Wednesday, March 2, 2011

Federal Court of Appeal Canada Date: 20110228 Docket: A-63-10 Citation: 2011 FCA 74 CBC text

Federal Court of Appeal Canada

Date: 20110228


Docket: A-63-10

Citation: 2011 FCA 74

CORAM: EVANS J.A.

DAWSON J.A.

TRUDEL J.A.

BETWEEN:


THE CHIEF ELECTORAL


OFFICER OF CANADA




Appellant

and

L.G. (GERRY) CALLAGHAN, in his

capacity as official agent for

ROBERT CAMPBELL and

DAVID PALLETT,

in his capacity as official agent

for DAN MAILER

Respondents

Heard at Ottawa, Ontario, on November 23-24, 2010.

Judgment delivered at Ottawa, Ontario, on February 28, 2011.

REASONS FOR JUDGMENT BY: THE COURT

Federal Court of Appeal

Cour d'appel fédérale

Table of Contents

I INTRODUCTION

[1] - [11]

II CEOC’S APPEAL

Statutory Framework [12] - [23]

CEOC’s Decision [24] – [28]

Federal Court’s Decision [29] – [34]

Issues and Analysis

Issue 1: Does the CEOC have the power to verify election

expenses claimed by candidates? [35] – [78]

Issue 2: Was there sufficient material before the

CEOC on which he could reasonably decline

to state that he was satisfied that the Respondents

had incurred a portion of the cost of the

RMB advertisements which they claimed as

election expenses? [79] – [106]

III RESPONDENTS’ CROSS-APPEAL

Introduction [110] – [112]

Statutory Provisions [113] – [115]

Federal Court’s Decision [116] – [121]

Analysis [122] – [130]

Conclusion [131]

Date: 20110228

Docket: A-63-10

Citation: 2011 FCA 74

CORAM: EVANS J.A.

DAWSON J.A.

TRUDEL J.A.

BETWEEN:

THE CHIEF ELECTORAL

OFFICER OF CANADA

Appellant

and

L.G. (GERRY) CALLAGHAN, in his

capacity as official agent for

ROBERT CAMPBELL and

DAVID PALLETT,

in his capacity as official agent

for DAN MAILER

Respondents

REASONS FOR JUDGMENT

THE COURT

I INTRODUCTION

[1] This is an appeal by the Chief Electoral Officer of Canada (CEOC) from a decision of the

Federal Court (2010 FC 43). In that decision, Justice Martineau (Judge) granted the application for

judicial review brought by the Respondents to this appeal. He ordered the CEOC to certify to the

Receiver General that all the election expenses submitted by the Respondents in their capacity as the

Federal Court of Appeal

Cour d'appel fédérale

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official agents for two Conservative Party of Canada (Party) candidates at the 2005-2006 general

election were eligible for reimbursement.

[2] The Judge held that the CEOC had wrongly refused to certify as election expenses payments

made by the Respondents in respect of costs incurred for certain television and radio political

advertisements that were broadcast in the Respondents’ electoral districts. The Respondents had

made the payments in question to the Party from funds which the Party had provided to them earlier

that day for this purpose. The Judge concluded that the CEOC had erred by refusing to state that he

was satisfied that the payments by the Respondents were for advertising costs that they had

incurred.

[3] The Respondent Callaghan has cross-appealed the Judge’s determination of the amount of

the cost of the pooled political advertisements that should be allocated to him as an election

expense. The Judge divided the cost equally among candidates in Mr Callaghan’s region who had

agreed to pool their resources to contribute to the cost of the advertisements which were broadcast

the same number of times in each of their electoral districts.

[4] This litigation arises from a scheme devised by the Party in early December 2005, about a

month into the election campaign, when it had already spent close to the maximum amount of the

election expenses permitted under the Canada Elections Act, S.C. 2000, c. 9 (Act). Party officials

invited Conservative candidates who had not reached their spending limit to contribute, with others

in their region, to a pooled “regional media buy” (RMB).

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[5] Candidates were asked by Party officials to commit an amount of money, up to their

spending limits, for national advertisements produced for the Party, which would be broadcast in

their electoral district, with a “tag line” indicating that the advertisement had been authorized by the

official agent of the participating candidate. The Party paid into the bank accounts of participating

candidates, including the two for whom the Respondents acted as official agents, an amount equal

to the amount that each candidate had committed to the RMB. It was a condition of the transfer of

these funds that the candidates remit an equivalent amount to the Party to pay for a share of the

RMB advertising.

[6] The campaigns participating in this scheme, including those run by the Respondents, duly

remitted the money, which they subsequently entered as an election expense, and claimed part of it

back from the Receiver General by way of reimbursement. The payment by the candidate to the

Party was to be made on the same day that the Party transferred the funds to the candidate. These

arrangements are known as “in-and-out” transactions.

[7] On the basis of the documents submitted by the Respondents in support of their election

expenses, the CEOC was not satisfied that the payments made to the Party through the in-and-out

transactions represented the cost of advertisements that the Respondents, and the other candidates

who participated in the in-and-out transactions, had in fact incurred. His concern was that the

advertising costs might have been incurred, not by the candidates, but by the Party when it arranged

with its advertising agent to have the advertisements broadcast and that, because the Party had

almost reached its permitted spending limit, it had merely transferred these costs to participating

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candidates through the in-and-out transactions. Accordingly, he refused to include these amounts in

the certificate that the Respondents needed in order to obtain from the Receiver General

reimbursement of election expenses for costs that they had incurred.

[8] On our analysis of the statutory scheme respecting election expenses, this appeal turns on

the answer to the following question. Was there sufficient material before the CEOC on which he

could reasonably decline to state that he was satisfied that the Respondents had incurred a portion of

the cost of the RMB advertisements which they claimed as election expenses in their electoral

campaign returns?

[9] With all respect to the Judge, who reached the opposite conclusion, in our view the CEOC’s

decision was not unreasonable. Accordingly, the appeal will be allowed and the Respondents’

application for judicial review dismissed.

[10] The Respondent Callaghan’s cross-appeal of the Judge’s allocation of the costs of the

pooled advertising among members of the pool will also be allowed. Since we have concluded that

it was reasonably open for the CEOC on the information available to him to refuse to certify the

disputed election expenses, there are no candidates’ costs with respect to the RMB to allocate. In the

absence of a decision by the CEOC on the question, the Judge should not have made his own

calculation of the share of the advertising cost attributable to Mr Callaghan’s candidate’s campaign.

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[11] This application for judicial review was originally brought by 35 of the 67 official agents

whose candidates participated in the in-and-out transactions and claimed the cost of the RMB as an

election expense that they had incurred. The particular circumstances of the different participants

varied. So, in order to reduce complexity, only the current Respondents proceeded with the

application. However, this is a test case, not a representative proceeding.

II CEOC’S APPEAL

Statutory Framework

[12] We set out the provisions of the Canada Elections Act of most immediate relevance to this

appeal in our analysis of the issues of statutory interpretation. It is unnecessary to repeat them in this

overview of the legislative scheme as it pertains to the appeal. Similarly, the factual background is

detailed in our description of the CEOC’s decision and in our analysis of the evidence available to

the CEOC when he decided that he was not satisfied on the basis of the documents submitted to him

that the cost of the RMB had been incurred by the candidates, rather than by the Party.

[13] The overall objectives of the Act were clearly explained by Justice Bastarache writing for

the majority in Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, when he

said (at para. 62):

First, the State can provide a voice to those who might otherwise not be heard. The

Act does so by reimbursing candidates and political parties and by providing

broadcast time to political parties. Second, the State can restrict the voices which

dominate the political discourse so that others may be heard as well. In Canada,

electoral regulation has focussed on the latter by regulating electoral spending

through comprehensive election finance provisions. These provisions seek to create

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a level playing field for those who wish to engage in the electoral discourse. This in

turn, enables voters to be better informed; no one voice is overwhelmed by another.

[emphasis added]

[14] Reimbursement Registered parties and candidates are both entitled to a partial

reimbursement of their election expenses from public funds. Candidates who receive more than

10% of the total number of votes cast are entitled to an initial reimbursement of 15% of their

election expenses (section 464). On the submission of a candidate’s electoral campaign return, and

when satisfied that the candidate has complied with the statutory reporting provisions, the CEOC

must provide a certificate setting out the final amount of reimbursement of the candidate’s election

expenses, which may not exceed 60% of the expense limit (section 465). Any surplus remaining in

a campaign bank account after all debts have been paid, and any reimbursement received, goes to

the party or to the electoral district association (sections 471- 472).

[15] Registered parties that receive at least 2% of the total number of votes cast, or at least 5% of

the votes cast in the electoral districts where they ran candidates, are entitled to a reimbursement of

50% of their election expenses (section 435).

[16] Spending limits The Act contains formulae for calculating the spending limits of

individual candidates (sections 440-441) and registered parties (section 422). It is an offence for

candidates (paragraphs 497(1)(s), 497(3)(p) and 502(1)(c)) and parties to exceed these limits

(paragraphs 497(1)(l), (3)(g) and section 507).

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[17] The spending limits apply to “election expenses” which include (section 407) costs incurred

in acquiring goods and services used for directly promoting a registered party, its leader or a

candidate during an election period. (Personal expenses are also limited but are not relevant to this

appeal.) Non-monetary contributions received by a candidate, and used for similar promotional

purposes, also constitute election expenses. The commercial value of non-monetary contributions

(defined in section 2) must be reported in a candidate’s electoral campaign return and counts

towards the spending limit: paragraph 451(2)(i). Monetary contributions to a campaign are reported

separately and are not election expenses for the purpose of the statutory spending limit. However, to

the extent that they are used by the candidate for an election-related cost, they are included in his or

her election expenses.

[18] Transfers The Act provides separate spending limits for parties and candidates. In

order to prevent spending limits from being defeated, a cost incurred by a party must be reported by

the party, and included in its total of election expenses. A party may not transfer a cost that it has

incurred to a candidate who has room in her or his spending limit. Monetary and non-monetary

transfers between candidates are prohibited.

[19] However, the barrier between party and candidate finances is not impermeable, because the

Act permits monetary and non-monetary transfers between a candidate and a party or its electoral

district association (subsections 404.2(2), (2.1), (2.2) and (3)). Thus, for example, money, goods, or

services transferred by a party to a candidate are not included in the party’s election expenses and

do not count towards the party’s spending limit. However, when the money is spent by the

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candidate on an election-related item, that amount is an election expense of the candidate, as is the

commercial value of goods and services transferred by a party for use in a candidate’s election

campaign.

[20] Official agents A candidate must appoint an official agent before the campaign

incurs an election-related cost or accepts a campaign contribution. The official agent acts, in effect,

as treasurer of the campaign and is responsible for managing its finances and ensuring compliance

with the rules regulating the financial aspects of a campaign (subsection 83(1) and sections 436 -

437). The official agent is responsible for keeping records of contributions and disbursements, and

must submit to the CEOC an audited return, with supporting documents, after the election: see

sections 451 - 456 for details. In order that campaigns do not accidentally exceed their spending

limits, and to ensure proper accountability, only the candidate, the official agent, or a person

authorized in writing by the official agent, may incur an expense (subsection 438(5) and

paragraph 446(c)).

[21] Similar provisions apply to registered parties. The chief agent of a party is essentially the

equivalent for the party of a candidate’s official agent (section 415). The chief agent of the Party is

the Conservative Fund Canada.

