Stevens v. Conservative Party of Canada

Stevens v. Conservative Party of Canada
Court (s) Database
Federal Court Decisions
Date
2004-11-19
Neutral citation
2004 FC 1628
File numbers
T-2465-03
Notes
Digest
Decision Content
Date: 20041119
Docket: T-2465-03
Citation: 2004 FC 1628
Ottawa, Ontario, this 19th day of November 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
THE HONOURABLE SINCLAIR STEVENS
Applicant
and
THE CONSERVATIVE PARTY OF CANADA
Respondent
- and -
THE CHIEF ELECTORAL OFFICER
Intervener
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Mr. Sinclair Stevens (the "Applicant") seeks judicial review of the decision made by the Chief Electoral Officer (the "CEO") on December 7, 2003, to accept the application made on that date to amend the registry of parties, by adding the Conservative Party of Canada, (the "Respondent") as the result of a merger made under the Canada Elections Act, S.C. 2000, c. 9, as amended (the "Act").
[2] As a collateral matter, the Applicant seeks judicial review of the decision by the CEO not to reconsider his decision to accept the merger application that had been jointly submitted by Mr. Peter MacKay, in his capacity as leader of the Progressive Conservative Party (the "PC Party") and Mr. Stephen Harper, in his capacity as leader of the Canadian Reform Conservative Alliance Party (the "Alliance Party").
[3] The Applicant brings this application pursuant to the provisions of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, on his own behalf and on behalf of several other members of the former PC Party. He seeks various forms of relief, as follows:
1. (a) An Order quashing the registration of the Conservative Party of Canada and restoring the Progressive Conservative Party of Canada to the registry of political parties pursuant to the Canada Elections Act; or
(b) in the alternative, an Order setting aside the December 7, 2003 decision of the Chief Electoral Officer to amend the registry of parties and referring the application for registration of the Conservative Party of Canada as a "merged party" back to the Chief Electoral Officer for determination in accordance with such directions as this Honourable Court considers to be appropriate.
2. An Order quashing the decision of the Chief Electoral Officer to award the Conservative Party of Canada $8,476,872.25.
3. An Order requiring the Chief Electoral Officer to answer the questions he was asked by counsel for the applicant in his letter of December 9, 2003.
4. Costs of this judicial review on a substantial indemnity scale.
5. Such further and other relief as counsel may advise and this Honourable Court may permit.
In addition, the Applicant filed a notice of constitutional question respecting sections 400 to 402 of the Act. The Applicant framed that question as follows:
In the circumstances, did the Chief Electoral Officer's dissolving of the Progressive Conservative Party contravene the rights of members of the Progressive Conservative Party embodied in section 3 of the Canadian Charter of Rights and Freedoms?
BACKGROUND
i) The Parties
[4] The Applicant is a veteran member of the PC Party. He was first elected to Parliament in 1972 and served as a Member of Parliament for several years, including some period of time as a Cabinet Minister.
[5] The CEO is an officer of Parliament, appointed by resolution of the House of Commons. He holds office until the age of 65 and may be removed from office only for cause, by the Governor General, upon the joint address of both the House of Commons and the Senate. His duties are set out in section 16 of the Act and include general direction and supervision over the conduct of federal elections and the exercise of all powers and functions necessary for the administration of the Act.
[6] The Respondent is a registered political party under the Act. It came into existence on December 7, 2003 as the result of the CEO's acceptance of the application for merger, under the Act, that was submitted by Mr. MacKay and Mr. Harper.
[7] The CEO was not originally named as a party to this application but was granted status as an Intervener by Order dated April 28, 2004.
ii) The Evidence
[8] The Applicant submitted three affidavits in support of this application, consisting of his affidavit sworn on January 24, 2004, an affidavit of Marjaleena Repo and an affidavit from Mr. Joseph Hugelin. Both Ms. Repo and Mr. Hugelin are former members of the PC Party who oppose the merger that occurred on December 7, 2003.
[9] The Applicant's affidavit includes several exhibits, including a copy of the "Agreement in Principle" (the "AIP") that was signed by Mr. MacKay and Mr. Harper on October 15, 2003, a copy of the constitution of the PC Party amended as of August 24, 2002, a copy of the decision dated December 3, 2003 of an Arbitration Panel constituted under the constitution, and a copy of the judgment delivered by the Ontario Superior Court on December 5, 2003 further to an application brought before that Court by other individuals who were opposed to a merger of the PC Party and the Alliance Party.
