Canadian Taxpayers Federation v Alberta (Election Commissioner), 2024 ABKB 5

Court of King’s Bench of Alberta Citation: Canadian Taxpayers Federation v Alberta (Election Commissioner), 2024 ABKB 5 Date: 20240103 Docket: 1903 02836 Registry: Edmonton Between: Canadian Taxpayers Federation, John Doe, Jane Doe Applicants - and - Alberta (Election Commissioner); Alberta (Chief Electoral Officer); Alberta (Minister of Justice and Solicitor General) Respondents _______________________________________________________ Memorandum of Decision of the Honourable Justice G.S. Dunlop _______________________________________________________ 1.

Introduction [ 1 ] In July 2018 the Canadian Taxpayers Federation (the “Federation”) posted two billboard advertisements in Edmonton with the message: You can’t buy “social license” when it’s not for sale.

[ 2 ] Four people contacted the Election Commissioner (the “Commissioner”) about those billboards. The Commissioner’s officials investigated. The investigation included communications with the Federation. The issue was whether the billboards were “political advertising”, as defined in the Election Finances and Contributions Disclosure Act, RSA 2000, c E-1 (the “ Act ”). The Act required anyone engaging in political advertising to register with the Commissioner. The Federation was not registered. [ 3 ] On October 23, 2018 the Commissioner issued a notice of adverse finding and proposed penalty.

The Commissioner wrote that he was “inclined to define the message posted on the billboards as political advertising”. The Commissioner’s proposed administrative penalty was $1,000 plus repayment of the cost of both billboards, which was $1,955. As set out in the Commissioner’s October 23, 2018 letter, the Federation would be required to either repay the $1,955 to the person who contributed that amount, or, if the contributor was unknown, then pay that amount to the General Revenue Fund.

Effectively, the total financial penalty proposed in the Commissioner’s October 23, 2018 letter was $2,955. [ 4 ] On November 21, 2018, the Federation wrote the Commissioner raising constitutional and other issues, and objecting to any finding or penalty, but making no submissions regarding the amount of the proposed penalty. [ 5 ] On January 8, 2019 the Commissioner issued his decision which found that the Federation had breached the Act and imposed an administrative penalty of $6,000, but without any requirement that the Federation repay the cost of the two billboards. [ 6 ] On February 6, 2019 the Federation filed an Originating Application which incudes both an appeal pursuant to s. 51.03 of the Act and an application for constitutional relief. [ 7 ] Pursuant to a consent order filed on February 15, 2023 the appeal was severed from the constitutional relief, with the appeal to be scheduled for hearing in October or November 2023 and the constitutional relief to be heard separately on dates to be determined. [ 8 ] The appeal came before me in a special chambers hearing on October 26, 2023.

As a result of reviewing the record and discussing it with counsel, I asked counsel to look for the Commissioner’s October 23, 2018 notice of adverse finding and proposed penalty, which was missing from the record.

Counsel did so and provided the missing document to me on November 2, 2023, along with a letter advising that the October 23, 2018 notice of adverse finding did not change either parties’ position on the appeal. [ 9 ] Counsel for the Commissioner and the Chief Electoral Officer (the “Officer”) made submissions orally and in writing on the appeal but limited those submissions to explaining the record and the legislation, without taking a position on the substance of the appeal.

Counsel for Alberta (Minister of Justice and Solicitor General) appeared at the hearing on October 26, 2023 but made no submissions on the appeal. [ 10 ] The Federation identified four grounds of appeal in its written submissions filed June 7, 2023, which are: • first, that the Commissioner’s

interpretation of “political advertising” was overbroad; • second, that the Commissioner failed to consider relevant evidence regarding liability and penalty; • third, that the Commissioner erred in treating the fact that the Federation was bringing a bona fide test case as an aggravating factor in determining the amount of the penalty; and • fourth, that the Commissioner increased the administrative penalty from $1,000 set out in his October 23, 2018 notice to $6,000 set out in his January 8, 2019 decision, without providing reasons for doing so. [ 11 ] During oral argument the Federation abandoned the first ground, so I will not address it in these reasons. 2.

Standard of Review [ 12 ] The Act provides for an appeal of an administrative penalty in s. 51.03. There is no standard of review specified in the Act , so appellate standards of review apply, being correctness on extricable questions of law and palpable and overriding error on questions of fact and questions of mixed fact and law: Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 at para 37 . 3.