[22] Chief Electoral Officer of Canada The CEOC has overall responsibility for the conduct

of elections in Canada, and exercises the powers and performs the functions and duties necessary

for the administration of the Act (section 16). Public confidence in a fair electoral process depends

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on the actual and perceived neutrality of the office. To underline the importance of the position to

the maintenance of democracy in Canada, the CEOC is a Parliamentary officer, who holds office on

terms similar to those of a superior court judge (subsection 13(1)), and communicates with the

Governor in Council for the purposes of the Act through the designated Minister (subsection 15(4)).

[23] Of particular relevance to the present case, the CEOC receives the electoral campaign

returns of candidates and parties. Normally, the CEOC accepts without further inquiry the

documents that candidates and parties are required to submit in support of the election expenses

claimed. However, when in doubt, the CEOC’s auditors make further inquiries. For this purpose,

the CEOC may require the production of documentary evidence to support the audited return

(subsection 451(2.2)) and corrections to the documents (section 457). When satisfied that candidates

and parties have fulfilled their statutory reporting duties, the CEOC certifies to the Receiver General

the amount, if any, of their claimed expenses that are eligible for reimbursement (subsection

465(1)).

Decision of the Chief Electoral Officer of Canada

[24] Having reviewed the electoral campaign return and related documents for Robert A.

Campbell, the Conservative candidate in the electoral district of Dartmouth-Cole Harbour, Nova

Scotia, the CEOC wrote a letter, dated April 23, 2007, to Mr Callaghan, in his capacity as

Mr Campbell’s official agent. The letter stated as follows.

The return includes a claimed election expense of $3,947.07 with the following

description: “2005-2006 Candidate share of media advertisement”. Having reviewed

the supporting documents evidencing this expense and taking into account the

circumstances in which the amount in question was invoiced to and paid for by the

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campaign, I wish to inform you that I am not satisfied that the documentation

submitted establishes the claimed election expense. Accordingly, the amount of

$3,947.07 invoiced to the campaign by the Conservative Fund of Canada will be

excluded from the amount I will certify to the Receiver General of Canada for the

purposes of reimbursement in accordance with section 465 of the Canada Elections

Act.

The letter ended by saying that the CEOC would reconsider the decision to exclude the disputed

expense if Mr Callaghan submitted further documentary evidence satisfying the CEOC that it was

indeed an election expense.

[25] The CEOC sent an identical letter, bearing the same date, to Mr Pallett regarding the

electoral campaign return for Dan Mailer, the Conservative candidate in the electoral district of

London-Fanshawe, Ontario, and to the other participating campaigns.

[26] On April 25, 2007, the CEOC wrote to Susan Kehoe, Interim Executive Director,

Conservative Party of Canada. He amplified as follows the reasons stated in the letter to the agents

for refusing to include the disputed expenses in the certificate.

My decision in relation to the “media buy” program was made on the basis of my

assessment of the circumstances surrounding that program, which remain

unresolved. Among other things, these included the fact that the internal invoicing

between the party and the candidates was not adequately supported by third party

documents, coupled with the absence of correlation between the various campaigns’

share of the costs for the advertisements and their commercial value with respect to

those campaigns. While there may be different ways of assessing the commercial

value, the basis upon which it is done must be a reasonable one. Commercial value

cannot be solely based on each campaign’s willingness and ability to support a

particular amount. This has been in the past, and remains, the position of Elections

Canada.

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[27] These letters followed a series of communications among the CEOC’s office (including

members of his audit team), the official agents for the various campaigns that had participated in the

RMB, and Party officials, who assumed primary responsibility for dealing with the CEOC on the inand-

out transactions and the RMB.

[28] The reasons given in the CEOC’s letters for his refusal to certify the RMB costs as election

expenses incurred by the candidates are brief. However, as a result of the ongoing discussions with

the CEOC’s office, and the requests for further information, the Party was in no doubt about the

nature of the CEOC’s concerns. In this appeal, the Respondents do not challenge the adequacy of

the CEOC’s reasons.

Decision of the Federal Court

[29] The following is a summary of the Judge’s reasons for granting the Respondents’

application for judicial review of the CEOC’s refusal to certify as election expenses the cost of the

RMB advertising that they claimed that they had incurred, and for ordering the CEOC to issue the

certificates that would enable the Respondents to obtain reimbursement from the Receiver General

of their share of this cost.

[30] First, the Judge found that any question of law involving the interpretation of the Act is

reviewable on a standard of correctness. Questions of mixed fact and law in this case are also

reviewable for correctness. This is because the record before the Court included significant material

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that was not before the CEOC when he advised the Respondents and the Party why he was not

prepared to certify the disputed election expenses for reimbursement by the Receiver General.

[31] The Judge also applied the correctness standard to questions of mixed fact and law because

the principal relief sought by the candidates was an order of mandamus to oblige the CEOC to

provide the certificate on being satisfied that they had filed the documents required by the Act.

Accordingly, the Judge said, he had to decide de novo, on the basis of the record before the Court,

not that before the CEOC, whether the candidates were entitled to the remedy sought.

[32] Second, he held that the CEOC had the authority to examine the documents provided by the

official agents in order to determine the accuracy of the information that they contained. In

particular, the CEOC could consider whether the candidates had in fact incurred the costs on which

their claim for the reimbursement of the disputed election expenses was based, and whether their

financial return correctly stated the commercial value of goods and services supplied to them.

[33] Third, on the basis of the material before him, the Judge concluded that the costs of the

RMB advertising were properly claimed by the Respondents as their election expenses, because

they had incurred the cost of paying for the advertising which, he found, had been supplied to them

by the Party. He also said that, even if he had reviewed the CEOC’s decision on a reasonableness

standard, he would have concluded that it was unreasonable for the CEOC not to be satisfied that

the requirements of the Act had been complied with.

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[34] The Judge granted an order of mandamus requiring the CEOC to provide new certificates to

the Receiver General that include the disputed advertising expenses claimed by the Respondents, in

accordance with his reasons. In addition, he granted an order of certiorari to quash the CEOC’s

decision refusing to include the disputed election expenses in the certificate.

Issues and analysis

Issue 1: Does the CEOC have the power to verify election expenses

claimed by candidates?

(i) Introduction

[35] The Respondents argue that the CEOC’s statutory function with respect to candidates’

statements of election expenses is narrow in scope. Contrary to the Judge’s conclusion, the

Respondents assert that the CEOC is only authorized to review the documents submitted to him

pursuant to the Act. His function, they say, is limited to ensuring that all the statutorily required

documents have been submitted and, on their face, disclose that a candidate incurred an election

expense as defined in the Act.

[36] Once satisfied that an official agent has submitted the required documents, the Respondents

argue, the CEOC is under a duty to provide a certificate of compliance to the Receiver General, so

that candidates can be paid the final instalment of the reimbursement of their election expenses. The

Act confers no audit function on the CEOC with respect to candidates’ electoral campaign returns.

Hence, he is not entitled to go behind the documents submitted in order to determine if, for

example, candidates have in fact incurred the costs claimed as election expenses, or have correctly

stated the commercial value of goods or services provided to them.

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[37] The Judge rejected this argument. He held that it is within the discretion of the CEOC to

conduct an audit of a candidate’s electoral campaign return as circumstances indicate. The audit

may examine the accuracy of the return, including a claim in the return that a particular election

expense represented a cost incurred by the candidate to promote his or her candidacy.

[38] In our view, the Judge was correct. We also agree with his conclusion that the CEOC was

entitled to no deference on the question of statutory interpretation concerning the role of the CEOC.

In any event, since the CEOC appears not to have ruled on the scope of his statutory mandate, there

is no decision by the CEOC on this question to review.

(ii) Statutory provisions

[39] The following provisions of the Act are of immediate relevance to determining the scope of

the CEOC’s role with respect to election expenses. The starting point is subsection 465(1), which

the CEOC relied upon when advising the Respondents that he was not satisfied that the payments

that they had made to the Party through the in-and-out transactions were eligible for reimbursement

under subsection 465(2) as election expenses of the candidates.

465.(1) On receipt of the documents

referred to in subsection 451(1), or an

update of them under subsection

455(1), 458(1) or 459(1), from a

candidate named in a certificate

referred to in subsection 464(1), the

Chief Electoral Officer shall provide

the Receiver General with a certificate

that

(a) states that the Chief Electoral

465.(1) Dès qu’il reçoit pour un

candidat dont le nom figure sur un

certificat les documents visés au

paragraphe 451(1) ou la version

modifiée de tels documents prévue aux

paragraphes 455(1), 458(1) ou 459(1),

le directeur général des élections remet

au receveur général un certificat

établissant:

a) sa conviction que le candidat et son

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Officer is satisfied that the candidate

and his or her official agent have

complied with the requirements of

subsection 447(2) and sections 451 to

462;



(d) sets out the amount of the final

instalment of the candidate’s election

expenses and personal expenses

reimbursement.

(2) The amount referred to in paragraph

(1)(d) is the lesser of

(a) 60% of the sum of the candidate’s

paid election expenses and paid

personal expenses, less the partial

reimbursement made under section

464, and

(b) 60% of the election expenses limit

provided for in section 440, less the

partial reimbursement made under

section 464.

agent officiel ont rempli les conditions

imposées au titre du paragraphe 447(2)

et se sont conformés aux articles 451 à

462;

[…]

d) le montant du dernier versement du

remboursement des dépenses

électorales et des dépenses personnelles

du candidat établi en conformité avec le

paragraphe (2).

(2) Le montant visé à l’alinéa (1)d) est

le moins élevé des montants suivants :

a) 60 % de la somme des dépenses

électorales payées et des dépenses

personnelles payées, exposées dans le

compte de campagne électorale du

candidat, moins le remboursement

partiel déjà reçu au titre de l’article 464;

b) 60 % du plafond des dépenses

électorales établi pour la circonscription

au titre de l’article 440, moins le

remboursement partiel déjà reçu au titre

de l’article 464.

[40] Of the documents to be submitted pursuant to subsection 465(1), the most relevant for

present purposes are those described in paragraphs 451(1)(a), (2)(a), (b) and (i).

451.(1) The official agent of a

candidate shall provide the Chief

Electoral Officer with the following in

respect of an election:

(a) an electoral campaign return,

substantially in the prescribed form, on

the financing and expenses for the

candidate’s electoral campaign;



451. (1) L’agent officiel d’un candidat

produit auprès du directeur général

des élections pour une élection :

a) un compte de campagne électorale

exposant le financement et les

dépenses de campagne du candidat

dressé, pour l’essentiel, sur le

formulaire prescrit ;

[…]

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(2) The electoral campaign return

shall include the following in respect

of the candidate:

(a) a statement of election expenses;

(b) a statement of electoral campaign

expenses, other than election

expenses;



(i) a statement of the commercial value

of goods or services provided and of

funds transferred by the candidate to a

registered party, to a registered

association or to himself or herself in

his or her capacity as a nomination

contestant;



(2) Le compte comporte les

renseignements suivants à l’égard du

candidat :

a) un état des dépenses électorales ;

b) un état des dépenses de campagne,

autres que les dépenses électorales ;

[…]

i) un état de la valeur commerciale des

produits et services fournis et des fonds

cédés par le candidat à un parti

enregistré, à une association enregistrée

ou à sa campagne à titre de candidat à

l’investiture ;

[…]

[41] An “electoral campaign expense” is in turn defined in section 406.

406. An electoral campaign expense

of a candidate is an expense

reasonably incurred as an incidence of

the election, including

(a) an election expense;



406. Les dépenses de campagne des

candidats sont constituées par les

dépenses raisonnables entraînées par

l’élection, notamment :

a) leurs dépenses électorales;

[…]

[42] “Election expense” is itself a defined term.