[10] Neither the Respondent nor the CEO filed affidavits as part of their respective application records. However, pursuant to the Federal Court Rules, 1998, SOR/98-200 (the "Rules"), a tribunal record was produced, containing the following documents:
VOLUME III - Documents produced by Elections Canada under Rule 317
TAB DESCRIPTION
7. Cover letter to Peter Rosenthal, Roach, Schwartz & Associates from Catherine Beaudoin, Gowling Lafleur Henderson LLP, dated January 28th, 2004
8. Index of documents produced by Elections Canada
9. Agreement-in-Principle (on web site of PC Party)
10. Fax transmission from Jerry Rice to Diane Davidson, dated October 21, 2003
11. Memo from Gardiner Roberts LLP, dated October 23, 2003
12. Memo from James Sprague to Diane Davidson, dated November 25, 2003
13. E-mail from James Sprague to Diane Davidson, dated December 2, 2003
14. Notice from Industry Canada from the Dir. Of Corporations Canada to Jane Burke-Robertson, dated December 3, 2003
15. Ontario Superior Court of Justice decision respecting merger issue (with handwritten notes by James Sprague) dated December 5, 2003
16. E-mail from Janice Vezina to James Sprague, dated December 5, 2003
17. Letter from Miguel Figueroa to Jean-Pierre Kingsley, dated December 5, 2003
18. Memo from Elaine Martel to James Sprague, dated December 5, 2003
19. Note to file, dated December 7, 2003
20. Letter from Stephen Harper and Peter MacKay to Jean-Pierre Kingsley, dated December 7, 2003
21. List of Registered Political Parties, dated December 7, 2003
22. Letter from Chief Electoral Officer to Stephen Harper, Peter MacKay and Senator John Lynch Staunton, dated December 7, 2003
23. Letter from Chief Electoral Officer to Peter S. Grant, dated December 8, 2003
24. Letter from Diane Davidson to Nicole Cloutier dated December 8, 2003
25. Letter from Chief Electoral Officer to all the Officers, dated December 8, 2003
26. Letter from Chief Electoral Officer to Ms. Maureen Kidd, dated December 8, 2003
27. Fax transmission from Peter Rosenthal to Jean-Pierre Kingsley, dated December 8, 2003
28. Letter from Jean-Pierre Kingsley to Miguel Figueroa, dated December 8, 2003
29. Press Releases and Media Advisories, dated December 8, 2003
30. Affidavit of Natasha LeClerc
[11] As well, in the course of the hearing of this application, the Applicant tendered the affidavit of Mr. John Anderson, President of the Progressive Canadian Party. This affidavit was marked, subject to a ruling on its admissibility.
[12] In this case, the tribunal record was produced by the CEO on January 28, 2004. The Applicant challenged the sufficiency of that record and brought a motion seeking production by the CEO of all notes, correspondence, e-mails, voice-mail and other documents in the possession of the CEO concerning the Conservative Party of Canada.
[13] By Order dated March 11, 2004, Justice Russell dismissed the motion. He found, on the basis of the affidavit material filed by the CEO, that the CEO had complied with his obligation pursuant to the Rules and had produced the relevant material that was not already in the possession of the Applicant. The CEO was not required to produce anything else. The affidavit of Natasha Leclerc, included in the tribunal record, describes the material that was considered by the CEO. That affidavit also included two schedules identifying material that was not considered to be relevant, Schedule A, and material that was considered to be subject to solicitor-client privilege. According to these schedules, the CEO determined that the constitution of the PC Party was not relevant to his decision relative to the merger application submitted on behalf of that party and the Alliance Party.
iii) Background Events
[14] The focus of the Applicant's complaint is the manner in which the CEO dealt with the merger application that was submitted on December 7, 2003, specifically the merger resolution. He claims that the resolution was improper because a merger of the PC Party was contrary to its constitution and the underlying AIP was silent about a "merger".
[15] The AIP was signed by Mr. MacKay and Mr. Harper on October 15, 2003 and provides, in part, as follows:
1. Name of the party
The name of the new party will be the "Conservative Party of Canada".
