1976] 2 S.C.R. 739">[1976] 2 S.C.R. 739, at page 749). In my view, the same considerations which have led the courts to hold these remedies to be discretionary apply with equal force to the recourse under section 28 of the Federal Court Act. A proper exercise of that discretion in the present case must lead to a refusal of the remedy sought on the ground that the error invoked is a simple procedural irregularity of no consequence.

[52]            It is not uncommon that a court, in its discretion, refuses to quash a decision made unlawfully. Although the absence of prejudice is the reason most often cited, it is not the only one; the extent of the consequences, for example, could be another reason as valid at the lack of consequences. (See Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at pages 228 and 229 ("remedies . . . are impractical"); Canadian Cable Television Assn. v. American College Sports Collective of Canada, Inc. (C.A.), [1991] 3 C.F. 626; Nooshimavans v. Canada (Minister of Citizenship and Immigration), 2001 FCT 598; Angus v. Canada (C.A.), [1990] 3 F.C. 410, p. 440); Devinat v. Canada (Immigration and Refugee Board), [2000] 2 F.C. 212 (C.A.), at paras. 71 et seq.).

                                  Reconsideration Decision

[53]            Given the conclusion at which I have arrived, it is not necessary to deal with the application for judicial review of the December 17, 2003, decision in which the Chief Electoral Officer dismissed the reconsideration request.

COSTS

[54]            By cross-appeal, the Respondent claimed the judge erred by imposing costs against it, since it was successful in its challenge of the Appellant's application for judicial review.

[55]            To justify this somewhat unusual order, the judge stated that the Appellant had "raised a valid question." I understand from this that she granted costs in favour of the Appellant against the Respondent because the Appellant was successful in its claim that Chief Electoral Officer's decision was unlawful and the reason the Respondent, in the end, succeeded, was that the Court, in its discretion, refused to grant the remedies sought.

[56]            The court "shall have full discretionary power over . . . costs and the determination of by whom they are to be paid." (Rule 400(1) of the Federal Court Rules). Perhaps contrary to other jurisdictions, the Federal Court Rules list, at Rule 400(3), a series of factors a judge may rely on in exercising this discretion. The list is not exhaustive and the Federal Court of Appeal will not intervene in a cost award except in rare instances, where the judge is clearly misdirected in law, considered non-relevant elements or did not justify a decision that is clearly contrary to the practice generally followed.

[57]            In this case, I do not believe there is reason to intervene. The Appellant clarified, in the sense he proposed, a public interest legislative provision and his application was well-founded. As Lord Justice Buckley noted in Scherer v. Counting Instruments Ltd., [1986] 2 All E.R. 529 (C.A.), at page 536:

If a party invokes the jurisdiction of the court to grant him some discretionary relief and establishes the basic grounds therefor but the relief sought is denied in the exercise of discretion . . . the opposing party may properly be ordered to pay his costs.

[58]            As a result, I would dismiss the cross-appeal and confirm the Justice's order regarding costs.

[59]            As for costs in this Court, they would not have been granted against the Chief Electoral Officer regardless of the outcome of the appeal. The Chief Electoral Officer is not a party to the proceedings and acted only as intervener when leave to do so was granted by order of the Federal Court on April 28, 2004. It is not customary to impose costs on the federal board, commission or tribunal whose decision is being challenged, unless the order allowing the intervention so specifies-which is not he case-or in exceptional circumstances-such as misconduct or abuse of procedure-which are not present in this case.

[60]            However, the Respondent must have its costs against the Appellant. The Respondent was successful in appeal and the Appellant can no longer use the ground of public interest or the ground of his success in trial court before us. He chose not to be satisfied with the judgment rendered against him and all his grounds of appeal are dismissed: he must therefore assume the risks of an unsuccessful appeal.

ORDER

[61]            I would dismiss the appeal and order the Appellant to pay the Respondent costs in this Court.

[62]            I would dismiss the cross-appeal of the Respondent with costs in favour of the Appellant.

                                                                                                                              (s) "Robert Décary"          

J.A.

I concur

"A.M. Linden" J.A.

I concur

"Gilles Létourneau" J.A.

                                                     COUR D'APPEL FÉDÉRALE

                                              AVOCATS INSCRITS AU DOSSIER

DOCKET:                                           A-642-04

STYLE OF CAUSE:                           THE HONOURABLE SINCLAIR STEVENS V. THE CONSERVATIVE PARTY OF CANADA AND THE CHIEF ELECTORAL OFFICER

PLACE OF HEARING:                     Ottawa

DATE OF HEARING :                      October 12, 2005

REASONS FOR JUDGMENT BY:                                                                           DÉCARY J.A.

CONCURRED IN BY:                                                                                                 LINDEN J.A.

                                                                                                                           LÉTOURNEAU J.A.

DATED:                                              November 17, 2005

APPEARANCES:

Mr. Peter Rosenthal

Mr. Selwyn Pieters                                                                                         FOR THE APPELLANT

Mr. Arthur Hamilton

Ms. Laurie Livingstone                                                                                FOR THE RESPONDENT

Mr. Ronald Lunau

Ms. Catherine Beaudoin                                                                               FOR THE INTERVENOR

SOLICITORS OF RECORD:

Roach, Schwartz & Associates

Toronto (Ontario)                                                                                           FOR THE APPELLANT

Cassels Brock & Blackwell LLP

Toronto (Ontario)                                                                                       FOR THE RESPONDENT

Gowling Lafleur Henderson LLP

Ottawa (Ontario)                                                                                         FOR THE INTERVENOR