407. (1) An election expense includes

any cost incurred, or non-monetary

contribution received, by a registered

party or a candidate, to the extent that

the property or service for which the

cost was incurred, or the non-monetary

contribution received, is used to

directly promote or oppose a registered

party, its leader or a candidate during

an election period.

407. (1) Les dépenses électorales

s’entendent des frais engagés par un

parti enregistré ou un candidat et des

contributions non monétaires qui leur

sont apportées, dans la mesure où les

biens ou les services faisant l’objet des

dépenses ou des contributions servent à

favoriser ou à contrecarrer directement

un parti enregistré, son chef ou un

candidat pendant une période

électorale.

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(iii) CEOC’s position

[43] Reading these provisions together in the context of the facts of the present case, the CEOC

argues that subsection 465(1) requires that, before providing a certificate to enable the Respondents

to obtain from the Receiver General a reimbursement of the money transferred by the candidates to

the Party under the in-and-out scheme, the CEOC had to be satisfied that it constituted an election

expense of the candidates as defined in subsection 407(1).

[44] The CEOC further submits that, to be eligible for reimbursement as an election expense, the

expense must fall within the definition in subsection 407(1): “any cost incurred … by a candidate, to

the extent that the … service for which the cost was incurred … is used to directly promote ... a

registered party, its leader or a candidate during an election period.”

[45] Despite the national nature of the advertisements appearing under the RMB, the CEOC does

not now dispute that their purpose was “to directly promote” the candidates in whose electoral

districts they were broadcast. Consequently, it is not necessary for us to express an opinion on

whether the following underlined words of subsection 407(1), “directly promote ... a registered

party, its leader or a candidate …” are conjunctive or disjunctive.

(iv) Respondents’ position

[46] The Respondents advance three arguments to support their contention that subsection 465(1)

requires the CEOC merely to “review” the documents submitted pursuant to it, in order to ensure

that all the listed documents had been received, and not to look behind them to verify either that the

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election expenses claimed were for costs actually incurred by the candidates in compliance with the

Act, or even that the documents were authentic.

[47] First, the text of subsection 465(1) does not state that the CEOC may only provide a

certificate if satisfied that a candidate’s statement of election expenses is accurate and that the

candidate has in fact incurred the underlying costs. Rather, the subsection requires that, “on receipt

of the documents”, the CEOC “shall provide the Receiver General with a certificate” that states,

among other things, that the CEOC is satisfied that the candidates have complied with sections 451

to 462.

[48] For the most part, these latter provisions require a candidate’s official agent to provide the

CEOC with specified documents, and prescribe time limits within which they must be provided.

Nowhere does the Act empower or require the CEOC to inquire into the accuracy of the statement

of election expenses in a candidate’s electoral campaign return. As this Court pointed out in Stevens

v. Conservative Party of Canada, 2005 FCA 383, [2006] 2 F.C.R. 315 at para. 25 (Stevens), when

the Act intends the CEOC to confirm the accuracy of information provided, it expressly says so

(see, for example, section 51, subsection 366(3) and paragraph 368(c)).

[49] Second, the Act expressly provides for the investigation of suspected non-compliance, and

for its enforcement. Thus, if the CEOC believes on reasonable grounds that an offence against the

Act may have been committed, the CEOC may direct the Commissioner of Canada Elections

(Commissioner) to make any inquiry that seems called for in the circumstances, and the

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Commissioner shall proceed with the inquiry: section 510. And if, after making appropriate

inquiries, the Commissioner has reasonable grounds to believe that an offence may have been

committed, the Commissioner may refer the matter to the Director of Public Prosecutions (DPP) to

consider whether to initiate a prosecution (subsections 511(1) and (2)).

[50] The CEOC instructed the Commissioner to investigate the in-and-out transactions that gave

rise to the present litigation, with a view to forming an opinion on whether the Party may have

committed an offence by exceeding its spending limit. Counsel advised us at the hearing that the

Commissioner had completed the inquiries and that the matter was with the DPP.

[51] Third, the Respondents rely on the following statements in Stevens (at paras. 26-27) where,

writing for the Court, Justice Décary said:

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.

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.

[emphasis added]

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(v) Analysis

[52] Despite the apparent attractiveness of the Respondents’ arguments, we, like the Judge, do

not accept them. They reduce the role of the CEOC under section 465 in connection with

candidates’ statements of their election expenses to a degree that does not fit with the statutory

scheme and its objectives. Stevens is distinguishable: the statements quoted above must be read in

light of the particular provisions of the Act and the very different issues with which that case was

concerned.

[53] Subsection 465(1): text The text of the subsection is compatible with the

Respondents’ interpretation; indeed, a literal reading of it lends support to their position for two

reasons. First, subsection 465(1) does not make the CEOC’s duty to provide a certificate conditional

on his being satisfied that the requirements on the submission of documents have been complied

with. It merely provides that on receipt of the documents, the CEOC shall provide a certificate

stating that he is satisfied. In contrast, subsection 435(1), the parallel provision dealing with the

certification of registered parties’ election expenses for reimbursement, and paragraph 401(1)(b), on

the amendment of the registry of parties, require the CEOC to take the actions prescribed by the

relevant provisions, if he is satisfied of certain matters.

[54] These differences in the drafting of subsection 465(1) on the one hand, and of

subsection 435(1) and paragraph 401(1)(b) on the other, may suggest that Parliament intended to

confer a more limited role on the CEOC under subsection 465(1). However, it would be a mistake,

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in our opinion, to attach determinative significance to what might be regarded as a rather subtle

difference.

[55] Second, subsection 465(1) states: “On receipt of the documents … the Chief Electoral

Officer shall provide … a certificate that …”. This suggests that the certificate is to be provided

more or less as soon as the statutorily required documents are received, which would not give the

CEOC enough time to inquire into the accuracy of the information contained in the documents

submitted, and the validity of the election expenses claimed.

[56] We agree that it is not clear from a literal reading of the text of subsection 465(1) that

Parliament intended to entrust to the CEOC the verification of the transactions underlying the

documents submitted by candidates. However, an examination of the words of the text of a statutory

provision is only the starting point in interpreting its meaning.

[57] Subsection 465(1): context and objectives In our opinion, an examination of the

broader statutory context indicates that subsection 465(1) does not mean what the Respondents say

it means. We conclude that Parliament did not intend to circumscribe the CEOC’s role by confining

him to the largely clerical function of ensuring that candidates have submitted the documents

specified in the Act and, when satisfied that they have, to providing a certificate to enable the

Receiver General to reimburse the claimed election expenses.

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[58] For the following reasons, it makes no practical sense, and is not consistent with the

statutory scheme, to interpret the Act as leaving to the Commissioner sole responsibility for

scrutinizing the documents and the supporting evidence in order to identify any offences in

connection with statements of election expenses, and for checking that the documents are not

forgeries.

[59] First, the CEOC has wide supervisory responsibilities for the conduct of elections, and the

powers and functions necessary to administer the Act.

16. The Chief Electoral Officer shall

(a) exercise general direction and

supervision over the conduct of

elections;



(d) exercise the powers and perform the

duties and functions that are necessary

for the administration of this Act.

16. Le directeur général des élections :

a) dirige et surveille d’une façon

générale les opérations électorales;

[…]

d) exerce les pouvoirs et fonctions

nécessaires à l’application de la

présente loi.

These provisions suggest a broader role under section 465 than a more or less mechanical “review”

of the documents submitted against a check list, without regard to their accuracy or whether

expenses claimed are in accordance with the Act.

[60] Second, a comparison of sections 465 and 464 is also instructive. Subsection 465 provides

for the payment by the Receiver General of the final instalment of the reimbursement of a

candidate’s election expenses when the CEOC states that he is satisfied that the official agent has

complied with the statutory reporting requirements. However, section 464 provides that the initial

instalment of the reimbursement is made after the CEOC has provided a certificate setting out the

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name of the elected candidate, the name of any candidate who received 10% or more of the valid

votes cast, and the amount that is 15% of the spending limit. Unlike section 465, payment under

section 464 does not require the CEOC to state that he is satisfied of anything, but simply to provide

some simple information.

[61] Third, subsection 451(2.1) requires the official agent of a candidate to supply documents

evidencing the election expenses claimed and, if the CEOC is of the opinion that the documents

provided by the official agent are not sufficient, subsection 451(2.2) authorizes the CEOC to require

further documents necessary to comply with subsection 451(2.1).

451. (2.1) Together with the electoral

campaign return, the official agent of a

candidate shall provide to the Chief

Electoral Officer documents evidencing

expenses set out in the return, including

bank statements, deposit slips,

cancelled cheques and the candidate’s

written statement concerning personal

expenses referred to in subsection

456(1).

(2.2) If the Chief Electoral Officer is of

the opinion that the documents

provided under subsection (2.1) are not

sufficient, the Chief Electoral Officer

may require the official agent to

provide by a specified date any

additional documents that are necessary

to comply with that subsection.

451. (2.1) L’agent official du candidat

produit auprès du directeur général des

élections, avec le compte de campagne

électorale, les pièces justificatives

concernant les dépenses exposées dans

ce compte, notamment les états de

compte bancaires, les bordereaux de

dépôt, les chèques annulés ainsi que

l’état des dépenses personnelles visé au

paragraphe 456(1).

(2.2) Dans le cas où le directeur général

des élections estime que les documents

produits au titre du paragraphe (2.1)

sont insuffisants, il peut ordonner à

l’agent officiel de produire, à une date

donnée, les documents supplémentaires

à l’application de ce paragraphe.

[62] In the present case, the CEOC requested further information under subsection 2.2 in a letter,

dated November 29, 2006, to Tabitha Fellman, official agent for Theresa Rodrigues, the Party’s

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candidate for the electoral district of Davenport, Ontario. In our view, these subsections would have

little purpose if the CEOC’s function does not include ensuring that election expenses claimed are

properly supported by documentary evidence. If the CEOC’s function under subsection 465(1) were

as limited as the Respondents allege, the CEOC would never, or hardly ever, need to request

candidates to provide the supporting evidence stipulated in subsection 451(2.1), or to require the

production of additional documents under subsection 451(2.2).

[63] The existence of these powers suggests that candidates’ duty to provide the documents

described in the sections of the Act listed in subsection 465(1) implicitly requires that the

information contained in them is correct. Similar indications are found in section 457, which

authorizes the CEOC to “correct a document referred to in subsection 451(1) or 455(1), if the

correction does not materially affect its substance”, and in section 458, under which, at the request

of a candidate, the CEOC may authorize corrections. Thus, in order to comply with the duty to

submit the listed documents, candidates must submit documents that accurately reflect the costs that

they actually incurred, and claimed as election expenses in accordance with the Act.

[64] Fourth, the fact that, unlike the CEOC, the Commissioner has the express power to make

inquiries into possible offences under the Act does not persuade us that Parliament intended the

Commissioner to have sole authority to inquire into the propriety of the expenses claimed in

candidates’ electoral campaign returns.

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[65] Unlike the Commissioner, the CEOC has residual statutory powers and does not need a

specific grant of authority to audit candidates’ electoral campaign returns. Section 16 entrusts the

CEOC with the exercise of powers and the performance of functions “necessary for the

administration of the Act.” In our opinion, monitoring the accuracy of candidates’ claims for

reimbursement from public funds, and their compliance with the statutory limits on election

expenses, are functions necessary for the administration of the Act, and thus within the CEOC’s

responsibilities.

[66] It would surely be surprising if Parliament intended to oblige the CEOC to provide a

certificate entitling a candidate to obtain a reimbursement of election expenses from public funds

when the CEOC was not satisfied that an expense claimed was statutorily permitted. To limit the

CEOC’s function in the manner urged by the Respondents is not congruent with the broad powers

and responsibilities of the office set out in section 16.