Failure to Consider Relevant Evidence [ 13 ] The Federation submits that the absence from the Commissioner’s January 8, 2019 decision of any reference to the Federation’s communications with Elections Alberta during a previous investigation shows that the Commissioner failed to consider relevant evidence. In the Federation’s submission, that is an error of law. Alternatively, it is an error of fact of mixed fact and law. [ 14 ] An investigator in the Commissioner’s office prepared an investigation report dated October 17, 2018 and an updated investigation report dated October 22, 2018.

Both reports describe a previous investigation of the Federation by Elections Alberta. The reports use the abbreviation “CTF” to refer to the Federation. The description of the earlier investigation in the October 22, 2018 report reads as follows:

D) Previous Investigation On November 17, 2017 Elections Alberta sent Scott Hennig, Alberta Regional Director of the CTF a letter about a complaint they received about the CTF engaging in political advertising without being registered with Elections Alberta. The letter quoted the legislation and explained the registration requirements for third party advertisers.

A short time later, on November 27, 2017, Mr. Hennig wrote back to Elections Alberta asking for "insight, clarification and direction" and asked the following questions: 1. What advertisement was brought to EA's attention? 2. Who made the complaint? 3. What issues are associated with politicians In Alberta? 4. Would CTF be retroactively required to register if a politician decided to align himself/herself with an issue CTF had been advertising after the fact? 5.

Please clarify whether the placement of a non-partisan billboard opposing a taxation initiation (such as the carbon tax) would be considered "political advertising" and would require registration. 6. If we were to decline to register and decline to disclose our expenses and donor contributions, is it your

interpretation that we would have to discontinue non-partisan advertisements? 7. Are all such tax-related communications now forbidden without registration and disclosure? 8. Would costs associating with our website be considered political advertising and require registration and disclosure of expenses and contributions? 9. CTF plans to tour a non-partisan National Debt Clock around Alberta. Would this be considered political advertising and would it require registration? It appears Elections Alberta did not respond to Mr.

Hennig's letter so on January 23, 2018 he emailed Melanie Malchuk and Kevin Lee and asked If they intend to respond. On January 30, 2018 Ms. Malchuk spoke to Mr. Hennig on the phone and he asked for a written response. By March 9, 2018, Ms. Malchuk wrote to Mr. Hennig and advised him Elections Alberta is not going forward with the investigation in relation to the billboards. She also advised him of the following in response to his questions: 1. Each complaint is individually assessed as it arises. 2. Elections Alberta doesn't track which political issues are associated with which political party. 3.

If a political entity associates Itself with an issue presented first by CTF in its advertising or lobbying, the EFCDA does not recognize any exemptions. 4. Without seeing the National Debt Clock and its associated advertising, Elections Alberta's view is the debt belongs to the province regardless of which party is in power and wouldn't be regarded as political advertising.

However, she cautions CTF that this is a general statement. (emphasis added) [ 15 ] The Commissioner made no reference to the earlier Elections Alberta investigation in either his October 23, 2018 notice of adverse finding and proposed penalty or his January 8, 2019 decision. [ 16 ] The following facts are apparent from the record: • The Commissioner received a detailed description of the Elections Alberta investigation in his investigator’s October 22, 2018 report, quoted above. • On January 2, 2019 the Commissioner emailed a letter to the Officer which reads: I am writing to you in the context of an investigation into advertising and the Canadian Taxpayers Federation.

I am requesting correspondence from Elections Alberta to the Canadian Taxpayers Federation regarding the

interpretation of

section 44.1(1)(

g) of the Election Finances and Contributions Disclosure Act , and advertising messages that take a position on an issue with which listed individuals or entities are associated. • The Officer responded by delivering the following documents: o March 9, 2018 letter from an Elections Alberta investigator to the Federation; o January 23, 2018 email from the Federation to Elections Alberta; o November 27, 2017 letter from the Federation to Elections Alberta; o November 17, 2017 letter from Elections Alberta to the Federation; o November 16, 2017 email chain between two Elections Alberta officials; and o Pages from the Federation’s website printed on November 16, 2017 including a photograph of two billboards which read, “Alberta’s

carbon tax will hike your heating bill by over $200/year” and “By 2018, the carbon tax will cost your family over $600/year”. [ 17 ] The Federation submits that the absence of any reference to the Elections Alberta 2017 / 2018 investigation in the Commissioner’s October 23, 2018 notice and January 8, 2019 decision shows that he did not consider the earlier investigation.

