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Elections - Ontario Cases. New Blue Ontario Fund v. Ontario (Chief Electoral Officer)
In New Blue Ontario Fund v. Ontario (Chief Electoral Officer) (Div Court, 2024) the Divisional Court considered a JR in which the provincial political party applicants sought mandamus that it be awarded "three quarterly per-vote subsidies" following the 2022 general election.
Here the court explains the political party quarterly 'allowance' scheme, recent amendments thereto and the purpose of these 'allowance' provisions:The Language of the Statute
[6] Section 32.1 of the EFA provides for the payment of a quarterly allowance to political parties in Ontario that meet a certain threshold of votes. The amount of the allowance is calculated based on a formula that multiplies the number of valid votes a party’s candidates received in the most recent provincial election by an indexed subsidy amount. For ease of reference, the subsection is reproduced below:Quarterly allowance
32.1 (1) The Chief Electoral Officer shall determine, for each quarter of a calendar year, an allowance payable to a registered party whose candidates at the most recent general election before that quarter received at least,
(a) two per cent of the number of valid votes cast; or
(b) five per cent of the number of valid votes cast in the electoral districts in which the registered party endorsed a candidate.
How allowance calculated
(2) For the 2021 calendar year and subsequent calendar years, each registered party’s allowance for a quarter is the amount calculated by multiplying $0.636 by the number of valid votes cast for the party’s candidates in the election referred to in subsection (1), whether or not the quarter ended on or after the day the Protecting Ontario Elections Act, 2021 received Royal Assent. [7] Prior to the June 2022 election, the Legislature enacted s. 32.1(2.1) of the EFA, which adjusted the schedule of allowance payments for 2022 and 2023 (the “Adjustment Payment”). Subsection 32.1(2.1) provided that the second payment for the 2022 calendar year shall be the amount calculated for the three remaining quarters of that year, plus the amount calculated for the first quarter of the 2023 calendar year. The subsection specified that no further payments would be made for the remainder of 2022 or the first quarter of 2023. The subsection is reproduced below:Adjusted payment schedule for 2022 and 2023
(2.1) The following adjustments are made respecting the payment of the allowances under subsection (1):
1. The first payment for the 2022 calendar year shall be the amount otherwise calculated for the first quarter of that year.
2. The second payment for the 2022 calendar year shall be the amount calculated for the three remaining quarters of that year, plus the amount calculated for the first quarter of the 2023 calendar year.
3. No further payment shall be made for the remainder of the 2022 calendar year or for the first quarter of the 2023 calendar year.
4. Commencing with the second quarter of the 2023 calendar year, the payments shall be made as otherwise provided under subsection (1). ....
[8] New Blue fielded candidates for the first time in the June 2020 Ontario general election. It received approximately 2.7% of votes cast.
[9] In September of 2022, counsel for New Blue sent a letter to Elections Ontario demanding a lump sum payment based on the 2022 election results of the allowance for the third and fourth quarters of 2022 and the first quarter of 2023. New Blue claimed that it was entitled to an allowance of $242,569.44 for this period.
The CEO’s Decision
[10] The CEO responded to New Blue’s request for payment with the Decision Letter on September 20, 2022. The CEO determined that New Blue was ineligible for the lump-sum payment that it demanded. The CEO stated in the Decision Letter that:1. The Legislature altered payments for 2022 and 2023 quarterly allowances through s. 32.1(2.1) of the EFA by making four quarterly allowances payable before the June 2022 election.
2. The subsection prohibited further payments for the final three quarters of 2022 and first quarter of 2023.
3. The quarterly allowances for the period covered by s. 32.1(2.1) could only be calculated based on the results of the 2018 election, which was the most recent election prior to 2022 Q2.
4. The New Blue Party was therefore not eligible to receive any payment until 2023 Q2 (i.e., the first quarter after the period covered by s. 32.1(2.1)). ....
[41] The CEO interpreted s. 32.1(2.1) as altering not only the schedule for payment of the allowances, but also as modifying the entitlement to those allowances. This interpretation is supported by the express language of s. 32.1(2.1), which refers to the following adjustments being made “respecting the payment of the allowances under subsection (1)”. It does not state that the adjustments are only with respect to the schedule for the payment of these allowances.
[42] The CEO’s interpretation of s. 32.1(2.1) is also supported by the express provision of s. 32.1(2.1) that required him to pay the allowances for the Q3 2022, Q4 2022 and Q1 2023 in a single lump sum payment before the June 2022 election. This necessarily required him to base that payment on the results of the 2018 general election, when New Blue did not exist and received no votes.