[67] Nor can it be said that by specifically empowering the Commissioner to inquire into

suspected offences under the Act, Parliament implicitly withdrew from the CEOC’s general

functions the task of verifying the propriety of candidates’ claimed election expenses. The CEOC

and the Commissioner have different roles in the administration of the Act. Making inquiries with a

view to possibly turning over a file to the DPP to decide whether to lay charges is one thing; it is

another, however, to audit returns in order to be satisfied that candidates are entitled to be

reimbursed from public funds for costs incurred during an election, and have included in their

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electoral campaign returns a complete and accurate statement of their election expenses, as well as

the commercial value of any non-monetary benefits that they had received.

[68] The Respondents say, however, that the CEOC’s interpretation of the scope of his role under

subsection 465(1) is not necessary in order to protect public funds from being paid out to reimburse

ineligible expenses. They point to paragraph 501(1)(a.1), under which a candidate can be required

to pay back a reimbursement following an inquiry by the Commissioner, and successful prosecution

by the DPP.

[69] However, this provision for restitution is only a partial safeguard of public funds. The

standard of proof in penal proceedings is high, and conviction may require proof of a guilty intent.

Accordingly, paragraph 501(1)(a.1) is unlikely to include all candidates whose expenses should not

have been reimbursed. Without the administrative check by the CEOC on the propriety of claimed

election expenses, many irregularities could well slip through unnoticed.

[70] Stevens v. Conservative Party of Canada The Respondents rely on the

paragraphs from the Court’s reasons for judgment quoted at paragraph 51 of these reasons. Read

literally, and without regard for context, they provide seemingly powerful reinforcement for the

Respondents’ position. Justice Décary stated that the CEOC is generally limited “to ensuring that,

on the face of the documents submitted to him, … the conditions required by the Act are met” and is

not “to go beyond what is given”. In similar vein, he described (at para. 19) the CEOC’s function as

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“essentially the mechanical application of the very detailed meticulously drafted legislative

provisions that leave almost nothing to chance …”.

[71] However, context is as important to understanding reasons for judgment as it is to

interpreting legislation and, in our view, two significant contextual factors make Stevens

inapplicable to the present case.

[72] First, Stevens arose from a dispute about the registration of the Conservative Party of

Canada following the merger of the Progressive Conservative Party and the Canadian Reform

Conservative Alliance. The ultimate question for the Court in Stevens was whether the CEOC had

duly authorized the merger of the parties under subsection 401(1), which provides as follows.

401. (1) The Chief Electoral Officer

shall amend the registry of parties by

replacing the names of the merging

parties with the name of the merged

party if

(a) the application for the merger was

not made in the period referred to in

subsection 400(1); and

(b) the Chief Electoral Officer is

satisfied that

(i) the merged party is eligible for

registration as a political party

under this Act, and

(ii) the merging parties have

discharged their obligations under

this Act, including their obligations

to report on their financial

transactions and their election

expenses and to maintain valid and

up-to-date information concerning

401. (1) Le directeur général des

élections substitue, dans le registre des

partis, le nom du parti issu de la fusion

à ceux des partis fusionnants :

a) si la demande de fusion n’est pas

présentée pendant la période

mentionnée au paragraphe 400(1);

b) s’il est convaincu que, à la fois :

(i) le parti issu de la fusion est

admissible à l’enregistrement sous

le régime de la présente loi,

(ii) les partis fusionnants ont

assumé les obligations que leur

impose la présente loi, notamment

en matière de reddition de compte

sur leurs opérations financières et

sur leurs dépenses électorales et de

mise à jour des renseignements qui

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their registration. concernent leur enregistrement.

[73] In order to answer the question raised, Justice Décary wrote (at para. 2):

… 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.

[74] Despite the fact that section 401 makes the CEOC’s duty to amend the registry of parties

conditional on his being satisfied of certain matters, the CEOC’s role as “the guardian of

democracy” (at para. 19) would likely be endangered, and “the most absolute political neutrality”

(at para. 21) of the office threatened, if the CEOC could go beyond the documents provided in

connection with a political party’s merger with another and the resulting creation of a new party.

Party mergers are apt to raise highly contentious, partisan issues best resolved in the political

process and in the court of public opinion. To require the CEOC to probe into internal party disputes

of this kind could well drag the CEOC into an arena where his or her neutrality is brought into

question, and the office thereby endangered.

[75] In our view, however, to interpret the CEOC’s powers as including the power to look

beyond the documents submitted by candidates and registered political parties in their electoral

campaign returns cannot plausibly be said to compromise democracy. Questioning the propriety of

an election expense is a routine matter, and is very different from probing the often highly

politically charged circumstances of the merger of political parties.

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[76] Second, the provisions of the Act dealing with the registration of a party following a merger

contain nothing equivalent to subsections 451(2.1) and (2.2), which, it will be recalled, require the

provision of documentary evidence to support the statement of election expenses contained in an

electoral campaign return, and authorize the CEOC to require additional documents.

(vi) Conclusion

[77] The Respondents’ interpretation of subsection 465(1) would weaken compliance with the

limits set by Parliament on the amount of money that candidates may spend on their election and

can recover by way of reimbursement from public funds. Abuses could well proliferate, and the

statutory objective of promoting a healthy democracy through levelling the electoral playing field

undermined.

[78] Consequently, when interpreted by reference to its text and context, and the statutory

objectives, subsection 465(1) authorizes the CEOC to satisfy himself that the documents submitted

evidence the election expenses claimed before issuing the certificate permitting the Receiver

General to reimburse them. In order to satisfy the statutory reporting requirements it is not enough

for a candidate to submit the documents described in the Act; the documents must also demonstrate

to the CEOC’s satisfaction that the costs allegedly incurred qualified as election expenses for the

purpose of the Act. The requirements imposed by the Act to report election expenses to the CEOC

are thus substantive and not merely formal in nature.

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Issue 2: Was there sufficient material before the CEOC on which he

could reasonably decline to state that he was satisfied that the

Respondents had incurred a portion of the cost of the RMB

advertisements which they claimed as election expenses?

(i) Standard of review

[79] On the basis of our interpretation of the Act, the CEOC’s duty to provide a certificate is

conditional upon his being satisfied that candidates have submitted the documents required and that

the costs claimed in their electoral campaign returns as reimbursable election expenses were duly

incurred in accordance with the Act. The question for the Court in this appeal is whether the CEOC

committed a reviewable error when, on the basis of the documentary evidence before him, he

refused to state that he was satisfied that the Respondents had incurred the costs of the RMB

advertisements that they claimed as election expenses. We emphasize that it was for the CEOC, not

the Court, to be satisfied on this matter.

[80] Whether the CEOC is “satisfied” has a subjective aspect. However, if the CEOC states that

he is not satisfied that a candidate has incurred a cost claimed as an election expense, the decision

must be reasonable in light of the material available to him when he made the decision. Whether

that material was sufficient in this case to support his conclusion is a question of inextricably mixed

fact and law. We see no basis for departing from the presumption that reasonableness is the standard

of review applicable to such questions: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.

190 at para. 53.

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[81] It was common ground between the parties to this appeal that, in determining whether the

CEOC’s decision is reasonable, we must consider whether the reasons given in his letter to the

Respondents, dated April 23, 2007, and in his letter to the Interim Executive Director of the Party,

Ms Kehoe, dated April 25, 2007, provide a transparent and intelligible justification for his decision.

In addition, we must determine whether the decision itself is within the range of possible outcomes

which are rationally defensible on the basis of the law and the material before the CEOC.

(ii) Judicial review record

[82] Judicial reviews of administrative decisions are normally conducted on the basis of the

record before the decision-maker. This case is no exception, despite the informal nature of the

administrative process by which the CEOC made his decision, and the absence of a formal record of

the evidence on which he relied.

[83] In these circumstances, the Court may rely on the affidavits sworn for the purpose of the

application for judicial review as evidence of the material available to the CEOC when he made his

decision, and to provide some relevant factual background. However, in determining whether the

CEOC’s decision was reasonable, the Court may not take into account material that came into

existence after April 25, 2007, or was otherwise not available to him when he declined to state that

he was satisfied that the cost of the RMB could legitimately be claimed as election expenses of the

candidates.

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(iii) Administrative record: material before the CEOC

[84] There was no significant disagreement between the parties about the material that was

available to the CEOC when he made the decision under review. His letter of April 23, 2007, to the

Respondents stated that he was not satisfied that the documents submitted established the claimed

election expense,

[h]aving reviewed the supporting documents evidencing this expense and taking into

account the circumstances in which the amount in question was invoiced to and paid

for by the campaign.

[85] The heart of the dispute is whether all the circumstances and the supporting documents

before the CEOC were sufficient to provide a reasonable basis for his refusal to state that he was

satisfied that the Respondents had incurred the cost of the RMB advertising. To the extent that it is

relevant, the Respondents, as claimants for a statutory benefit, namely the certificate needed for the

reimbursement of election expenses, had the burden of satisfying the CEOC that their claim was

justified.

[86] The following are the principal items of documentary evidence, arranged by topic, that were

available to the CEOC when he wrote the decision letters of April 23 and 25, 2007, and which the

Court may therefore consider in determining the reasonableness of his decision.

[87] The in-and-out transactions

a. administrative instructions from Party officials sent by e-mail to candidates on the

mechanics of the in-and-out transactions (Appeal Book, vol. VII, pp. 1922-25)

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1. The fund will invoice the official agent for the candidate for the media buy

and forward by email/fax a copy of the invoice to the official agent. To be

done by Ottawa office.

2. Simultaneously, the official agent will complete the bank wire instruction

template, sign the form and fax the completed and signed form to Hanh

Tran in the Finance department of the Conservative Fund of Canada at [we

have deleted the number]. The fund will insert the invoice # and amount, if

not already done by the official agent, and fax the bank wire instructions to

the fax number of the bank where the official agent maintains the

candidate’s bank account. To be done by official agent.

3. The fund will prepare a bank wire transferring money from the Fund’s

bank account into the Candidate’s bank account from the information

received in Step 2. To be done by Ottawa office.

4. Hanh will transfer the monies into the candidate’s account on a specific day

and will then fax the bank wire to the candidate’s bank to have them

transfer the monies into the fund’s bank account to pay the invoice on the

same day. To be done by Ottawa office.

Note that no monies will be transferred from the Fund to the

Candidate to pay for this invoice until the Fund has received a signed

and completed bank wire instruction form from the official agent.

Also note that the payment must be made to the supplier on Jan. 2,

2006, therefore it is necessary to have this exchange of monies

completed by that date as well.

[bold in original]

One of the e-mails to a candidate (Appeal Book, vol. VII, p. 1924) further explained:

The invoice for each candidate will be in the same amount as

indicated in my preceding email. The transfer will be in the same

amount. Therefore, as agreed there will be no net cost or cash flow

impact. The paid invoice can be included in paid election expenses

subject to the 60% rebate that the candidate gets to keep.

b. summaries of the logs kept by Elections Canada auditors of their contacts with

candidates and their official agents

(i) Candidate Contact Log Summary for Elizabeth M. Pagtakhan (district of

Vancouver East), October 20, 2006 (Appeal Book, vol. VI, p. 1778)

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Elections Canada auditor Rani Naoufal asked if the candidate’s official agent could

provide more information about an invoice for $29,999.70 from the Conservative Party that

was recorded in the candidate’s return. In response, the official agent told the auditor:

I think we contributed to TV national advertising. There was no way

we can spend our limit so we were asked by the party if we can help

contribute.

