Lall v Alberta (Chief Electoral Officer), 2016 ABQB 117

Court of Queen ’ s Bench of Alberta Citation: Lall v Alberta (Chief Electoral Officer), 2016 ABQB 117 Date: 20160301 Docket: 1501 13771 Registry: Calgary Between: Jamie Lall and Shubkearn Sihota Applicants - and - Chief Electoral Officer of Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ I. Introduction [ 1 ] The Applicant, Jamie Lall was an independent candidate in the previous 2015 Alberta Provincial General Election. He wishes to run again.

The Applicant, Shubkearn Sihota was his chief financial officer. [ 2 ] The Applicants submitted their “Candidate Financial Statements” after the deadline prescribed by the legislation. As a result, unless an Order is obtained from the Court dispensing or extending time for compliance, the Applicants are prohibited from being

nominated as a candidate in a provincial election for a period of at least five years. [ 3 ] Due to these circumstances, on February 24, 2016, counsel for the Applicants, who are involved in the present by-election, wrote the Chief Justice of this Court, asking for an urgent hearing dealing with the Elections Finances and Contributions Disclosure Act, RSA 2000, c E-2 [the “ Act ”]. [ 4 ] The application is serious. Mr. Lall is approved to be a candidate for nomination by the Progressive Conservative [“PC”] Party of Alberta in the provincial by-election in the Calgary-Greenway Constituency, set for March 22, 2016.

The PC intra-party candidate nomination meeting is scheduled to occur on Saturday, 27 February, 2016. The results is that Mr. Lall requires a favourable and quick decision from this Court if he is to be a plausible candidate in the impending by-election, and, perhaps more importantly, to run for political office in Alberta for the next five years. II. Background [ 5 ] The Act governs financing elections in Alberta.

By law, anybody who wants to raise money for a campaign must register and have a Chief Financial Officer [“CFO”] who keeps records and, within four months after an election, file those records in a manner acceptable to the Chief Electoral Officer [“CEO]). The Applicants missed the filing deadline by eight days.

When an electoral candidate misses that deadline then the CEO shall report to the Speaker of the Legislature that fact ( Act , s 44(1)), with the consequence that the candidate is blocked from being nominated as a candidate in an Alberta provincial election ( Elections Act , RSA 2000, c E-1 , s 57), unless that candidate received relief from the Court of Queen’s Bench under the Act , s 44(3). [ 6 ] Mr. Lall’s financial records were filed eight days late. He and his CFO offer various explanations for that, and request what is essentially an exemption from the financial records reporting deadlines.

The CEO appeared as well but restricted its submissions to a review of the legislative scheme. [ 7 ] That was the basis of the hearing before me, and my oral decision on Feb. 26, 2016. These reasons explain the result that I made on that date: I denied Mr. Lall relief and the result is that by order he is prohibited from being a candidate for election in Alberta for a five year period after the date Mr. Lall made his late financial record filing. III. Issue [ 8 ] The single issue for me is should the Court dispense with s.43 of the Act or alternatively, extend the time period for compliance with it? IV.

The Law [ 9 ] Section 43(2) of the Act provides :

(2) Subject to subsection (7) and section 44(3), within 4 months after polling day the chief financial officer of a registered candidate shall file with the Chief Electoral Officer a financial statement setting out, in the form and manner approved by the Chief Electoral Officer, assets of over $1000 in the aggregate, liabilities, revenue and expenses, including expenses paid on behalf of the candidate by a registered party or a constituency association, during the campaign period or that relate to the campaign period. [ 10 ] When there is non-compliance, s.44 of the Act applies.

It says: 44(1) Subject to subsections (2) and (3), if the chief financial officer of a registered candidate fails to file a financial statement as required by

section 43 or a registered candidate fails to eliminate a campaign deficit referred to in

section 43.1, the Chief Electoral Officer shall transmit a report to that effect to the Speaker of the Assembly, who shall on its receipt lay the report before the Assembly if it is then sitting or, if it is not then sitting, within 15 days after the commencement of the next sitting.