2. Principles governing the relationship between the Progressive Conservative Party of Canada and the Canadian Alliance
a. The Canadian Alliance and Progressive Conservative Party will treat each other as equal partners;
b. The Conservative Party of Canada will promote and maintain relationships with existing provincial Progressive Conservative parties and will not establish provincial parties;
c. We will create a national force that reaches out to all Canadians, not just like-minded conservatives.
...
[16] The AIP was presented to the membership of the Alliance Party for a vote, by means of a mail ballot. Mr. Jerry Rice, a representative of the Alliance Party wrote a letter, dated October 21, 2003, to the office of the CEO, posing some questions. Mr. Rice inquired whether a merger could occur between the existing PC Party, the Alliance Party, and a "new Conservative Party".
[17] The record shows that on November 25, 2003, a meeting was held with representatives of the office of the CEO. Representatives of both the PC and Alliance Parties attended, as well as Ms. Diane Davidson, deputy Chief Electoral Officer and Mr. James Sprague, Chief Legal Counsel to the CEO. Mr. Sprague subsequently prepared a draft memorandum for Ms. Davidson in which he outlined the matters that were discussed at that meeting.
[18] This memo, dated November 25, 2003, indicates that one subject of discussion at that meeting was a merger between the existing parties, rather than a merger between those parties and a "new" Conservative Party. The memo also refers to a draft merger application that was submitted to the representatives of the CEO. There was some discussion about the wording of the merger resolution that had been prepared and the representatives of the two parties were advised to clarify the intention of the resolution, as follows:
...
4. The value of clarity of intent in the resolutions to merge the parties.
Party representatives advised the meeting that the Alliance vote respecting the potential merger would likely take place on December 4th, 2003 and the PC vote would likely take place on December 6th. The CEO advised the party representatives that, as was his practice respecting initiatives of this nature by parties, he was prepared to adopt flexible and responsive procedural processes to respond effectively and efficiently to any application which might be submitted to his office.
Party representatives also raised concerns as to timing concerns respecting the ability for the various electoral district associations of the two parties to effectively and practically merge their affairs after a potential merger of the two parties in earlier December in light of the coming into force of Bill C-24 on January 1, 2004.
[19] The vote by members of the PC Party on the AIP was scheduled for December 6, 2003. 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.
[20] The Ontario Superior Court heard the application on December 4, 2003 and delivered its judgment, reported as Ahenakew v. MacKay (2003), 68 O.R. (3d) 277 aff'd. (2004), 241 D.L.R. (4th) 314 (C.A.), on December 5, 2003. In his judgment, Justice Juriansz said that the AIP "clearly contemplates a merger", but he made no finding as to its sufficiency as a merger resolution, saying that was a matter to be determined by the CEO.
[21] Justice Juriansz described the various declarations initially sought in the application before him and noted that many of these prayers for relief had been abandoned, leaving only the question whether the common law principle pertaining to the rights of members of voluntary unincorporated associations applied to the affairs of a registered political party and whether the injunctive relief against the transfer of party funds should be granted.
[22] He decided that the common law rule discussed in Astgen et al. v. Smith et al., [1970] 1 0.R 129 (C.A.) and applied in Organization of Veterans of the Polish Second Corps of the Eighth Army v. Army, Navy & Air Force Veterans in Canada et al. (1978), 20 O.R. (2d) 321 (C.A.) did not apply to the affairs of a registered political party, which has a distinct legal personality pursuant to the Act. He also decided that the applicants had not sought an injunction relative to the pending vote on December 6, 2003. Justice Juriansz dismissed the application.
[23] On Saturday, December 6, 2003, the AIP was submitted to the PC Party for a vote. The preamble to the resolution provides in part, as follows:
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.
...
[24] On the following day, December 7, 2003, Mr. MacKay and Mr. Harper, as leaders of the PC Party and the Alliance Party respectively, submitted a merger application to the CEO, pursuant to the Act. The covering letter, in that regard, provided in part as follows:
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.