(ii) Candidate Contact Log Summary for Jean Landry (district of Richmond-

Arthabaska), December 4, 2006 (Appeal Book, vol. VI, p. 1784)

Jean Landry is recorded as having called about the letter he received asking for more

details of the $26,000 advertising media buy costs, and to have said that neither he nor his

official agent had the required documents, since everything was done by the Party’s HQ. He

mentioned twice that this was purely an “in-and-out” transaction; that he got the transfer in

at 11:00 am and at 11:45 a.m. the transfer out took place.

(iii) Candidate Contact Log Summary for Kenneth Brownridge, official agent for

Dick Harris (district of Cariboo-Prince George, January 16, 2007) (Appeal

Book, vol. VI, p. 1794)

The log indicates that Mr Harris stated that the campaign did not pay for the media

buy because it was national advertising. He understood that all ridings were invoiced for it,

but he did not understand why details were needed for an in-and-out transaction related to

national advertising.

(c) invoices

(i) Invoices, dated December 23, 2005, from the Party to the campaigns of Dan

Mailer (Appeal Book, vol. V, p. 1597) and Robert Campbell (Appeal Book, vol. VI,

p. 1804)

Each invoice was addressed to the candidates’ campaigns, for the attention of the

Respondents. Each invoice stated: “2005-2006 candidate share of media advertisement. Candidate

share of media advertisement purchased as agreed to for the 2005-2006 election.” The amount of

the invoice for the Robert Campbell campaign “before taxes” was $3,947.07, and for the Dan

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Mailer campaign, “before taxes” was $9,999.15. No taxes were added. The amounts were payable

to the Conservative Fund Canada.

(ii) Invoice from the Party’s advertising agent, RMI, dated January 1, 2006, to the

districts of London-Fanshawe (Dan Mailer) (Appeal Book, vol. IX, p. 2752) and

Dartmouth-Cole Harbour (Robert Campbell) (Appeal Book, vol. VI, p. 1817),

redacted from a global invoice listing all the districts participating in the “regional

media buy” (Appeal Book, vol. VIII, p. 2632)

The invoices are headed, “The Official Agents for Conservative Party Candidates”, and

addressed to “#1720-130 Albert Street, Ottawa, attn. Susan Kehoe.” This is the address of the

Conservative Party of Canada. Opposite “Dartmouth/Cole Harbour” is the printed figure 3,688.85,

and in handwriting “+GST = 3,947.07”, the amount of the invoice received by the campaign from

the Party.

(d) evidence of payment of invoices

(i) Payment by Mr Callaghan (noted on wire transfer instructions) (Appeal Book,

vol. VI, p. 1805);

(ii) Payment by Mr Pallett (noted on invoice from Party) (Appeal Book, vol. V,

p. 1597).

[88] Regional media buy program

(a) letter, dated January 15, 2007, from Michael Donison (Executive Director,

Conservative Party of Canada) to Manon Hamel (Acting Director, Political Finance and

Audit, Elections Canada), “Re: Media Buy and Associated Production costs for the

Candidates’ Media Buy Program”, sent in response to a request for a copy of the contract

between RMI, the media agent, and either the Party or the candidates participating in the

RMB (Appeal Book, vol. VI, pp. 1830-31)

[…] (T)here is no single contractual document between the

registered party or the candidates and the supplier that speaks to the

arrangements of the regional media buy … However, in the interest

of fully co-operating with the EC and the official agents to get the

inquiries satisfied, I am providing you a letter from Mr. Andrew

Kumpf, Vice President of Retail Media [RMI] that details the

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contractual obligations between it and the Conservative Party and the

participating candidates for the media buys for this election. (at p.

1830)

(b) letter, dated January 15, 2007, from Andrew Kumpf (an officer of RMI) to Manon

Hamel, “Re: Relationship between RMI and the Conservative Party of Canada”(Appeal

Book, vol. VI, pp. 1832)

The letter made the following points:

• RMI was the supplier/agency of record for ten media buys made by the Party and the official

agents for the participating candidates and that “we mutually entered into an agreement to

provide media buys”;

• Advertising buys for the national party were segregated from advertising buys for participating

candidates. Retail Media was advised of the Conservative candidates who were interested in

participating in additional regional media buys;

• Appropriate invoices reflecting goods and services rendered by RMI were separately issued to

participating candidates and to the Party;

• Appropriate regional markets were identified for all participating candidates and specific media

buys purchased in those markets; and

• Appropriate tag lines were used in all advertisements identifying on whose behalf the

advertisements were authorized.

(c) package of documents, dated December 2005, sent by the Party to participating

candidates (Appeal Book, vol. VI, pp. 1803-28)

• A copy of the time schedule for both the television and radio advertisements (where applicable).

This document, prepared by RMI and forwarded to the Conservative Party, detailed the targeted

market, the date and time of the advertisements, and the advertisements placed;

• Reference material from RMI indicating candidates whose ridings benefited from advertising in

a specific market;

• A copy of the invoice from RMI for the candidate’s campaign media buy;

• Bank wire instructions from each campaign in which the official agent for the candidate

authorized the payment of the Fund invoice received by the candidate; and,

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• A copy of the advertisement obtained from RMI, together with the tag line used.

(d) letter from Susan J. Kehoe (Interim Executive Director, Conservative Party of

Canada) to Marc Mayrand (CEOC), dated April 11, 2007 (Appeal Book, vol. VII, p.

1929)

A review of the documentation indicates that the organization of the

RMBs took place during the weeks of December 6 and 12, 2005. At

that time, i.e., at the outset of the election, the individual campaign

commitment levels were determined. The final schedule of ads to be

covered as part of the RMBs was provided by the media supplier by

Monday, December 19, 2005. In other words, the RMB was entirely

structured at the outset of the campaign as supported by

documentation submitted – it was certainly not a retroactive

allocation of costs.

[89] Cost allocation of RMB

(a) allocation of costs spreadsheet (Appeal Book, vol. VI, pp. 1834-36)

This was prepared by Elections Canada officials from the information provided by the

official agents. It gave examples of candidates in the same region who participated in the media buy

program, but claimed significantly different amounts of expenses for advertising that was broadcast

the same number of times in each of their electoral districts. No supporting documentation was

provided to the CEOC to explain these discrepancies.

(b) letter from Ann O’Grady (Chief Financial Officer, Conservative Fund Canada) to

Manon Hamel, dated March 6, 2007 (Appeal Book, vol. VII, pp. 1917-18), which stated

(at p. 1917):

There can be no precise, mathematical linkage between the broadcast

‘footprint’ of an ad and the allocation of costs to the participating

local campaigns. Suffice it to say, as your own figures show, the

participating local campaigns each paid a meaningful (i.e., more than

nominal) portion of the costs of the ads, and all participating

campaigns had at least some meaningful broadcast of the ads in their

districts.

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(c) letter from Susan J. Kehoe to Marc Mayrand, dated April 11, 2007 (Appeal Book, vol.

VII, pp. 1927-30)

This letter explains the differences in the financial commitments among similarly situated

campaigns, and states (at p. 1929):

… the basis of allocation used was essentially the candidate’s relative

commitment to the group buy. Simply stated, the greater the overall

commitment, the larger the possible ad buy, the greater the overall

benefit.

[90] Contextual factors The following factors were also known to the CEOC at the time that

he made the decision under review.

(a) Party spending limit

The Party was unable to purchase much more advertising when it contacted candidates’

campaigns to ask whether they were willing to make a commitment to contribute to the RMB,

because it was close to its statutory spending limit: affidavit of Janice Vézina, Associate Deputy

CEOC, dated January 14, 2008 (Appeal Book, vol. V, p. 1449).

(b) scale of the in-and-out transactions

68 candidates across Canada agreed to participate in the RMB, although one pulled out at

the last minute. He did not include the cost of the RMB as election expenses in his electoral

campaign return; however, the Party included it in its election expenses. The total cost of the RMB

for the participating Conservative candidates’ campaigns was approximately $1.2 million; the

production costs were $121,000: letter from Ann O’Grady to Manon Hamel, dated Dec. 15, 2006

(Appeal Book, vol. VI, pp. 1800-01).

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(c) content of advertisements

The content of the advertising was national and did not focus on the candidates who claimed

their share of the cost as an election expense, or on local issues. The advertisements did, however,

carry tag lines identifying them with the local candidates.

(iv) Analysis

[91] In our opinion, the information detailed above amply supports the reasonableness of the

CEOC’s refusal to state that he was satisfied that the cost of the RMB had been incurred by the

candidates in accordance with the Act. Whether the evidence might have enabled the CEOC

reasonably to conclude that the costs had been duly incurred by the candidates is irrelevant in this

application for judicial review of the exercise of the power entrusted by Parliament to him.

[92] As a preliminary point, we are of the view that, in determining whether he was satisfied that

the election expenses claimed by a particular candidate for the RMB advertising met the statutory

criteria for reimbursement, the CEOC was not legally required to confine his consideration to the

material relating solely to that candidate. Since each candidate was participating in a scheme that

was devised and orchestrated by the Party, it was reasonable for the CEOC to take into

consideration the totality of the material before him relating to the scheme, and to determine the

weight to be given to the different items in respect of particular candidates. Indeed, given the

centralized nature of the scheme, it would have been unreasonable for the CEOC not to have taken

into consideration the broader context, and to have confined himself to material relating solely to the

particular candidate whose election expenses were under consideration.

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[93] A key concern of the CEOC was the failure of the candidates to submit documentary

evidence of the existence or terms of a contract with RMI under which the advertisements were

purchased by the candidates directly, or by the Party as the agent of the participating candidates.

Indeed, the Party conceded that no contractual document between RMI and the candidates or the

Party existed. This is particularly significant because, except for the candidate and the official agent,

no one may incur an expense on behalf of a campaign without the written consent of the official

agent. It was not clear from the material before the CEOC whether the Party was supposed to have

acted as the candidates’ agent in purchasing the advertising, or the candidates contracted directly

with RMI.

[94] The other material available to the CEO was not sufficient to satisfy him that, despite the

absence of documentary evidence of the existence of a contract, the election expenses claimed by

the Respondents in respect of the RMB represented costs that they had actually incurred to purchase

the advertising.

[95] The Respondents rely on the invoices issued by the Party and RMI to the candidates, and the

subsequent payments made, through the in-and-out transactions, by the candidates to the Party,

which had already paid RMI for the advertisements. They say that these provide clear evidence that

the candidates had incurred the cost of the RMB advertising in their electoral districts. We do not

agree.

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[96] While it may normally be inferred from the payment of an invoice that the payment was

made to discharge a legal obligation when parties are operating at arm’s length, this was not the

situation here. The interests of the Party and the candidates participating in the in-and-out

transactions were closely aligned.

[97] Further, the invoices themselves were not unequivocal: they do not state that they are for

the cost of advertising purchased by or on behalf of the candidates. The invoice from the Party is

headed “Candidate share of media advertisement purchased as agreed to for the 2005-2006

election”, while the RMI invoice refers simply to “January 2006 Media Expenditure”. RMI

produced a single invoice for candidates outside Québec, listing on one page all the participating

electoral districts, with the amount owing opposite each. Each candidate received a copy of this

page with all this information removed, except for the name of his or her district and the amount

owing.

[98] It is also relevant in this regard that the nature of the “commitments” previously made by the

candidates to contribute to the advertisements is unclear. The evidence is at least as consistent with a

promise to contribute to the cost incurred by the Party in engaging RMI to arrange for the

broadcasting of the advertisements, as with an agreement by the participating candidates’ campaigns

to purchase advertisements from RMI directly or through the agency of the Party.