[43] Finally, the CEO’s interpretation is supported by the express language of s. 32.1(2.1)3, which required that “[n]o further payment shall be made for the remainder of the 2022 calendar year or for the first quarter of the 2023 calendar year.” Paying New Blue its allowance in Q3 of 2022 could violate that provision. Furthermore, the CEO’s interpretation is supported by the express language of s. 32.1(2.1)4, which confirms that the payments “otherwise provided under subsection (1)” resume in the second quarter of 2023.”
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The Purpose of the Statute
[47] According to the Applicants, the purpose of the per-vote subsidy scheme is to provide resources to political parties, particularly smaller parties, to enable them to communicate their messages and views to the public, a purpose that is vital to a healthy democracy.
[48] In 2016, the Legislature amended the election campaign financing laws in Ontario. Corporate donations were banned, and donation caps were put in place. The then Attorney General of Ontario, Yasir Naqvi, in introducing the reforms made it clear that the quarterly allowance was intended to offset the new funding constraints. In doing so, the Legislature recognized that mounting election campaigns required money and that the per-vote subsidy was a more democratic way to enable parties to participate in the political process.
[49] This purpose is consistent with the Court of Appeal’s views as to the purpose of an earlier federal quarterly allowance program on which the statute at issue is based. In Longley v. Canada (Attorney General), 2007 ONCA 852, 88 O.R. (3d) 408, at paras. 40-41, leave to appeal refused, [2008] S.C.C.A. No. 41, Blair J.A. recognized that a purpose of the subsidy scheme was to provide resources to political parties – “a central feature of the political life of this country” that “provide the means by which individuals may make their voices heard in a collective way” and that “[r]esources are essential to the ability of a party and its supporters to communicate their message and views to the public.”.
[50] In 2021, Ontario’s Attorney General, Doug Downey, introduced Bill 254, a bill extending and increasing the per-vote subsidy scheme. In doing so he stated that the purpose of the bill was “to protect the essential political dialogue that Ontarians expect to engage in with political parties across the spectrum” by “giv[ing] all parties a chance to find some financial balance.”[4] He further stated that the extended per-vote subsidy at an increased rate would assist new and smaller parties. As put by him, “We’re extending the per-vote subsidy so that others can be in a position to articulate their positions…other groups and other people will run, who may not be connected to a party, or otherwise, or a small party,”[5] so as to avoid a situation where “parties aren’t part of the discussion because they can’t afford to be there.”[6] This is intended to promote “good, vigorous debate and a level playing field” and be “healthy for a democracy”.[7]
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The Constituency Associations Argument
[66] While not pursued in their oral submissions, the Applicants made an argument in their factum relating to the payment of quarterly allowances payable to constituency associations. Sections 32.1(4) and (5) create a different formula for calculating allowances for constituency associations than for political parties. These subsections were not modified by the accelerated payment in subsection (2.1). The Applicants argue that the CEO’s Decision creates an “awkward incongruity” between parties receiving a lump sum payment before the 2022 election and the constituency associations continuing to receive payments each quarter.
[67] If there was any basis for assuming the Legislature’s intention was to treat parties and constituency associations in the same way this argument might have merit. However, on the face of the legislation, this was not the Legislature’s intention. It made no changes to the constituency association allowances as part of the 2021 amendments. . Working Families Coalition (Canada) Inc. v. Ontario (Attorney General)
In Working Families Coalition (Canada) Inc. v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal issued supplementary reasons, addressing new issues that the court had invited submissions on regarding third party election financing:[1] By reasons dated March 6, 2023, we allowed the appellants’ appeal, concluded that s. 37.10.1(2) of the Election Finances Act, R.S.O. 1990, c. E.7 (“EFA”), unjustifiably infringes s. 3 of the Canadian Charter of Rights and Freedoms (“Charter”), declared that provision to be of no force or effect, and ordered the declaration suspended for 12 months to allow Ontario to fashion Charter compliant legislation: Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), 2023 ONCA 139, at paras. 142-43. Section 37.10.1(2) of the EFA imposes a $600,000 spending limit on political advertising by a third party during the 12-month period preceding the issuance of a writ for a fixed-date general election, as well as a $24,000 spending limit during that timeframe for advertising in any particular electoral district.
[2] At para. 142 of our reasons, we invited counsel for the appellants and the Attorney General to make written submissions on whether any further provisions of the EFA should be declared invalid as a result of the reasoning in the judgment. We have received and reviewed submissions from the appellants and the Attorney General on this topic.
[3] In their supplementary submissions, the appellants ask this court to invalidate the following additional EFA provisions:. The definition of “political advertising” in s. 1(1);
. s. 37.0.1 (considerations for assessing whether an advertisement is “political advertising”);
. s. 37.10.1(3)-(3.1) (anti-circumvention); and
. s. 37.10.2 (interim reporting requirements). [4] We agree with the Attorney General that the appellants’ request should be rejected.