(2) If the Speaker lays a report before the Assembly under subsection (1), the registered candidate concerned or the candidate’s chief financial officer, or both, may, within the 60-day period following the date on which the report was laid before the Assembly, apply to the Court of Queen’s Bench for relief. [ 11 ] The Court, on application, has several relief options available to it under s.44(3) of the Act . The Court may: (

a) dispense with compliance with s.43 or 43.1, or any provision of it, if it considers that the non-compliance is due to circumstances beyond the control of the candidate or the chief financial officer, or both, and that it is not reasonably possible to comply with the section, (

b) extend the time for compliance with s.43 or 43.1, or any provision of it, if it finds mitigating reasons for non-compliance with the section, (

c) make any order that it considers appropriate to secure compliance with so much of s.43 or 43.1 as it considers reasonable in the circumstances , or (

d) refuse the application. [Emphasis added.] [ 12 ] My decision is final. The legislature has instructed that there is no appeal from my finding in relation to this application: Act , s

44(5). V. Submissions [13] The Applicant, Lall, admits to his late filing and further admits: 1. he received at least one letter informing him of the deadlines; 2. he delivered the required information 2 days late; 3. while he understood the operation of law makes him 8 days late, he tried and within 2 days, or 48 hours, he nevertheless hadthe information in; and 4. finally, his explanation for being late was he did not get the reminder notice (in August) and he missed the deadline due tocircumstances beyond his control. [14] Mr.

Lall explained that the reason he did not get the reminder notice was because he and the CFO had deactivated the emailaddress where that notice was delivered. [15] The applicant, Sihota, admits, as does Mr. Lall, that he knew of the deadlines and was late due to circumstances beyond hiscontrol. Additionally, like Mr.

Lall, there was some miscommunication related to the deactivation of the candidate’s email account. [16] The Respondent CEO took no position and appeared in Court only to explain the record and to fill in the voids of evidence.The CEO placed additional facts in front of the Court: First, the CEO told the Court the relevant deadlines and statutory requirementswere sent and re-sent to the applicants. Among those notices included a direction that documents were considered filed once there werereceived, as opposed to the day they were sent.

Essentially, the CEO indicated, and to the Court’s satisfaction, the Applicants hadsufficient notice and deadline reminders on top of the notice. [17] To the credit and honesty of the Applicants, they do not deny knowledge of the deadlines. VI. Analysis [18] As stated by the CEO, the Act both regulates who can contribute to the campaigns, when contributions may be made, andlimits the amount that any single person can contribute. Further and significantly, the Act requires public disclosure of election campaignfinancing. [19] The legislation is important.

Its objectives are fairness, transparency and accountability. The Act, along with the Elections Act,govern eligibility and penance for those who fail to comply with the law. Canadian courts have a long history of viewing opacity inelection financing in a very dim light.

For example, in Belleau v Dussault (1885), 1885 CanLII 52 (SCC), 11 SCR 133 the Courtconcluded that a failure to account for spending of large sums by a candidate’s agent creates a presumption that corrupt election practiceshave occurred, see also Sideleau v Davidson, (SCC), [1942] SCR 306, [1942] 3 DLR 609. [20] The role of electoral officials is critical. These agencies and the rules they administer are a bulwark against improprieties thatmay undermine Canada’s democratic processes.

As Rothstein and Moldaver JJ in Opitz v Wrzesnewskyj, 2012 SCC 55 at para 69, [2012]3 SCR 76 recently observed, mistakes are inevitably made in a complex and time-driven process such as an election, but nevertheless: ... Failure to live up to this mandate would shake the public’s confidence in the election system as a whole and render it vulnerable toabuse and manipulation. ... [21] Here the Court of Queen’s Bench supplements that supervisory role, since it has been delegated a specific role by thelegislature, which I shall comment upon further. Nevertheless, the same strategic purpose and role applies to me.

I now act to see that theLegislature’s intent in relation to election financing is honored. [22] The important scrutiny of election financial activities identified in Belleau v Dussault are achieved, in part, through timelyfiling of financial statements. These reporting obligations are not optional. which, given the importance of the legislative regime, isunderstandable. The scheme set out by the legislature presumes that a candidate who fails to meet those time-dependent reporting stepsshould be restricted from running for office in a defined penalty.