[99] Similarly, the fact that some candidates and official agents had little understanding of the

scheme was also reasonably regarded by the CEOC as casting doubt on whether they had agreed to

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purchase advertising, rather than to contribute all or some of the unused portion of their spending

limits to the Party’s own advertising costs.

[100] Also relevant to the CEOC’s conclusion was the fact that the allocation of the costs of the

advertisements bore no relation to the value of the benefit received by individual candidates from

them, but was based on how much room they had in their spending limit. Amounts of contributions

were adjusted to ensure that spending limits were not exceeded.

[101] Further, production costs were allocated only to candidates in Québec. Interestingly,

production costs seem to have been removed from the amount invoiced to one candidate in Québec,

Mr Bernier, in order to keep his allotted share of the advertising cost within his spending limit.

[102] The CEOC could reasonably regard the bases on which the costs of the RMB were allocated

as indicative more of a cost-shifting arrangement than an agreement by the participating candidates

to purchase advertisements from RMI, either directly or through the Party.

[103] Two contextual factors also support the reasonableness of the CEOC’s decision. First, the

advertisements themselves were national in nature, had no connection with local issues, and did not

feature the candidates. The tag line stating that they had been authorized by the official agent of the

participating candidate was the only indication that the viewer or listener would have that the

advertisement was connected to the local campaign. Second, when the Party asked candidates to

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participate in the RMB, it was close to its permitted spending limit, a consideration that would make

attractive a scheme to shift to candidates the cost of additional advertising with national themes.

[104] Hence, on the basis of this material, it was reasonable for the CEOC to decline to state that

the candidates’ payments in response to the invoices satisfied him that they were thereby

discharging a liability to pay for the advertisements broadcast in their districts.

[105] The Respondents relied heavily on a letter written by Mr Kumpf of RMI to Ms Hamel of

Elections Canada, dated January 15, 2007, confirming that RMI was the “supplier/agency of record”

for the media buys by the Party and the official agents for participating Conservative candidates and

that “we mutually entered into an agreement to provide media buys.” This letter suggests that the

candidates were parties to an agreement to purchase and that by paying the invoices candidates were

thereby discharging an obligation to purchase advertising from RMI.

[106] However, Mr Kumpf’s letter was written a year after the arrangements had been made for

the RMB. By this time, the CEOC had already indicated his concerns about the propriety of the

election expenses claimed by candidates with respect to the RMB. The timing of the letter may

reasonably have been regarded by the CEOC as reducing its probative value. In light of this and the

other material before him, this letter does not, in our view, render the CEOC’s decision

unreasonable. The question is whether there was material before the CEOC on which he could

reasonably have based his decision, not whether he made the correct or even the better decision.

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Conclusions

[107] The CEOC was authorized to satisfy himself that election expenses claimed by the

Respondents represented costs that they had incurred in accordance with the Act. His decision not to

include in the certificate as election expenses the payments made to the Party by the Respondents

with respect to the RMB involved a question of mixed fact and law, and is reviewable on a standard

of reasonableness.

[108] The CEOC’s decision was reasonable because his brief reasons provide a transparent and

intelligible justification for his refusal to state that he was satisfied that the Respondents had

incurred the costs of the RMB. In addition, the CEOC’s decision falls within the range of possible

outcomes and is rationally defensible on the basis of both the law and the material before him.

[109] For these reasons, the CEOC’s appeal will be allowed with costs, and the Respondents’

application for judicial review dismissed.

III RESPONDENTS’ CROSS-APPEAL

Introduction

[110] The Respondent Callaghan's cross-appeal relates to the allocation of expenses among

campaigns that agreed to participate jointly in a program of television or radio advertisements to be

broadcast in each campaign’s riding. The CEOC found a number of situations in which candidates

participating in a pooled media buy claimed significantly different amounts.

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[111] The Respondent Callaghan participated in such a pooled media buy program. In the case of

the pooled television advertisements, all participating candidates were identified in the tag line of

the advertisements. In the case of the pooled radio advertisements, the advertisements were rotated

so that each participating candidate was mentioned an equal number of times. However, the

participating campaigns claimed different amounts as the expense incurred as a result of their

participation in the media buy. For example, in the case of the pooled television advertisements

Mr. Callaghan’s candidate participated in, the same advertisement ran in 7 ridings. Mr Callaghan

reported the expense in the amount of $1,092.65, while another participant reported an expense of

$3,277.95 and yet another candidate reported an expense of $10,989.33 (Appeal Book, vol. IX,

p. 2737).

[112] The Party confirmed to the CEOC that there was “no precise mathematical linkage between

the broadcast footprint of an ad and the allocation of costs to the participating local campaign”

(Appeal Book, vol. I, p. 295). The amount allocated to a candidate was based upon the amount the

candidate was willing and able to contribute. Willingness and ability reflected the amount available

under each participating candidate’s spending limit.

Statutory Provisions

[113] The following provisions of the Act are relevant to the issues raised on the cross-appeal

relating to non-monetary contributions and the requirement to report election expenses at their

commercial value.

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[114] To maintain the integrity of spending limits, the term “election expense” is defined to

include non-monetary contributions (see section 407 of the Act, quoted at paragraph 42 above). A

“non-monetary contribution” is defined in section 2 of the Act to mean:

“non-monetary contribution” means the

commercial value of a service, other

than volunteer labour, or of property or

of the use of property or money to the

extent that they are provided without

charge or at less than their commercial

value.

« contribution non monétaire » La

valeur commerciale d’un service, sauf

d’un travail bénévole, ou de biens ou de

l’usage de biens ou d’argent, s’ils sont

fournis sans frais ou à un prix inférieur

à leur valeur commerciale.

[115] As explained at paragraph 17 above, the commercial value of non-monetary contributions

must be reported in a candidate's electoral campaign return and is included when calculating a

candidate’s spending limit. “Commercial value” is defined in section 2 of the Act in the following

way:

“commercial value”, in relation to

property or a service, means the

lowest amount charged at the time that

it was provided for the same kind and

quantity of property or service or for

the same usage of property or money,

by

(a) the person who provided it, if the

person is in the business of providing

that property or service; or

(b) another person who provides that

property or service on a commercial

basis in the area where it was provided,

if the person who provided the property

or service is not in that business.

« valeur commerciale » En ce qui

concerne la fourniture de biens ou de

services ou l’usage de biens ou

d’argent, le prix le plus bas exigé pour

une même quantité de biens ou de

services de la même nature ou pour le

même usage de biens ou d’argent, au

moment de leur fourniture, par :

a) leur fournisseur, dans le cas où il

exploite une entreprise qui les fournit;

b) une autre personne qui les fournit sur

une échelle commerciale dans la région

où ils ont été fournis, dans le cas où

leur fournisseur n’exploite pas une telle

entreprise.

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Decision of the Federal Court

[116] The Judge agreed with the CEOC that it was not appropriate to allocate within a given

“pool” the costs of the RMB advertising by reference to the amount that participating candidates

were willing and able to contribute as their share of the cost on the basis of the room left in their

spending limits. To satisfy the requirement of paragraph 451(2)(i) of the Act that candidates state

the commercial value of goods and services provided to them, there had to be a relationship between

the benefit of the goods and services supplied, and the amount paid.

[117] In the case of the Respondent Pallett, his candidate’s campaign was the only campaign to

participate in the RMB in its geographic area. Thus, the Judge found that the amount claimed by

Mr Pallett corresponded to the commercial value of the advertisements that ran in his riding.

[118] In the case of the Respondent Callaghan, the Judge found the unequal allocation of the

broadcasting expenses among the various campaigns to be illogical and arbitrary. The Judge held

that candidates in the pool benefited equally from the advertisements, because the advertisements

were broadcast in each district an equal number of times. Consequently, it was rational that the cost

should be divided equally among the participating candidates. Candidates who had contributed less

than the amount of an equal share would have to declare as part of their election expenses a nonmonetary

contribution from the Party in the amount of their equal share of the cost, less the amount

that they had actually contributed.

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[119] This conclusion flowed from the fact that “non-monetary contributions” fall within the

definition of “election expenses”. Hence, they must be included in the electoral campaign returns,

and their commercial value counted in the calculation of whether a candidate exceeded her or his

permitted spending limit. However, because non-monetary contributions to a candidate are not costs

incurred by the candidate, they are not reimbursed by the Receiver General.

[120] For the Respondent Callaghan, this meant that his RMB expense had been reported in an

amount below its commercial value. The Judge did not consider this to constitute a bar to the

certification of the expense under section 465 of the Act because only the amount actually paid

would lead to any reimbursement. However, with respect to the candidate’s electoral campaign

return the Judge found that the “fair market value of the deemed election expenses” was the sum of

the amounts paid by the campaign and a non-monetary contribution made by the Party. The amount

of the non-monetary contribution was the difference between a reasonable share of the advertising

costs and the amount paid by the campaign. The Judge calculated (at para. 238) the amount of the

non-monetary contribution that Mr Callaghan had to declare in his electoral campaign return to be

$2,894.51.

[121] The Respondent Callaghan cross-appeals from these findings.

Analysis

[122] We have found that it was reasonable for the CEOC to decline to state that he was satisfied

that the Respondents had incurred the RMB costs that were claimed as election expenses. The

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decision of the Federal Court is to be set aside and the application for judicial review dismissed. It

follows from this that the substratum of the cross-appeal has been removed. That said, the crossappeal

was fully argued before us and in our respectful view the Judge erred in law by proceeding to

exercise the powers of the CEOC to audit the Respondent Callaghan's electoral campaign return and

to determine the commercial value of his participation in the RMB. We reach this conclusion for the

following reasons.

[123] We begin by reviewing the process followed by the CEOC. By letter dated April 23, 2007,

the CEOC advised the Respondent Callaghan that he was not satisfied that “the documentation

submitted establishes the claimed election expense” relating to the RMB. The CEOC went on to

advise that this expense would be excluded from the amount the CEOC would certify to the

Receiver General of Canada, but the decision to exclude the expense “could be reassessed if you

provide additional supporting documentation that satisfies me that the claimed expense was incurred

by the campaign.” The CEOC expanded on his concerns in his letter of April 25, 2007 to the Party

where he observed the absence of correlation between the various campaigns’ share of the costs for

the advertisements and their commercial value with respect to those campaigns. He went on to

recognize that there may be different ways of assessing the commercial value, but the commercial

value must be reasonable and not based solely on each campaign’s willingness and ability to pay a

particular amount up to its permitted election expenses limit. However, as the CEOC was not

satisfied that the expense was incurred by the campaign, he made no decision as to how the

expense, if incurred by the campaign, should be allocated amongst the participating campaigns.

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[124] It is, we believe, a matter of settled law that on an application for judicial review the Court

normally has no power to substitute its view of the facts for that of the decision-maker, or to make

independent findings of fact where the decision-maker made none. In Rafuse v. Canada (Pension

Appeals Board), 2002 FCA 31, 286 N.R. 385, this Court explained this principle in the following

terms:

12 […] The determination of factual questions is within the exclusive

jurisdiction of the Board and at the core of its expertise. In this case, because it

misdirected itself in law on the test for deciding leave applications, the Board is

yet to make the essentially factual determination required of it.

13 On an application for judicial review, the role of the Court with respect to

a tribunal’s findings of fact is strictly circumscribed. In the absence of an error of

law in a tribunal’s fact-finding process, or a breach of the duty of fairness, the

Court may only quash a decision of a federal tribunal for factual error if the

finding was perverse or capricious or made without regard to the material before

the tribunal: Federal Court Act, paragraph 18.1(4)(d). Hence, if, as a result of an

error of law, a tribunal has omitted to make a relevant finding of fact, including a

factual inference, the matter should normally be returned to the tribunal to enable

it to complete its work. Accordingly, in our opinion, the Judge would have erred

in law if, having set aside the decision of the Board, she had remitted the matter

with a direction that the Board grant Mr. Rafuse leave to appeal.