[25] Section 366(2) applies when a political party is seeking registration. It must provide, with its application, information abut the full name of the political party, the short-form name or its abbreviation, if any, that is to appear on election documents, the party's logo, if any, the name and address of the leader of the party, the address of the party's office where records are maintained and where communications may be addressed, the names and addresses of the officers of the party, and name and address of the appointed auditor of the party with their signed consent to act, the names and addresses of the party's chief agent and their consent to act, and the names, addresses and signatures of one hundred electors who are members of the party.
[26] The CEO accepted the merger application on December 7, 2003 and wrote a letter to Mr. Harper, Mr. MacKay and Senator Lynch-Staunton, as follows:
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 name and the short-form name of the merged party did not so resemble the name and the short-form name of a registered party or an eligible party as shown on the registry of political parties that it would, in my opinion, likely be confused with it. In making this decision, I did not consider the names, or short-form names of the Progressive Conservative Party of Canada or the Canadian Reform Conservative Alliance as those names would be replaced on the registry in the event that the application was approved and would not, therefore, be confused with the name, or short-form name of the Conservative Party of Canada by a member of the Canadian electorate in the exercise of his or her rights under the Canada Elections Act.
The name and the short-form name of the Conservative Party of Canada/Parti conservateur du Canada does not include the word "independent" or a word that so resembles "independent" that it would in my opinion, likely be confused with it.
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. (Emphasis added)
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.
[27] On December 8, 2003, the CEO gave notice, pursuant to the Act, to the Canada Gazette, the Broadcasting Arbitrator, and the Canada Customs and Revenue Agency, that the registry of parties was amended on December 7, 2003 by replacing the names of the PC Party and the Alliance Party, that is the merging parties, with the name of the merged party, that is the Respondent.
[28] On December 8, 2003, the Applicant contacted the office of the CEO. He raised questions concerning the speed with which the decision was made on December 7, 2003 to accept the merger application that had been submitted by Mr. MacKay and Mr. Harper. He spoke, at one point, with Mr. Sprague, Senior Legal Counsel to the CEO. According to a memorandum from Mr. Sprague that was prepared concerning this telephone conversation with the Applicant, there was nothing unusual in the fact that this decision had been made on a Sunday. In this regard Mr. Sprague referred to the decision made by the CEO, on a Sunday, relative to the 1997 general election in light of the occurrence of a flood in Manitoba in that year. The memorandum in question is contained in the tribunal record.
[29] That same day, that is December 8, 2003, the Applicant retained counsel to communicate, on his behalf, with the CEO and to pursue certain questions concerning the propriety of the decision by the CEO to accept the merger application on the very day upon which the application had been made, without giving the Applicant, and like-minded individuals, the opportunity to make submissions.
[30] Over the period from December 8, 2003 to December 16, 2003, counsel for the Applicant sent various letters and supporting documents to the CEO, including an affidavit from the Applicant detailing the areas of concern. The Applicant set out his grounds for questioning the decision of the CEO to accept the merger application. The primary basis for the Applicant's claim, in this regard, was an alleged deficiency in the merger resolution, primarily his contention that the merger resolution was contrary to the constitution of the PC Party. The Applicant focused on clause 2.2.3 of the constitution which provides that that party will nominate a candidate for 301 seats, that being the total number of seats prior to the recent amendment of electoral districts. He also requested the CEO to reconsider his decision.
[31] By letter dated December 17, 2003, the CEO responded. He declined to reconsider his decision and said that, even if there were irregularities in the process followed by the PC Party, they were not of such nature to affect the fairness of the vote undertaken on December 6, 2003 and the subsequent steps taken by the leader of the Party. The CEO neither acknowledged nor denied that he had the power to reconsider but in the result, he declined to reconsider his decision of December 7, 2003, that is, to accept the merger application and amend the registry to record the Conservative Party of Canada as a new registered party and as the successor of the PC Party and the Alliance Party.
[32] On December 30, 2003, the Applicant commenced this application for judicial review.
SUBMISSIONS
i) The Applicant
[33] The Applicant argues that the CEO erred in law in the manner in which he reviewed and accepted the merger application submitted by the PC and the Alliance Parties. In the first place, the merger resolution that was submitted was not a proper resolution since it contravened the constitution of the PC Party, which expressly limited the number of candidates to be fielded by that party in a federal election to 301, as per the existing number of seats at the time.
