Facts:
The New Blue Party of Ontario, a registered political party founded in Ontario in 2020 sought payment from Elections Ontario based on the June 2022 election results. The Chief Electoral Officer of Ontario (the “CEO”) determined that New Blue was ineligible for the payment it demanded.
New Blue sought the payments under the scheme established by s. 32.1 of the Election Finances Act, 1990 (the “EFA”). Before the June 2022 Election, the Legislature enacted a new subsection, adjusting the allowance payments for 2022 and 2023 to off-set the effects of COVID-19 and help parties conduct the 2022 election. Section 32.1(2.1) specified that the second payment of the 2022 calendar year would be the amount calculated for the three remaining quarters of that year and for the first quarter of the 2023 calendar year, and that no further payments would be made for the remainder of 2022 or the first quarter of 2023. The CEO relied on this new subsection to reject New Blue’s demand.
The CEO provided written reasons for its decision, stating that 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 (the most recent election), and that New Blue was therefore ineligible to receive payment until the second quarter of 2023.
New Blue commenced an application for judicial review, initially seeking to quash the CEO’s decision on the basis that it was contrary to the plain language of the statute, did not grapple with the purpose of the statute, and failed to take into account Charter values. It later amending the application to seek an order of mandamus, compelling the CEO to pay them for the final two quarters of 2022 and the first quarter of 2023, on the theory that the CEO did not have the power to interpret the Act, but merely occupied the role of a “mechanical, non-discretionary paymaster”.
Decision:
Application dismissed (per Sachs, Backhouse and Lococo JJ).
The CEO’s decision that New Blue was ineligible for the lump-sum payment under s. 32.1 of the EFA was reasonable.
Mandamus was not available because the CEO’s response to New Blue constituted a decision. The key question for the court, as well as the primary disagreement between the parties centered on whether a proper interpretation of the EFA would require the CEO to pay quarterly allowances to New Blue. The CEO exercised his statutory authority under the EFA in deciding that New Blue was not entitled to the quarterly allowance payment it sought. This decision affected New Blue’s legal rights and entitlement to privileges under the EFA. Mandamus only applies where a decision has not been made. As there was no refusal to perform a public duty and New Blue had no clear right to the CEO’s performance of a duty to make the payments, the test for mandamus was not met.
The CEO rendered a reviewable decision when he informed New Blue of its ineligibility for the quarterly subsidies under s. 32.1(2.1) of the EFA. Per Vavilov, the CEO’s decision was reviewable on the reasonableness standard.
The CEO’s decision did not ignore the plain language of the statute. Words of a heading in a statute cannot be considered in its interpretation, as they do not form a part of the statute itself. The express language of s. 32.1(2.1) supported the CEO’s interpretation of the provision as modifying a party’s entitlement to the allowances as well as altering the schedule for payment of the allowances.
Even if New Blue’s interpretation of the legislation was reasonable, if the CEO’s decision was also reasonable, the interpretation adopted by the decision maker must be respected.
The CEO’s decision did not unreasonably ignore the purpose of the statute. New Blue’s letter demanding payment provided a textual interpretation of the statute but did not make any reference to the purpose of the legislation. As New Blue did not argue the inconsistency of the decision with the purpose of the legislation before the CEO, it should not be able to do so now. As an officer of Ontario’s Legislative Assembly, with statutory authority to administer the EFA,rather than an adjudicator, the CEO was only required to explain the reasons for his decision, taking into account the arguments put before him. He is not required to consider every aspect of the statutory context that might bear upon his decision. The decision should not be considered unreasonable for failing to explicitly deal with the argument about the statute’s purpose when it was not put before him.
In any event, the decision was consistent with the statute’s purpose.
The CEO’s decision was not unreasonable because it failed to consider Charter values. The Charter argument was similarly never raised before the CEO. In any event, the Charter neither favours nor disfavours subsidies to political parties being determined with reference to any particular point in time.
As the CEO did not have to consider statutory purposes and Charter values in making its payment decision, and had sufficient support from the wording of the provision for its interpretation of s. 32.1(2.1) of the EFA, the CEO’s decision was reasonable.
Commentary:
This decision is reflective of greater deference in lower courts towards administrative decision makers when Charter values and statutory purposes are in play. In doing so, there is tension with recent SCC decisions.
The court effectively found that the decision maker does not need to consider Charter values or statutory purposes if the parties did not raise those arguments. While the court went on to say that these arguments would not have altered the result in any event, the holding would extend to other situations where such arguments might be determinative.
The SCC in Mason1 contrastingly held that a court’s review of reasonableness must take account of the impact of the decision on the affected individual. In that case, the Immigration Appeal Division had failed to consider that the Immigration and Refugee Protection Act was limited by Canada’s international obligations. This was seen as an omission by the court, which rendered the decision unreasonable, even though the omission had not been raised by the parties.
Admittedly, the impact on the rights of the parties in Mason was severe, to the extent that a bad outcome could have led to deportation, which weighed into the court’s analysis. In the case at bar, the court reasoned that the exclusionary effect of the CEO’s denial on New Blue did not extend to other small political parties. In fact, if New Blue’s interpretation had been adopted, other small political parties may have been excluded from the scheme instead.
This lack of appetite to follow in the SCC’s footsteps regarding a consideration of Charter values in a reasonableness review extends to other lower courts. Commission scolaire2 was released soon after the CEO made its decision in this case. However, the Divisional Court distinguished Commission scolaire on the basis that the decision made by the CEO was not discretionary as it had been in Commission scolaire. Similarly, the Federal Court of Appeal, in Sullivan v Canada (Attorney General)3, opined that “only unjustified violations of rights and freedoms can strike down legislation”. There the Social Security Tribunal was found to be reasonable in holding that the applicant was precluded under legislation and related court jurisprudence from questioning the appropriateness of the termination of his employment. The Charter values relied on there, “freedom and equality”, were seen by the court as broad and unqualified, leading the court to discuss how “everything in the Charter is subject to reasonable limits prescribed by law under section 1”.
Despite clear guidance from the SCC on the importance of considering Charter values in order to render reasonable decisions, Commission scolaire appears to be having limited traction in the lower courts so far. It is worth keeping an eye on this trend as more decisions are asked to grapple with a decision maker’s failure to consider Charter values.
CO-EDITORS
- Mason v. Canada (Citizenship and Immigration), 2023 SCC 21. ↩︎
- Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31. ↩︎
- 2024 FCA 7. ↩︎