[5] The additional provisions apply to the pre-writ spending limits (set out in s. 37.10.1(2)) that we found to infringe s. 3 of the Charter, but also to the election period spending limits for third parties (set out in s. 37.10.1(1)). The election period spending limits were not the subject of these appeals and remain in force. The definition of political advertising also applies to other EFA provisions not challenged by the appellants on these appeals. This context significantly undermines the appellants’ argument that the additional provisions are inextricably linked to the constitutionally invalid pre-writ spending limits set out in s. 37.10.1(2).
[6] We are also not satisfied that our reasons for invalidating s. 37.10.1(2) of the EFA apply to the additional provisions, such that they infringe s. 3 of the Charter. It has not been shown how any of the additional provisions breach s. 3 of the Charter, or will do so upon the coming into effect of the declaration in our March 6, 2023 reasons that the pre-writ spending limits are of no force or effect. Nor has it been shown that any of the additional provisions would breach s. 3 of the Charter if new constitutionally compliant pre-writ spending limits were enacted.
[7] Accordingly, we decline to declare any of the additional provisions of the EFA invalid. . Working Families Coalition (Canada) Inc. v. Ontario (Attorney General)
In Working Families Coalition (Canada) Inc. v. Ontario (Attorney General) (Ont CA, 2023) the Court of Appeal consider a s.3 ['democratic rights'] Charter challenge to Election Finances Act amendments, here to third party election finance spending limits. In these quotes the court characterizes the purpose and legislative structure (through their sequential amendments) of third party election spending limits:[2] More specifically, these appeals concern the third party spending limits most recently added to the Election Finances Act, R.S.O. 1990, c. E.7 (“EFA”), in 2021, and whether they infringe the informational component of the right to vote (i.e., a citizen’s right to exercise their vote in an informed manner), which is protected by s. 3 of the Canadian Charter of Rights and Freedoms (“Charter”).
[3] A proper aim of third party spending limits is to advance an egalitarian model of electoral democracy. The egalitarian model recognizes that “laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person’s exercise of the freedom to spend does not hinder the communication opportunities of others”: Libman v. Quebec (Attorney General), 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, at para. 47. Or, to put it more simply, limits are necessary to ensure that the voices of the well-resourced do not drown out all others. However, where spending restrictions go too far, and third parties are prevented from providing political information to voters to an extent that undermines the right of citizens to meaningfully participate in the political process and to be effectively represented, the right to vote is infringed: Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at paras. 73-74.
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[22] The third party spending limits for political advertising were first introduced into the EFA, effective January 1, 2017, as part of electoral financing reform under Bill 2. Many features of the legislation are expressly preserved in the version of the EFA currently in force following PEDDA. The objective of Bill 2 was to promote equality in political discourse, consistent with the egalitarian model and the Supreme Court's decision in Harper (both of which are elaborated on below). Germane to the issues on appeal, the 2017 legislative enactments introduced a spending limit of $600,000 for political advertising by a third party in the 6-month period before the writs for a general election.
[23] Further amendments to the EFA were implemented under Bill 254, which received Royal Assent on April 19, 2021. One such amendment was the extension of the pre-writ period of restricted spending for third parties from 6 months to 12 months, but with no increase in the $600,000 amount that could be spent. This EFA provision was among those re-enacted by PEDDA following the decision in Working Families 1.
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(a) Pre-writ spending limits – s. 37.10.1(2) of the EFA
[25] As a result of PEDDA, the EFA imposes a $600,000 spending limit on political advertising by a third party during the 12-month period preceding the issuance of a writ for a fixed-date general election held in accordance with s. 9(2) of the Election Act, R.S.O. 1990, c. E.6. It also provides that a maximum of $24,000 may be spent in any particular electoral district. We refer to these provisions as the “challenged spending restrictions”.[3] The prior EFA provisions, adopted in 2017, imposed the same monetary limits over the 6-month pre-writ period.
(b) Definition of “political advertising” – ss. 1(1) and 37.0.1 of the EFA
[26] “Political advertising” is a defined term under s. 1(1) of the EFA. It includes advertising in any medium with the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate, but expressly excludes a number of forms of communication:“political advertising” means advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate and includes advertising that takes a position on an issue that can reasonably be regarded as closely associated with a registered party or its leader or a registered candidate and “political advertisement” has a corresponding meaning, but for greater certainty does not include,
(a) the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news,
(b) the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election,
(c) communication in any form directly by a person, group, corporation or trade union to their members, employees or shareholders, as the case may be,
(d) the transmission by an individual, on a non-commercial basis on the Internet, of his or her personal political views, or
(e) the making of telephone calls to electors only to encourage them to vote; [27] This definition exists alongside s. 37.0.1, which sets out a non-exhaustive list of factors that can be considered when determining whether an advertisement is a “political advertisement”:In determining whether an advertisement is a political advertisement, the Chief Electoral Officer shall consider, in addition to any other relevant factors,
(a) whether it is reasonable to conclude that the advertising was specifically planned to coincide with the period referred to in section 37.10.1;
(b) whether the formatting or branding of the advertisement is similar to a registered political party’s or registered candidate’s formatting or branding or election material;
(c) whether the advertising makes reference to the election, election day, voting day, or similar terms;
(d) whether the advertisement makes reference to a registered political party or registered candidate either directly or indirectly;
(e) whether there is a material increase in the normal volume of advertising conducted by the person, organization, or entity;
(f) whether the advertising has historically occurred during the relevant time of the year;
(g) whether the advertising is consistent with previous advertising conducted by the person, organization, or entity;
(h) whether the advertising is within the normal parameters of promotion of a specific program or activity; and
(i) whether the content of the advertisement is similar to the political advertising of a party, constituency association, nomination contestant, candidate or leadership contestant registered under this Act. The text of s. 37.0.1, which was re-enacted by PEDDA after being invalidated in Working Families 1, is unchanged from the 2017 EFA provisions.