[34] However, the Applicant also submits that the merger resolution was improper because the process leading to the vote on December 6, 2003 did not comply with the various steps and schedules set out in the AIP, for example, the appointment of representatives by both the PC and Alliance Parties to the leadership organizing committee no later than December 15, 2003 and the establishment of a joint council with certain responsibilities. These steps were not carried out and according to the Applicant, the CEO should not have accepted the resolution, knowing that certain provisions of the AIP had not been satisfied.
[35] The Applicant submits that the CEO erred in law by accepting the merger application and registering the merged party on the day on which the merger application was presented. He says that the haste with which the CEO dealt with the merger application caused several problems.
[36] By accepting the merger application on the day it was presented, the CEO overlooked many obvious defects in the merger application including its non-compliance with the constitution of the PC Party. This manner of dealing with the application led to a breach of the provisions of the Act that required the CEO to wait at least thirty days between the date of receipt of the merger application and the registration of the new merged party on the register of parties.
[37] Next, the Applicant submits that the CEO's haste contravened the rights of the Applicant and other similarly situated persons from exercising their common law rights, as well as their rights pursuant to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter"), to make representations relative to the proposed merger. The Applicant here relies on Astgen v. Smith, supra, Organization of Veterans of the Polish Second Corps of the Eighth Army, supra and Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912.
[38] This argument arises from the Applicant's primary argument that the merger resolution was improper because it was contrary to the party's constitution and the CEO erred in law in finding that that constitution was not relevant to his determination as to whether the merger resolution met the statutory requirements.
[39] The Applicant further submits that the CEO erred by refusing to respond to certain questions raised by the Applicant.
[40] The Applicant says that the affidavit material he submitted in support of this application for judicial review is properly before the Court and that the objections raised by the Respondent at the hearing to the use of some of the affidavit material are not well-founded. The Applicant says the material which is challenged by the Respondent is properly admissible either on the basis of necessity or upon the characterization of the challenged material as admissions against interest.
[41] The Applicant's main argument relating to the merger resolution is that it is not contemplated by the AIP that was signed by Mr. MacKay and Mr. Harper on October 15, 2003. The AIP addressed the possibility of forming a new party; it did not mention a "merger". Furthermore, the letter of October 21, 2003 from Mr. Jerry Rice to the CEO addressed the creation of a "new party" that would subsequently merge with the existing PC and Alliance Parties. According to the Applicant, this letter shows that the "plan" was to form a new party that would not be registered.
[42] The Applicant then refers to the memo dated November 25, 2003, prepared by Mr. Sprague, Chief Legal Counsel to the CEO. This memo outlines the matters discussed at a meeting on November 25, 2003, attended by Ms. Diane Davidson, Deputy CEO, Mr. Sprague and representatives of both the PC and the Alliance parties. Mr. Sprague noted that there was discussion about the need to appoint a leader of the new party and also expressed concern about the "clarity of intent in the resolution to merge".
[43] According to the Applicant, these documents show that between October 21, 2003, when Mr. Rice wrote to the CEO with certain questions about the application of the merger provisions in the Act to a merger between an unregistered newly formed party with two existing registered parties, and the meeting of November 25, 2003, a change in purpose had occurred. There was no longer a plan to create a "new" party but an intention to merge the two existing parties and this intention was not stated in the AIP.
[44] The Applicant refers to clause 2.2.3 of the PC Party constitution which provides as follows:
2.2.3 Provide an organizational framework within which Members of the Progressive Conservative Party of Canada can effect change, gather public support for its policies and influence government policy through the nomination of Progressive Conservative candidates in every constituency and the election of Progressive Conservative Members of Parliament, for the betterment of Canada.
According to the Applicant, this clause means that the PC Party is committed to fielding candidates in the existing 301 electoral ridings. That would not be possible if that party merged with another political party.
[45] The Applicant argues that the CEO erred by failing to take this provision of the PC Party constitution into account.
[46] The Applicant highlights the concerns expressed by Mr. Sprague in the memo of November 25, 2003, about the "clarity of intent" in the merger resolution. The merger resolution was not changed after the meeting of November 25, 2003. Since the AIP spoke only of the creation of a new registered party and not about a merger of existing parties, the Applicant says that the merger resolution, based upon the AIP, was not a proper resolution. Furthermore, the merger resolution contravened the constitution of the PC Party.