A candidate may only obtain an exception from that result by applyingto the Alberta Court of Queen’s Bench “for relief”: Act, s 44(2). [23] It is important to scrutinize how the Legislature has framed the Court’s role.

The legislation provides four responses to non-compliance: judicial remedies for non-compliance are: 1. dispense with the s 43 reporting requirements of the Act, as per s 44(3)(a); 2. extend time for compliance with s 43, of the Act as per s 44(3)(b); 3. make any other appropriate order to secure compliance, as per s 44(3)(c), or 4 refuse the application, as per s 44(3)(d). [24] The statutory test to exercise the Court’s discretion varies among the options.

For example, under option (a) (dispensing withcompliance altogether), the test is whether it was not “reasonably possible” to comply due to “circumstances beyond the control of thecandidate”.

[ 25 ] The second option, (b), lets the Court extend time for compliance if there are “mitigating reasons” for non-compliance. [ 26 ] The third option (

c) allows the Court to make any order it considers “reasonable in the circumstances” to secure compliance. [ 27 ] Finally, if the first three options do not apply, the Court is left with no other option than to refuse the application. These options are discussed below. [ 28 ] I will at this point also indicate how I interpret the operation of ss (44(3)(b)) and ss (44(3)(c)) because that is very relevant to the overall operation of this provision. Sections (

a) and (

d) are final - they either dispense with the reporting requirement or deny the applicant candidate relief. I conclude that ss (

b) and (

c) permit ongoing Court supervision. Section 44(3)(

c) permits the court to order steps which may be directed to a candidate who is derelict in their duties, or perhaps to a third party who has critical information but has refused to provide it. The Court then has the power to enforce these steps to ‘move the process along’ with its contempt authority. An order under s 44(3)(

c) may have a matter return to Court to see if the reporting issue has now resolved, or if further steps are required. [ 29 ] Similarly, I see s 44(3)(

b) as having two aspects. First, it can extend the deadline of a late but completed filing. That is the situation here. Mr. Lall asks to have a late but otherwise satisfactory accounting report filed in a timely manner by the Court extending the statutory deadline to make the late filing ‘good’. However, I conclude that s 44(3)(

b) also permits the Court to provide additional time for an as-of-yet unresolved filing deficiency, so that the matter then returns to the Court in the future to see if the deficiency has been resolved in a manner that meets the Act ’s filing legislation, or otherwise deserves a ss 44(3)(

a) or 44(3)(

d) response. [ 30 ] For example, if a candidate was unable to meet the Act ’s , s 43 reporting obligation because a third party had necessary records, the Court could make an order to have those records produced (s 44(3)(c)), and extend the filing deadline for 30 days from the hearing date to permit the candidate to obtain and use that information to complete the Act’s , s 43 financial statement. If that time was not adequate the candidate may return to seek another extension, or have the reporting requirement dispensed with in whole or in part ( Act , s 44(3)(a)). VII.

Case Law [ 31 ] No Alberta precedent exists. Beyond Alberta, there are few cases that provide guidance. It is true that in Alberta, in recent history, the Court has granted Consent Orders in these applications (without reasons). The CEO gave evidence this happened four times in 2009, once in 2011, and twice in each of 2012 and 2013.

But, courtesy of a transcript, the Court is only aware of the circumstances of one of those cases, discussed next. [ 32 ] In 2012, this Court granted an Order in Yvonne Fritz and Perry Cavanaugh v Chief Electoral Officer (8 November 2012), No 1203-16318 (November 8, 2012) (ABQB) [“ Fritz ”]. The transcript of that proceeding indicates Justice Manderscheid said: In cases such as this where the Court has to basically take a look at is whether or not the actions by the applicant are such that they were remiss in compliance with their statutory obligations.