I am not prepared to draw that inference for the following reasons. [ 18 ] First, the earlier investigation by Elections Alberta did not result in a finding that billboards opposing a carbon tax were or were not political advertising or any other finding. Elections Alberta merely decided not to proceed with its investigation.

It was therefore open to the Commissioner to conclude that the earlier investigation was irrelevant, and for that reason to omit it from his October 23, 2018 notice and January 8, 2019 decision. [ 19 ] Second, the Federation in its November 21, 2018 letter made submissions primarily about constitutional issues and referred to the earlier Elections Alberta investigation only in support of its submission that the Act was impermissibly vague.

Notably, although the Federation used the phrase “due diligence” in its letter, it made no submissions that there was a due diligence defence available, nor did it make any submissions regarding penalty. The Federation might have submitted to the Commissioner that this was a test case which could be a mitigating factor in imposing a penalty, but it did not do so in its November 21, 2018 letter or anywhere else in the record.

In the context of the objections raised by the Federation, there was no reason for the Commissioner to refer to the earlier Election Alberta investigation in his decision. [ 20 ] Third, the fact that the Commissioner specifically requested from the Officer correspondence from the earlier investigation, which he received, gives rise to an inference that the Commissioner reviewed it.

The absence of any reference to this material in his decision supports the conclusion that the Commissioner considered it to be irrelevant. [ 21 ] For those reasons I find that the Commissioner did consider the earlier Elections Alberta investigation and concluded that it was irrelevant. [ 22 ] Furthermore, a mere failure to refer to certain evidence is insufficient to justify appellate interference: As noted above, this Court has previously held that "an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion" ( Van de Perre , supra , at para.15).

In the present case, it is not clear from the trial judge's reasons which portions of the evidence of Mr. Laughlin, Craig and Toby Thiel and Paul Housen she relied upon, or to what extent. However, as we have already stated, the full evidentiary record was before the trial judge and, absent further proof that the omission in her reasons was due to her misapprehension or neglect of the evidence, we can presume that she reviewed the evidence in its entirety and based her factual findings on this review.

This presumption, absent sufficient evidence of misapprehension or neglect is consistent with the high level of error required by the test of "palpable and overriding" error. We reiterate that it is open to the trial judge to prefer the testimony of certain witnesses over others and to place more weight on some parts of the evidence than others, particularly where there is conflicting evidence: Toneguzzo-Norvell , supra , at pp. 122-23.

The mere fact that the trial judge did not discuss a certain point or certain evidence in depth is not sufficient grounds for appellate interference: Van de Perre , supra , at para.15. Housen v Nikolaisen, 2002 SCC 33 at para 72 (emphasis added) [ 23 ] The weighing of evidence is subject to deference on appellate review, and I find no palpable and overriding error by the Commissioner on this point. 4.

Failure to Properly Consider Test Case in Setting Penalty [ 24 ] The Federation submits that the investigation into its two billboard advertisements posted in July 2018 was a test case, because it had an honestly held belief that the Act was unconstitutional. In the Federation’s submission, the Commissioner committed a palpable and overriding error in failing to consider this as a mitigating factor in imposing an administrative penalty. The Federation raised this issue for the first time on appeal.

The Federation made no submissions to the Commissioner regarding the amount of the penalty. [ 25 ] The Commissioner provided the following reasons for the administrative penalty he imposed (using “ EFCDA ” to stand for the Act , and “CTF” to stand for the Federation): Having determined that

section 9.1(1) of the EFCDA was violated by the CTF's actions, the Election Commissioner must consider the following factors prior to issuing any penalty, as set out in

section 51.01(4) of the EFCDA : 1. The severity of the contravention - It is the Election Commissioner's view that this contravention was of moderate severity. 2. The degree of wilfulness or negligence in the contravention - Our investigation found that the CTF, through its own admission, was aware of the third party registration requirement in the EFCDA but has no intention of complying with this requirement. 3.

Whether or not there were any mitigating factors relating to the contravention - Our investigation found no evidence of mitigating factors, nor did the CTF provide any in the November 21, 2018 reply to the Election Commissioner's October 23, 2018 Notice of Adverse Finding and Proposed Penalty inviting a response . 4. Whether or not steps have been taken to prevent reoccurrence of the contravention - The billboards have been removed.