[47] The Applicant argues that the CEO erred in the manner in which he dealt with the merger application. The application was submitted on December 7, 2003. The CEO accepted it on the same day and amended the register of parties to include the "Conservative Party of Canada". He argues that this action was contrary to section 400(1) of the Act which requires the CEO to wait at least 30 days between receipt of an application to merge and the acceptance of such application, leading to an amendment of the register of registered parties.
[48] The Applicant notes that the CEO, as Intervener in this proceeding, attempts to justify having made his decision on a Sunday. In this regard, the Applicant refers to the written argument submitted by the CEO where the CEO says there was a possibility of a by-election in Ottawa later in December 2003.
[49] The Applicant submits that a writ for a by-election is the same as a writ for an election under the Act. He suggests that if that by-election had been called, that the CEO would have been obliged, by the Act, to cancel the merger, and this is the reason why the Act requires the CEO to defer making a decision to accept a merger application for a period of thirty days.
[50] The Applicant also says that the CEO erred by failing to reconsider his decision. He acknowledges that there is no statutory obligation upon the CEO to reconsider a decision but points out that the CEO has broad powers under the Act and these powers may include the power to reconsider.
[51] The Applicant argues that if the CEO had indeed reconsidered his decision, in light of the materials submitted by the Applicant, he may have recognized that it was improper to register the merger application without waiting thirty days. Had the CEO reconsidered the decision, in light of the constitution of the PC Party, he may have reached a different conclusion.
ii) The Respondent
[52] The Respondent begins its argument with a preliminary objection to the affidavit evidence submitted by the Applicant. It argues that these affidavits are "replete" with hearsay and political opinions. Relying on Gingras v. Canadian Security and Intelligence Service et al. (1987), 19 C.P.R. (3d) 283 (Fed. T.D.) and Bell Canada v. Canada (Human Rights Commission), [1991] 1 F.C. 356 (T.D.), it says that the affidavits of the Applicant, Ms. Repo and Mr. Hugelin should be struck in their entirety.
[53] Next, the Respondent submits that the CEO's decision to accept the merger application on the day it was submitted, that is Sunday, December 7, 2003, is subject to review on the standard of patent unreasonableness. It argues that the decision meets that standard and says that the CEO was not obliged to wait for a period of thirty days.
[54] According to the Respondent, the CEO was correct when he made the decision on December 7, 2003 because no writ had been issued at that time for any election that was subject to the Act. Furthermore, the correctness of the decision has been borne out by the passage of time since no writ was issued in the period leading up to the hearing of this application.
[55] The Respondent argues that the CEO is not the arbiter of internal party matters of the PC Party. Consequently, the constitution of the party was not relevant to his decision and he committed no reviewable error in the manner with which he treated that document.
[56] The Respondent notes that this application for judicial review is brought pursuant to section 18.1 of the Federal Courts Act, supra. The grounds for judicial review are set out in section 18.1(3) and the Respondent argues that in order to succeed, the Applicant must either show that the CEO exceeded his jurisdiction, committed an error of law or made a patently unreasonable decision. The Respondent submits that the Court must review the decision on the basis of the record that was before the decision-maker, that is the material set out in the tribunal record. On this basis, none of the affidavits submitted by the Applicant should be considered since they were not before the CEO.
[57] Relying on the decision in National Party of Canada et al. v. Stephenson et al. (1996), 124 F.T.R. 108 aff'd. (1998), 230 N.R. 342 and Cavilla v. Canada (Chief Electoral Officer) (1994), 76 F.T.R. 77, the Respondent submits the applicable standard of review here is patent unreasonableness.
[58] The Respondent says that sections 400, 401 and 402 set out the mandate of the CEO in dealing with an application for merger. The CEO is required to review the application submitted and satisfy himself that the necessary materials are included. One of the necessary documents is a resolution signed by the authorized representatives of the merging parties.
[59] The Respondent says the record shows that the CEO fulfilled his mandate in accordance with the Act. He was satisfied that a proper resolution, signed by duly authorized persons, had been submitted. The Respondent says that there is no basis for intervening in the CEO's decision as to the sufficiency and propriety of the merger application. A complete application was submitted on December 7, 2003. No additional material was required.