(c) Anti-circumvention – s. 37.10.1(3)-(3.1) of the EFA
[28] Since 2017 and continuing through the PEDDA re-enactments, the EFA has sought to prevent third parties from circumventing spending limits. The current version of the anti-circumvention provisions, re-enacted by PEDDA, prohibits third parties from circumventing or attempting to circumvent a spending limit by doing any of the following:(a) acting in collusion with another third party so that their combined political advertising expenses exceed the applicable limit;
(b) splitting itself into two or more third parties;
(c) colluding with, including sharing information with, a registered party, registered constituency association, registered candidate, registered leadership contestant, or registered nomination contestant or any of their agents or employees for the purpose of circumventing the limit;
(d) sharing a common vendor with one or more third parties that share a common advocacy, cause or goal;
(e) sharing a common set of political contributors or donors with one or more third parties that share a common advocacy, cause or goal;
(f) sharing information with one or more third parties that share a common advocacy, cause or goal; or
(g) using funds obtained from a foreign source prior to the issue of a writ for an election [29]Additionally, contributions made by one third party to another third party for the purposes of political advertising are deemed to be part of the expenses of the contributing third party: s. 37.10.1(3.1).
(d) Interim reporting requirements – s. 37.10.2 of the EFA
[30] Since 2021, a third party has been required to file an interim report each time its aggregate political advertising spending increases by an amount of at least $1,000 and another report upon reaching the spending limit. Elections Ontario provides a standard form for the purpose of making these reports. The Chief Electoral Officer is required to publish them online.
(e) Administrative penalties and offences – ss. 45.1, 46.0.2, 47-48 of the EFA
[31] As of 2021, the Chief Electoral Officer has been authorized to make orders requiring a person or organization to pay an administrative penalty for contravening particular provisions of the EFA, including for breaches of the spending limits (s. 37.10.1) and interim reporting requirements (s. 37.10.2). The Chief Electoral Officer can issue such an order up to two years after becoming aware of the contravention. The EFA prescribes maximum amounts, criteria for determining the amount, and procedures for issuing the orders: s. 45.1.
[32] Since 2017 and continuing through the PEDDA re-enactments, third parties that contravene spending limits are liable, in addition to other applicable penalties, to a fine of no more than five times the amount by which the third party exceeded the limit: s. 46.0.2.
[33] Additionally, a corporation or trade union that knowingly contravenes a provision of the EFA is guilty of an offence and liable on conviction to a fine not exceeding $50,000. Similarly, where no other penalty is provided, a person, political party, constituency association, or third party that knowingly contravenes the EFA is guilty of an offence and liable on conviction to a fine not exceeding $5,000: ss. 47-48. . Dickson v. Essensa
In Dickson v. Essensa (Div Ct, 2022) the Divisional Court considered a successful judicial review where an applicant for a new Ontario political party was refused registration for the party by reason of having an 'unregistrable' party name.
. Vaughan Health Campus of Care v. Essensa
In Vaughan Health Campus of Care v. Essensa (Div Ct, 2021) the Divisional Court denied a judicial review application of the decision of the Ontario Chief Electoral Officer to refer complaints to investigation, based on it not being justiciable under the JRPA::[1] This is an application for judicial review of a decision of the Chief Electoral Officer of Ontario to refer certain complaints to the Attorney General as apparent contraventions under the Elections Finances Act.
[2] We are of the view that the issues raised in this application are indistinguishable at law from the decision of the Court of Appeal for Ontario in PC Ontario Fund v. Greg Essensa, Chief Electoral Officer, 2012 ONCA 453. There, the Court of Appeal wrote, at paragraphs 11 and 12:11. 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. [3] We are unanimously of the view that the decision of the Chief Electoral Officer in this case similarly does not affect the legal rights, interests, property, privileges or liberty of any person or party.
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