14 While the directions that the Court may issue when setting aside a

tribunal’s decision include directions in the nature of a directed verdict, this is an

exceptional power that should be exercised only in the clearest of circumstances:

Xie, supra, at paragraph 18. Such will rarely be the case when the issue in dispute

is essentially factual in nature (Ali v. Canada (Minister of Employment and

Immigration), [1994] 3 F.C. 73 (T.D.)), particularly when, as here, the tribunal

has not made the relevant finding. [emphasis added]

[125] The question whether expenses have been reasonably allocated is essentially one of fact.

Thus, since the CEOC had made no decision with respect to the reasonable allocation of pooled

advertising expenses, the Federal Court erred in law by making its own calculation of the

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commercial value of an advertising expense. Had the Court not erred in allowing the application for

judicial review, this issue should have been returned to the CEOC for his determination.

[126] In our further view, it is no answer that the relief sought in the Federal Court was

mandamus. Again, it is settled law that mandamus cannot be sought to compel the exercise of

discretion in a particular way. Put another way, while mandamus may compel a decision-maker to

consider a matter, it “does not dictate the result of such a process.” See Martinoff v. Canada,

[1994] 2 F.C. 33 at para. 10 (C.A.), and the authorities there cited. In our context, the Federal Court

could require the CEOC to consider according to law the issue of the commercial value of the

Respondent Callaghan’s RMB advertising expense. It could not calculate the value itself.

[127] The Judge’s error in making his own calculation of the commercial value of the

advertisements is an independent ground for allowing the cross-appeal of the Respondent

Callaghan.

[128] On the point of commercial value, the Respondent Callaghan argued forcefully that the

notion of commercial value found in the Act applies only when goods or services are provided at a

cost lower than the market value of the goods or services. The concept of commercial value is said

not to extend to the allocation of election expenses pooled among several candidates, particularly in

the context of television and radio advertisements where a broadcast area is unlikely to be

geographically coextensive with the boundaries of a riding. Broadcast advertising is said to be

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qualitatively different from other goods or services because advertisements broadcast in one riding

may be viewed or listened to by constituents in neighbouring ridings.

[129] In our view, there are no hard and fast rules applicable to the proper allocation of pooled

election expenses. Indeed, this was recognized by the CEOC in an example cited by the

Respondent. In that case, where pooled advertising was placed in Chinese language newspapers in

the Vancouver area during the 2005-2006 general election, expenses were allocated among

campaigns based upon the level of Chinese language readership in each riding. This demonstrates

that, given an appropriate basis in the relevant facts, pooled election expenses may carry different

values in different ridings so that an unequal sharing of costs is appropriate.

[130] As the underlying application for judicial review will be dismissed, the issues arising from

the audit of the Respondents’ returns, and more particularly the decision not to certify their RMB

expenses, remains before the CEOC because he has not yet required the Respondents to file

corrected electoral campaign returns (as the CEOC may require under subsection 457(2) of the Act).

It remains open, therefore, for the Respondent Callaghan to provide further information or

submissions to the CEOC about the reasonableness of the amount he reported for his candidate’s

participation in the RMB. We agree, however, with the Judge and the CEOC that the amount

reported for a candidate’s share of a pooled advertising expense cannot be arbitrary, or based solely

upon the available room under each candidate’s spending limit, but must be reasonably related to

the value of the benefits received.

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Conclusion

[131] For these reasons, the cross-appeal will be allowed. As the substratum of the cross-appeal

was removed by our disposition of the appeal, no costs will be awarded on the cross-appeal.

“John M. Evans”

J.A.

“Eleanor R. Dawson”

J.A.

“Johanne Trudel”

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-63-10

(APPEAL FROM A DECISION OF THE HONOURABLE LUC MARTINEAU OF THE

FEDERAL COURT DATED JANUARY 18, 2010, NO. T-838-07)

STYLE OF CAUSE: The Chief Electoral Officer of

Canada and L.G. (Gerry)

Callaghan, in his capacity as

official agent for Robert

Campbell and David Pallett, in

his capacity as official agent for

Dan Mailer

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: November 23-24, 2010

REASONS FOR JUDGMENT BY: EVANS, DAWSON, TRUDEL

JJ.A.

DATED: February 28, 2011

APPEARANCES:

Barbara A. McIsaac, Q.C. FOR THE APPELLANT

Stephen Decary

Stephen Hamilton

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Borden Ladner Gervais LLP

Ottawa, Ontario

FOR THE APPELLANT

Stikeman Elliott LLP

Montreal, Quebec

FOR THE RESPONDENT

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Tuesday, March 1, 2011

Demand a public inquiry now!.

“It is imperative that there be a full public inquiry into what happened during the G20 in order to get at the truth and ensure it doesn’t happen again. 

The maintenance of public confidence in law enforcement demands nothing less.”

The Canadian Civil Liberties Association and the National Union of Public and General Employees are pleased to present this new report, based on the Breach of the Peace – G20 Summit: Accountability in Policing and Governance public hearings the two organizations held in Toronto and Montreal in November 2010.
Based on the issues identified over the course of the public hearings, the report offers a comprehensive overview of the major civil liberties violations that took place during the G20 Summit, and puts forward a series of recommendations aimed at protecting constitutional rights in future public order policing operations.
Download the Report - Breach of the Peace
CCLA invites you to download and read this new report. We look forward to your comments, questions and feedback.
Eight months after the events of the G20, there are a number of ongoing inquiries that are seeking to shed light on what happened. However, none of these investigations have a broad enough mandate to look at all the aspects of policing and public safety and their interplay.
CCLA and NUPGE continue to believe that only a federal, public inquiry can deliver the answers that Canadians deserve.
We ask you to take a stand today, and to send the message below to Prime Minister Stephen Harper and/or Ontario Premier Dalton McGuinty to demand a G20 Inquiry Now!
Feel free to copy/paste the text and compose your own email, or send a letter.
The Right Honourable Stephen Harper
Office of the Prime Minister
80 Wellington Street
Ottawa, ON K1A 0A2
Fax: 613-941-6900
E-mail: pm@pm.gc.ca
The Honourable Dalton McGuinty
Premier of Ontario
Legislative Building, Queen’s Park
Toronto, Ontario M7A 1A1
Fax: 416-325-3745
E-mail: dmcguinty.mpp.co@liberal.ola.org
Dear Prime Minister Harper and Premier McGuinty:
RE: Public Inquiry into G20 Summit Security
I am writing to urge the federal and Ontario governments to establish a joint public inquiry into security measures implemented in association with the 2010 G20 Summit in Toronto.
In the days and months following the G20 Summit, it has become clear that widespread violations of Charter rights and civil liberties occurred during the policing of this event, some of which are documented in the Breach of the Peace Public Hearings report recently released by the Canadian Civil Liberties Association and National Union of Public and General Employees. These transgressions have raised many questions which remain unanswered and done significant damage to public confidence in Canada's police services. It is essential that public order policing measures be planned and implemented in a manner that is respectful of Charter rights, including freedom of expression, assembly and association. Unfortunately, security measures during the G20 Summit fell short of this standard.
In a democratic country, such as Canada, the mass arrest of more than 1100 people is an event that must not pass by without proper review and scrutiny. Canadians are entitled to accountability for G20 security excesses and your governments have an essential role to play in providing it. Establishing a comprehensive public inquiry would help address outstanding concerns about G20 security, help restore public confidence in Canadian policing and provide a more respectful framework for future public order policing operations. I implore you to take prompt action to ensure that an inquiry is called.
I would appreciate your attention to this matter.
Sincerely,
[insert your name here]

Demandez une enquête publique sur le G20 maintenant!

« Il est impératif qu'il y ait une enquête publique complète sur ce qui s'est passé lors du G20 afin de parvenir à la vérité, et pour s'assurer que cela ne se reproduise pas. 

Le maintien de la confiance du public dans l'application des lois n’exige rien de moins. »

L'Association canadienne des libertés civiles et le Syndicat national des employées et employés généraux présentent ce rapport final sur les questions de sécurité du G20 sur la base des audiences publiques Troubler la Paix - Sommet du G20 : Imputabilité policière et bonne gouvernance : le maintien de l’ordre public et les libertés civiles, tenues en Novembre 2010 à Toronto et Montréal.
Sur la base des problèmes identifiés au cours des audiences publiques, le rapport offre un aperçu complet des principales violations des libertés civiles qui ont eu lieu pendant le Sommet du G20, et met en avant une série de recommandations destinées à protéger les droits constitutionnels lors du déploiement futur des opérations de maintien de l’ordre public.
Troubler Law Paix
L’ACLC vous invite à télécharger et lire ce nouveau rapport. N'hésitez pas à nous faire part de vos questions, commentaires et idées.
Huit mois après les événements du G20, de nombreuses investigations sont en cours pour essayer de faire lumière sur ce qui s’est passe. Néanmoins, aucune de ces enquêtes n’a un mandat assez large pour examiner toutes les facettes du maintien de l’ordre public pendant le G20.
L’ACLC et SNEGSP continue de penser que seule une enquête fédérale publique complète peut donner aux Canadiens et Canadiennes les réponses qu’ils meritent.
Nous vous demandons de prendre position, et d’envoyer le message ci-dessous au Premier Ministre Stephen Harper et/ou au Premier Ministre de l’Ontario Dalton McGuinty pour demander une Enquête Publique sur le G20 Maintenant!
N'hésitez pas a copier/coller le texte pour composer votre propre courriel, ou pour envoyer une lettre:
The Right Honourable Stephen Harper
Office of the Prime Minister
80 Wellington Street
Ottawa, ON K1A 0A2
Fax: 613-941-6900
E-mail: pm@pm.gc.ca
The Honourable Dalton McGuinty
Premier of Ontario
Legislative Building, Queen’s Park
Toronto, Ontario M7A 1A1
Fax: 416-325-3745
E-mail: dmcguinty.mpp.co@liberal.ola.org

Monday, February 28, 2011

Federal Court of Canada overturns 5 IRB decisions, orders new hearings

OTTAWA — The parallels in the five refugee cases are striking. All feature women seeking to remain in Canada because of well-founded fears for their safety in their home countries.



All had their applications rejected by the Immigration and Refugee Board or officers of Citizenship and Immigration Canada even though, in 1993, Canada became the first country in the world to establish formal guidelines for refugee claims by women facing gender-related persecution.



And in the past month, the Federal Court has overturned all five decisions and ordered new hearings.



Four of the recent cases involve women — two from the Caribbean island of St. Vincent, one from Brazil and one from Mexico — who are victims of spousal abuse. The other is a woman from Guyana who was raped in front of her children during a brutal home invasion.



In only one case was the applicant’s credibility an issue. In the others, the officials either ruled that adequate state protection exists in their home countries or found that deporting them would not cause “unusual, undeserved or disproportionate hardship.”



Three of the cases involved decisions by the IRB’s refugee protection division. The other two were rejections by Citizenship and Immigration officers of applications for permanent-resident status on humanitarian and compassionate grounds, known as H&C applications.



One of the women, 30-year-old Keisha Paul, fled to Canada in 2002 after her partner in St. Vincent beat her so badly she was hospitalized. Her son, now nine, joined his mother four years later.



In 2008, the IRB rejected her refugee claim because it said Paul had not availed herself of state protection in her home country.