However, the CTF has indicated that they have yet to decide whether to continue with this billboard campaign in opposition to Alberta's carbon tax and have also indicated that the CTF has no intention of registering as a third party if they do decide in future to continue the

billboard campaign. 5. Whether or not the entity has a history of non-compliance - The Election Commissioner does not have evidence with respect to the CTF's history in this regard. 6. Whether or not the entity reported the contravention on discovery of the contravention - The CTF did not report this contravention. 7.

Any other factors that, in the opinion of the Election Commissioner, are relevant - The CTF responded to the Election Commissioner's letters of August 31, 2018 and October 23, 2018 indicating that the CTF believes the requirement to register as a third party advertiser outside of an election period is unconstitutional . (emphasis added) [ 26 ] The Commissioner explicitly referred to the Federation’s belief that the Act is unconstitutional in paragraph 7 of his reasons quoted above.

The Federation submits that the Commissioner’s reasons in paragraphs 2 and 3 suggest that that Commissioner treated this as an aggravating factor. I disagree. Reading his reasons as whole, I understand that the Commissioner treated the test case aspect as a mitigating factor. Otherwise, he would not have included paragraph 7 at all. The implication of including the Federation’s belief as an “other factor that, in the opinion of the Election Commissioner, is relevant” is that the Commissioner treated it as a mitigating factor.

This is supported by the fact that the Commissioner imposed a relatively low administrative penalty of $6,000 in the context of a maximum penalty of $100,000: ss. 49.1(

b) and 51.01(5)(d)(ii) of the Act . [ 27 ] The Commissioner committed no palpable and overriding error on this point because he treated the test case aspect as a mitigating factor. 5. Failure to Provide Reasons for Increasing the Penalty to $6,000 [ 28 ] The Act requires the Commissioner to notify an organization under investigation of the nature of the investigation and the substance of the allegations: Act s. 44.97(1.1) and (3). The Act does not require the Commissioner to notify the organization of his proposed penalty, but he did so in this case.

The Commissioner’s October 23, 2018 letter includes the following under the heading: “Notice of Proposed Penalty”: In assessing the appropriate penalty, I have considered all the information obtained during the investigation and am of the opinion that an administrative penalty would be appropriate in the circumstances. I believe that the CTF intended to convey a message in opposition to an issue associated with the leader of a registered political party and it was fully aware of the requirements for third party advertising registration. ...

In my initial assessment of this matter, I am considering an administrative penalty of $1,000. Further, as per

section 51.1(1) of the EFCDA, where a contribution has been made or accepted in contravention of the Act , the Election Commissioner may order that the amount of the contribution be returned to the contributor. As this is the case, I am also considering directing the CTF to return the full cost of the advertisement to the contributor. If the contributor is unknown, then the amount would be paid into the General Revenue Fund. ...

You are invited to respond to this notice and include any information you consider to be relevant prior to my final assessment and issuance of an appropriate penalty. (emphasis added) [ 29 ] The Federation responded with its November 21, 2018 letter which contains no submissions regarding the amount of any penalty. [ 30 ] The Commissioner’s January 8, 2019 decision contains seven reasons for imposing an administrative penalty, which I quoted in the previous

section of my reasons. However, the Commissioner did not explain why he changed his view of the appropriate penalty from $1,000 plus repayment of $1,955 set out in his October 23, 2018 letter to $6,000 with no repayment set out in his January 8, 2019 decision. [ 31 ] On October 17, 2018 and October 22, 2018, an investigator working for the Commissioner prepared first an initial and then a revised investigation report. The initial report recommended an administrative penalty of $5,865. The revised report recommended an administrative penalty of $1,000 plus return of the contribution.

The proposed penalty in the Commissioner’s October 23, 2018 letter is essentially the same as the investigator recommended in her October 22, 2018 revised report. [ 32 ] The Federation submits that the Commissioner committed a palpable and overriding error by failing to provide reasons for increasing the penalty from what he proposed in his October 23, 2018 letter. In support of this position, the Federation cites Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 at para 79 :

Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and awful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power: [ 33 ] Later in that decision, at para 91, the Supreme Court of Canada wrote: A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection.

That the reasons given for a decision do "not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred" is not on its own a basis to set the decision aside: Newfoundland Nurses , at para. 16.