Did they go out of their way to basically use the system to their own gains? I am familiar from my previous life when I was in public practice with in civil elections where some of them were contested, and we had legislation very similar to this, it was brought into play. In those cases, the Court looked at what are the mitigating circumstances that would cause this Court to exercise its discretion to grant an extension of time or basically to forgive the error. In this particular case, the evidence before this Court is that the applicant had a medical situation that arose while she was out of the country.

Needless to say, it would be very hard to get an original signature onto a document without having the document sent to where she is and then back. But that again may very well have caused her to breach the statutory time line. More so, the evidence would strongly suggest that she took every precaution and step to comply with the legislation. [Emphasis added.] [ 33 ] I pause at this point to note important aspects of the apparent scenario. The late filing was the consequence of an independent event that was outside the control of the candidate. She became ill in a remote location.

I conclude this is an example of circumstances beyond her control. [ 34 ] Though under different legislation, the Ontario case of Singh v Peel District School Board , 2015 ONSC 3092 , 254 ACWS (3d) 351 [“ Singh ”] is closest on these facts. There, two different applicants were five and six days late, respectively. The Court said at para 19: I find the applicants’ conduct to be much closer to inadvertence than indifference. This was a first campaign for both of them . They appear to have believed that they had set the wheels in motion to comply with their filing obligations.

Evidence of their good faith may be seen by the fact that once they realized they had not met the deadline, they worked diligently to try to remedy their error, including hiring an auditor to complete the audit on an expedited basis. Ultimately, Harkirat was five days late and Gurratan was six days late. [Emphasis added.] [ 35 ] I must immediately point out that the Ontario regime is different. First, Singh has the applicants seeking an Order, pursuant to s 98 of the Courts of Justice Act , RSO 1990 c C.43 and not under any equivalent legislation to our Election Finances and Contributions Disclosure Act .

Second, the “Relief against penalties” provision in Ontario is different. It says: 98 A court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just. The equivalent Alberta provision is Judicature Act, RSA 2000, c J-2 , s 10: 10 Subject to appeal as in other cases, the Court has power to relieve against all penalties and forfeitures and, in granting relief, to impose any terms as to costs, expenses, damages, compensation and all other matters that the Court sees fit. The “relief against forfeiture” is different.

[ 36 ] Oddly, the Ontario Municipal Elections Act , 1996, SO 1996, c 32 does have the phrase "mitigating circumstances" under their “Application to Court” provision too, although not quoted in Singh . It says: “Application to court” 80(4) The candidate may, before the last day for filing a document under

section 78 or 79.1, apply to the Ontario Court of Justice to extend the time for filing the document under that

section and, if the court is satisfied there are mitigating circumstances justifying a later date for filing the document, the court may grant an extension for the minimum period of time necessary to enable the candidate to file the document but the court shall not grant an extension of more than 90 days. [ 37 ] I see several important distinctions between the scenario in Singh and the present case. First, in Singh , it was the candidate’s first election. For Mr. Lall, it was his second. Next, in Singh there is evidence of the wheels being set in motion in advance; also there is evidence of diligence.

The two candidates believed they had taken steps to meet their reporting obligations. When they discovered their filing would be late they then took additional steps to meet their obligations. [ 38 ] But in the present case, if anything, the case is one of excusable neglect.

Admittedly, that is not the statutory test Alberta and if it were, the word neglect suggests “negligence” and not the inaction, which is what happened in this case, and “excusable” suggests diligence before the deadline (and we have no evidence of that). [ 39 ] Counsel for the Applicants stressed they were only two days late (admitting as a matter of law, they were eight days late) yet that submission still misses the point.

It is not the number of days late as much as it is the reason for the delay. [ 40 ] As in Ontario, I do think principles of good faith apply to the late-filing analysis as a starting point for any of the three Alberta options--or as counsel for the CEO opined, an absence of bad faith. This case is definitely not a case of bad faith. Good faith is a good starting point and that is what happened in Fritz .