[60] As well, the Respondent notes that the Applicant had submitted to the arbitration process provided by the constitution of the PC Party, to challenge the pending membership vote on the implementation of the AIP. The Applicant withdrew from the arbitration proceeding. The Arbitration Panel delivered its decision on December 3, 2003, shortly before the date of the vote. The Arbitration Panel concluded that the proposed vote on the AIP did not offend the Party's constitution, without specifically addressing the merits of the resolution.
[61] The Respondent argues that if the Applicant was dissatisfied with this decision, he could have sought judicial review of the Arbitration Panel's decision before the Courts of Ontario. The Respondent submits that this would have been the proper avenue to challenge the compliance by the PC Party with its constitution. The issue of compliance with the constitution is not within the mandate of the CEO.
[62] The Respondent also commented upon the recent decision of the Ontario Court relative to an application brought by other members of the PC Party in Ahenakew, supra. In that application, certain individuals were seeking an injunction against the transfer of party funds. In a decision delivered on December 5, 2003, Justice Juriansz of the Ontario Superior Court reviewed the grounds of the application and the arguments advanced relative to the common law rights of members of a voluntary unincorporated association.
[63] He dismissed the application, saying that the AIP contemplated a merger. He also said that, as a political party registered under the Act, the PC Party enjoyed the significant benefits of registration, including recognition as a "person" for certain purposes. These factors negate the applicability of the common law principles regarding voluntary associations.
iii) The Intervener
[64] The CEO, as intervener, frames his submissions in the context of the principles applicable to judicial review. An application for judicial review is intended to address errors in the proceedings of the inferior tribunal. New evidence may not be admitted upon an application for judicial review and there is no obligation upon the decision-maker, in this case the CEO, to seek out evidence. The CEO relies on Via Rail Canada Inc. v. Canada (Human Rights Commission), [1998] 1 F.C. 376 (T.D.) as authority for this submission.
[65] In terms of this application, the CEO submits that there is no duty upon him to inform himself of the internal affairs of political parties. The CEO relies upon Stephenson, supra, in support of this argument.
[66] Finally, the CEO submits that the applicable standard of review is patent unreasonableness. The obligations of the CEO are set out in sections 400 to 403 of the Act. He is to determine if an application meets the statutory criteria, including the question of time. If the requirements are met, then the CEO is obliged to amend the registry of parties, pursuant to section 401(1).
[67] The application for merger is the resolution that was signed by the leaders of the PC Party and the Alliance Party, respectively. It is accompanied by certificates signed by Mr. MacKay and Mr. Harper.
[68] According to the Arbitration Panel, the resolution is "sufficiently clear". The CEO says that the Arbitration Panel addressed the constitutionality of the resolution and submits that the Panel's decision is consistent with the application of democratic values to determine fundamental political questions.
[69] The CEO says there is no evidence that Mr. MacKay was acting capriciously in submitting the resolution and certificate.
[70] The first decision made by the CEO was that the application met the statutory criteria. There was a resolution from each of the merging parties and the CEO was satisfied that the merger was not made in the period referred to in section 400(1) of the Act. The CEO argues that these were questions of fact and are reviewable on a standard of patent unreasonableness.
[71] As well, the CEO notes that the issue of time lines was not raised by the Applicant in his request for reconsideration.
[72] The CEO determined if the merger parties were up to date with the filings required under the Act. These filings had to be made before December 7, 2003, the date on which the merger application was submitted.
[73] The CEO also notes that up to December 7, 2003, the Applicant had not contacted his office. The first communication was on December 8, 2003 when the Applicant made telephone contact. This initial contact was followed by a number of letters sent by counsel for the Applicant, that is on December 8, December 9, December 11, and December 16. The CEO says that if there was an obligation upon him to reconsider his decision and if there was an error in that regard, these written submissions are relevant, as providing the basis for any recommendation.
[74] However, the CEO argues that he had no power to reconsider his decision and if he did, there was no reviewable error in his decision to maintain the decision taken on December 7, 2003, that is to accept the merger application.
FURTHER SUBMISSIONS
[75] Following delivery of its judgment by the Ontario Court of Appeal, in an appeal from the Order of Mr. Justice Juriansz, dismissing that appeal, the parties were provided with the option of filing further submissions upon Ahenakew, supra. All parties availed of this opportunity.
i) The Applicant
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