The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings. [ 34 ] There are several aspects of this case which bear on whether the Commissioner committed a palpable and overriding error in failing to explain increasing the administrative penalty from what he initially proposed. • First, the Commissioner had no statutory obligation to advise the Federation what penalty he was considering. • Second, the Commissioner’s October 23, 2018 letter uses tentative language: “proposed penalty”, “initial assessment” and “I am considering”. • Third, the Federation made no submissions regarding the amount of any penalty in its November 21, 2018 letter. • Fourth, the Commissioner had no statutory obligation to provide reasons for his decision on penalty.

Section 51.01(3) of the Act specifically requires that a notice of administrative penalty include four things, none of which is reasons for the penalty imposed. • Fifth, the Commissioner’s decision specifically addresses each of the factors he was required to consider pursuant to

section 51.01(4) of the Act . • Sixth, both the initial proposed penalty of $1,000 plus repayment of $1,995 and the penalty ultimately imposed of $6,000 are at the low end of the scale, given the statutory maximum of $100,000. • Seventh, no precedent cases of administrative penalties imposed under the Act were cited either to the Commissioner or to me, which suggests there were few, if any, benchmarks to guide the Commissioner in setting the administrative penalty, beyond the factors set out in

section 51.01(4) of the Act . [ 35 ] Each of those aspects weighs against a finding of palpable and overriding error by the Commissioner in failing to provide reasons for the increased penalty. [ 36 ] None of the cases cited by the Federation on this point is persuasive, partly because none of them deals with providing reasons for the amount of a penalty. • In Jakutavicius v Canada (Attorney General) 2011 FC 311 the decision maker made a finding of good faith by an employer based solely on the employer’s success in having a grievance upheld. That was not logical.

In the case before me the Commissioner examined each of the factors he was required to consider and settled on a higher monetary penalty than he had originally proposed, but still a relatively low one in the context of the $100,000 maximum. There is nothing illogical about that. • In Johnstone v Canada (Attorney General) 2007 FC 36 the Human Rights Commission found that the applicant had voluntarily accepted 30 hours of work per week in the face of its investigator’s finding that it was forced upon her by her employer, but the Commission offered no reasons for that finding.

The case before me is different in that the Commissioner did provide reasons for his decision regarding the penalty imposed. Furthermore, the Commissioner’s investigator initially recommended an administrative penalty of $5,865, which very close to the $6,000 penalty ultimately imposed by the Commissioner. • In Canada (Minister of Public Safety and Emergency Preparedness) v Iyile 2009 FC 700 an Immigration Tribunal reached a conclusion opposite to that of a previous tribunal in the same case, without providing reasons. That is not what happened in the case before me.

The Commissioner’s October 23, 2018 letter was not a decision; it was notice of the substance of the allegations, as required by

section 44.97(3) of the Act , together with notice of a proposed penalty. The October 23, 2018 letter was clearly not a decision, but rather an invitation to the Federation to make submissions before the Commissioner made a decision. • In Downey v Canada (Minister of Public Safety) 2011 FC 116 the Minister of Public Safety denied Mr. Downey’s request to transfer from a U.S. prison to a Canadian Prison. The Minister did so with scant reasons and in the face of his department’s advice that the information it had obtained did not support the conclusion that Mr. Downey posed a threat to Canada or would commit

an act of terrorism or organized crime. The case before me is not like that. The Commissioner’s decision was consistent with the recommendations of his investigator and with his proposed finding and penalty. An increase in the amount of the penalty does not make it inconsistent. [ 37 ] The absence from the Commissioner’s reasons of an explanation for increasing the penalty from what he originally proposed was not a palpable and overriding error. 6. Conclusion [ 38 ] None of the three grounds of appeal relied upon by the Federation is established. I dismiss the appeal. Each party shall bear their own costs because they each advised at the hearing that they are not seeking costs.

Heard on the 26 th day of October, 2023 Dated at the City of Edmonton, Alberta this 3 rd day of January, 2024. G.S. Dunlop J.C.K.B.A. Appearances: Bruce Hallsor, K.C. and Spencer Evans Crease Harman LLP for the Applicant, Canadian Taxpayers Federation Joseph Redman and Elizabeth England Shores Jardine LLP for the Respondents, Alberta (Election Commissioner) and Alberta (Chief Electoral Officer) Leah McDaniel Alberta Justice for the Respondent, Minister of Justice and Solicitor General (Did not take

part in appeal)