Manderscheid J pointly questions whether the applicants were “... using the system to their own gains.” No relief would be appropriate if that were the case, and the candidates application should be dismissed, per s 44(3)(d). [ 41 ] So, assuming there is good faith, which of the three statutory options apply? [ 42 ] The language of s 44(3)(

a) clearly addresses a situation beyond the control of the candidate. Put another way, this alternative the Court can dispense altogether with the reporting process because the candidate and his/her CFO could not meet the requirements. This is an example of frustration. That ends the process. There is no sanction to the candidate. [ 43 ] The third option is not this case because it involves reasonable orders to compel compliance, which could be anything such as an uncooperative third party or a candidate who is trying to hide from his or her obligations.

As I previously explained, if that were the case I believe the court would then retain jurisdiction to supervise that order. [ 44 ] Mr. Lall’s potential remedy is only under the s 44(3)(

b) alternative where the Court could grant an extension of time. Here, Mr. Lall falls into the alternative where an extension of time is so that a past, late, but complete filing is essentially deemed to be filed in time. However, the Legislature has been explicit on when an extension may be granted: “if [the Court] finds mitigating reasons for non - compliance with the section”. [ 45 ] To summarize, there are only two ways for a candidate to avoid restriction: (

a) good faith compliance is frustrated (

b) good faith compliance occurred in a late time frame but the deadline was extended. By law, extension requires a finding of mitigating reasons for the late compliance. Any candidate and/or CFO who does not meet either criteria must have their application denied. The Legislature has left no other alternatives. [ 46 ] As I told counsel in court, this scenario is a lot like filing taxes. Both of these are self-reporting processes. The onus is on the candidate/taxpayer to file. Not on the state to chase either down, and to remind them. Failure to file has automatic consequences - referral to the Court to see if the late or incomplete filing is due to (

a) frustration or (

b) mitigating circumstances. In those events, no penalty may occur. [ 47 ] The Court’s function therefore is: 1) questions of mixed fact and law - are there mitigating circumstances or frustration? 2) to issue binding orders via s 44(3)(

c) that can be enforced with the contempt sanction so that candidates, CFO’s, and third parties do not interfere with the obligation to self-report. [ 48 ] As I said above, there is no evidence of bad faith and indeed there is evidence of good faith. What happened, perhaps innocently, is that the applicants lost their focus on the deadlines and simply missed them. But even if “mitigating reasons” equivocates to “excusable neglect” (and I do not think that is what the Legislature intend) that standard was not met. Good faith alone is not enough.

Among other things, the applicants’ confusion over mail or deactivating emails is their own fault; indeed there is a statutory requirement on them to maintain correct information including contact information upon registration: Act , s 9.

[ 49 ] Ultimately, there is no deminimus exception built into the law for good faith late-filers. There has to be mitigating reasons to extend the time for compliance. The word “mitigating” has a very specific legal meaning. It means someone else or something else is at least partially to blame. In Fritz bad luck, an illness, was an external factor that caused delay (plus, something beyond her control). In Singh an apparently appropriate mechanism that fell short was the external factor that caused delay.

But there, the applicants had set the wheels in motion and showed evidence of diligence. [ 50 ] The applicants here can point to no-one and nothing but themselves for the late financial reporting. It was their fault, and theirs’ alone. They were careless and admitted they were foolish or ill advised to have let the contact email address lapse. [ 51 ] Counsel did point out the harshness of the result, in part because Applicants cannot run for office for five years in this case.

A balancing of the facts and the result including a reference in the CEO’s brief that requires me to look at s.3 of the Canadian Charter of Rights and Freedoms,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the “Charter”] . That

section encompasses both the right to vote and to be qualified as a candidate: Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. [ 52 ] The Charter application was not before me and thus I cannot rule on it. Arguably, if Mr. Lall considers the regime set out by the Legislature in the Act to be too harsh then this would be an optional remedy for the disheveled and late manner in which he and his CFO approached their mandatory post-election financial reporting obligation. VIII.

Conclusion [ 53 ] The applications are dismissed. Heard on the 24 th and 26 th day of February, 2016. Dated at the City of Calgary, Alberta this 1 st day of March, 2016. W.A. Tilleman J.C.Q.B.A. Appearances: Brad J. Findlater for Applicants Fiona N. Vance for the Respondent