Then, about a year ago, an immigration officer rejected her H&C application as well as her pre-removal risk assessment (PRRA) application. The officer adopted the IRB’s findings that state protection in St. Vincent was available and observed that Paul had failed to demonstrate steady employment or financial independence during her eight years in Canada.



Federal Court Justice Richard Boivin overturned the officer’s finding for failing to assess whether the risk to Paul would give rise to unusual, undeserved or disproportionate hardship — the required legal test.



The other St. Vincent woman, Anthea Cato, claimed refugee protection in 2008 after years of abuse by her husband. Cato, who has a three-year-old son, testified that she repeatedly reported the abuse to the island’s police authorities, who failed to act.



In rejecting her refugee claim, the IRB said Cato’s testimony lacked credibility and dismissed her argument that her memory problems resulted from post-traumatic stress disorder.



But Federal Court Justice André Scott said the board “misconstrued some key facts, and more importantly, ignored some key evidence” in concluding that Cato wasn’t credible.



In another IRB case, the board rejected a refugee claim from Rocio Angelica Flores Alcazar, finding that she didn’t make use of the available state protection in Mexico. Alcazar feared persecution from her former partner, a police officer in Mexico, who beat and raped her, twice sending her to hospital.



Justice Leonard Mandamin found the board failed to consider important aspects of Alcazar’s personal circumstances or properly evaluate contrary evidence about the adequacy of state protection in Mexico.



The third IRB case is that of Thatata Sousa, a Brazilian woman who came to Canada to escape her former spouse, a man described as “violent and in prey to psychiatric issues and substance abuse problems.”



After she was attacked and called police, her father-in-law hung up the phone and later told police the matter was nothing more than a couple’s quarrel. He threatened Sousa and told her he had connections within the police.



Again, the IRB found that Sousa didn’t present sufficient evidence that she couldn’t be protected in Brazil. Judge Simon Noël found that assessment was flawed and overturned the decision.



The final case is that of Estardi Beharry, who fled Guyana with her family for Canada in 2002 after she was beaten and raped in front of her two young children.



The family’s H&C submission described the ongoing trauma suffered by Beharry’s children — now in their teens — as a result of witnessing the vicious attack, and their fear of returning to the country where it occurred.



The officer rejected their application, saying Beharry hadn’t shown that returning to Guyana would have a “significantly negative impact” on the children.



But Judge Anne Mactavish said the officer failed to even address the impact that witnessing the attack has had on them, rendering the rest of the officer’s analysis unreasonable.



The disposition of the cases could suggest that the IRB and immigration officials are putting less weight on the 1993 gender guidelines than they once did. If so, however, the trend is not yet apparent to those who work with or study refugee cases.



“I don’t know that it shows a shift. I hope not,” said Joan Simalchik, a former director of the Canadian Centre for Victims of Torture who now co-ordinates the University of Toronto’s Study of Women and Gender Program.



But the recent cases warrant attention to ensure that the “very important provisions” in the gender guidelines remain intact, she said.



Mitchell Goldberg, a prominent Montreal immigration lawyer and refugee advocate, didn’t want to “leap from individual cases to make a generalization. My experience is that the Immigration and Refugee Board is very sensitive to these issues. There’s obviously exceptions.”



The disposition of refugee claims depends in part on who hears the case, he said. “When you walk into the Immigration and Refugee Board hearing room, to a great extent you know whether your client’s going to be accepted or refused depending on who walks into the room.”



The question of whether applicants can be adequately protected in their home countries “is an area of great controversy” in Federal Court case law, Goldberg said.



Making that assessment isn’t easy, said Toronto immigration lawyer Lorne Waldman. “I think it’s one of the most difficult questions that confronts the IRB,” he said.



The Federal Court is generally more “scrupulous” in reviewing the documentation than the IRB or Citizenship and Immigration officers, Waldman said. “It doesn’t surprise me that on issues such as state protection, there are a lot of decisions getting overturned.”



The court has been especially robust in overturning decisions involving applicants from St. Vincent, a country where violence against women is a major problem. In many instances, according to the U.S. State Department, domestic violence goes unpunished there.



Under the Harper government, acceptance of refugee claims from applicants already in Canada has fallen sharply, from nearly 16,000 in 2006 to just more than 9,000 last year. The number of successful applicants on compassionate and humanitarian grounds, which had been averaging between 10,000 and 11,000 a year, fell to 8,848 in 2010.



Those numbers may reflect Immigration Minister Jason Kenney’s publicly expressed concerns about fraudulent refugee claimants, illegal migrants or other abusers of the system, said Audrey Macklin, a University of Toronto professor who specializes in immigration, refugee and citizenship law.



Kenney appoints IRB members, while those who assess H&C applications work for his ministry, Macklin noted. Given his message of “hostility and skepticism toward asylum-seekers,” she said, “one should be concerned that this may exert an illegitimate influence on decision makers.”



Earlier this month, Kenney accused the courts of “intrusive and heavy-handed” interference in decisions made by immigration officials. “The integrity of decisions made by my department is being questioned too often without sufficient justification.”







Read more: http://www.ottawacitizen.com/sports/Striking+parallels+rejection+refugee+claims/4356526/story.html#ixzz1FERem7ki

Sunday, February 27, 2011

MOST CANADIANS BELIEVE BEV ODA SHOULD RESIGN FROM CABINET : Vision Critical.


Many Canadians believe International Co-operation Minister Bev Oda should resign from the federal cabinet over the controversy related to a document that appeared to recommend a grant to faith-based overseas human-rights group Kairos, a new Vision Critical / Angus Reid poll has found.
The controversy began in October 2010, when bureaucrats in the Canadian International Development Agency (CIDA) approved a $7-million grant to Kairos. The original document—which shows the word “NOT” inserted in the recommendation to provide the grant—was shown to respondents of this online survey.
In December 2010, Oda appeared before a House of Commons foreign affairs committee, and denied knowing who inserted the word “NOT” on the document. Earlier this week, Oda acknowledged that the word “NOT” was inserted into the document on her order.
In the online survey of a representative sample of 1,011 Canadian adults, 58 per cent of respondents believe that Oda should resign from cabinet for her actions, while 12 per cent of respondents believe the International Co-operation Minister has apologized and the matter has been dealt with appropriately.
One third of respondents (33%) think Oda was instructed by the Prime Minister to alter the document, while one-in-four (24%) think she acted on her own.
Full Report, Detailed Tables and Methodology (PDF
)

Saturday, February 26, 2011

The CRTC has withdrawn a proposal would have considerably narrowed the scope of the current ban to cover only false or misleading news .

The CRTC has withdrawn a controversial proposal that would have given TV and radio stations more leeway to broadcast false or misleading news.




Indeed, the broadcast regulator now says it never wanted the regulatory change in the first place and was only responding to orders from a parliamentary committee.



The committee last week quietly withdrew its request for regulatory amendments in the face of a public backlash.



With that, the Canadian Radio-Television and Telecommunications Commission was only too happy to drop the idea altogether.



The proposed change would have considerably narrowed the scope of the current ban to cover only false or misleading news that could endanger the lives, health or safety of the public.



"All I can say is, 'Thank you, committee,"' CRTC chairman Konrad von Finckenstein told the specialty publication The Wire Report last week.



"I will withdraw this proposal tomorrow. This is the end of this issue."



The proposed change sparked concerns that the CRTC was about to allow into Canada the more toxic — often grossly distorted — political discourse that pervades the American airwaves. Those suspicions were fuelled by the timing of the proposal, only weeks before next month's launch of a new, right-leaning all-news network, Sun TV.



However, Von Finckenstein said the CRTC "never wanted to touch this thing" and had, in fact, dragged its feet for 10 years until "we ran out of stalling devices." He said the CRTC finally proposed the change this year "because we were ordered to do it."



He added that he was always "perfectly happy" with the current ban on false news, which has never been invoked against any broadcaster.



Liberal MP Andrew Kania, co-chairman of the joint parliamentary committee on scrutiny of regulations, challenged von Finckenstein's interpretation of what happened.



He said the committee never ordered the CRTC to do anything. It only asked, 10 years ago, that the CRTC consider whether the blanket ban on false news might violate freedom of speech guarantees in the Charter of Rights. The request was prompted by a Supreme Court ruling in the case of Holocaust-denier Ernst Zundel.



Over the past two years, the committee reminded the CRTC that it still hadn't responded on the matter but did not push for any particular regulatory change, Kania said.



Only last week, in the wake of the public outcry over the CRTC's proposed change, did the committee consider the substance of the issue. Kania said committee members concluded that free speech guarantees don't apply to broadcast licence holders in the same way as they do to individuals.

Friday, February 25, 2011

Opposition MPs say they're going to try to force the prime minister to produce evidence about an altered document at a House of Commons committee.: Oda emails

Opposition MPs say they're going to try to force the prime minister to produce evidence about an altered document at a House of Commons committee.




Liberal foreign affairs critic Bob Rae says the opposition will table motions next week at committee to force the offices of Stephen Harper and International Cooperation Minister Bev Oda to table documents about the infamous "not" inserted on a memo that otherwise would have okayed $7 million in funding for aid organization Kairos.



Rae says the opposition won't drop the issue and vowed to track down whoever inserted the three-letter word, changing the meaning of the typed document.



"Is there an email that says 'do this'?" he asked.



"Who are all the people who received the email? Governments operate with records and with paper. There is a paper trail, there's an email trail. This thing is not going to go away."



International Co-operation Minister Bev Oda in the Commons last week. Oda says it was someone on her staff who inserted the "not" at her instruction. She says the memo reflects her decision.



"We intend to pursue this and I can just say to the government that it's going to be in the dentist chair for weeks to come," Rae said.



"We are not going to allow a minister to mislead the House of Commons and not tell the truth to Canadians about an issue of significance in her department, and simply get away with it."



"If they're refusing to come forward with the information, then the only alternative is root canal. And that's what it's going to be," he said.



Parliamentary privilege

The opposition lodged a formal complaint with House Speaker Peter Milliken last Thursday, arguing Oda breached parliamentary privilege by misleading the House over who recommended denying funds to Kairos.



(CBC) What is the Autopen? The Conservatives officially responded Friday, arguing the facts don’t support the allegation that Oda broke the rules.



MP Tom Lukiwski said the document with the “not” inserted was meant only to communicate the minister’s decision. He said it wasn’t intended to be made public.



The next day, the party reportedly distributed a memo that said Oda was out of town when the decision was due. The memo said her staff inserted the "not" at her instruction and used a machine called an Autopen — that mimics her signature — to sign the document.



NDP foreign affairs critic Paul Dewar says Canadians don't like being lied to. He says the story resonates with voters.



"They care about people not doing their job. They care about when people say they're going to be different and they're not," Dewar said.



"It's about hypocrisy ... (Canadians) don't like when people don't tell the truth and when people try and play them."



Conservatives respond

The opposition has tabled a foreign affairs committee report in the House of Commons that opens the door to possible sanctions against Oda over her responses to the committee last year. Milliken isn't expected to rule on the matter until next week at the earliest.



Conservative MPs filed a supplementary report, saying they don't agree Oda is in breach of privilege or that she intended to mislead the committee.



"The minister does understand that she could have more clearly communicated the purpose and intent of why and how her office implemented her direction, and she has apologized to the House of Commons for how this issue has been handled. In that statement, she clearly said that it was never her intention to mislead either the House of Commons or the committee," the Conservative response read.



If Milliken were to decide Oda's actions constituted a breach, the matter would then go back to a committee to decide whether a vote should be held in the House on the breach question.



If Oda became the first sitting minister to be held in contempt of Parliament, that would put pressure on Harper to remove her from the cabinet.