Gillian Pearson Applicant And: Bruce Chaulk, Office of the Chief ElectoRal Officer of the Province of Newfoundland v. Labrador, 2021 NLSC 49

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Pearson v. Newfoundland and Labrador (Chief Electoral Office ) , 2021 NLSC 49 Date : April 9, 2021 Docket : 202001G0955 Between: Gillian Pearson Applicant And: Bruce Chaulk, Office of the Chief ElectoRal Officer of the Province of Newfoundland and Labrador Respondent Before: Justice Donald H. Burrage On Judicial Review From: A Decision of the Chief Electoral Officer dated 28 January 2020 Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: 18 March 2021

Summary: The decision of the Chief Electoral Officer to deny the Applicant reimbursement of her campaign expenses and nomination fee, as

incurred in the 16 May 2019 provincial general election, was reasonable. The Applicant filed her financial statement and auditor’s report outside of the four month statutory deadline and, as such, was not entitled to reimbursement. Appearances: Caitlin M.G. Urquhart Appearing on behalf of the Applicant Andrew A. Fitzgerald Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Bildhauer v. Alberta (Chief Electoral Officer) , 2017 ABQB 54 ; Mandel v. Alberta (Chief Electoral Officer) , 2019 ABQB 157 STATUTES CONSIDERED: Elections Act, 1991 , S.N.L. 1992, c. E-3.1 ;

Interpretation Act , R.S.N.L. 1990, c. I-19 ; Election Finances and Contributions Disclosure Act , R.S.A. 2000, c. E-2 REASONS FOR JUDGMENT Burrage, J. : INTRODUCTION [ 1 ] The Applicant, Gillian Pearson, seeks judicial review of a decision of the Chief Electoral Officer (CEO) to deny reimbursement of her nomination fee and campaign expenses, as incurred in the 16 May 2019 provincial general election. the facts [ 2 ] The material facts underlying the within application are not in dispute. [ 3 ] Ms.

Pearson was a first time candidate in the district of Mount Pearl-Southlands, in the provincial general election on 16 May 2019. She was not elected, but achieved nearly 25% of the popular vote in that district. [ 4 ] Pursuant to the Elections Act, 1991 , S.N.L. 1992, c. E-3.1 [1] (the “ Act ”), a candidate who receives 15% or greater of the popular vote is entitled to be reimbursed for a portion of their campaign expenses, upon filing with the CEO an acceptable financial statement, together with an auditor’s report, within four months after polling day.

Upon meeting the filing requirements all candidates are entitled to a refund of their nomination deposit. [ 5 ] On 8 July 2019 the CEO provided Ms. Pearson with a form entitled “Issue Record of Official Receipts for Income Tax Purposes and Filing Date Acknowledgement.” This form, as signed by Ms.

Pearson on that date, reads, in part: I acknowledge and certify receipt of the above noted “Official Receipts for Income Tax Purpose from Elections Newfoundland and Labrador and acknowledge that the filing deadline for financial statements and supporting schedules is September 16, 2019. [emphasis in original] [ 6 ] On 11 September 2019 Ms. Pearson received an email from her political party, reminding her that the deadline to file a financial return was 16 September 2019. According to Ms.

Pearson, prior to this notification both she and her Chief Financial Officer (CFO) mistakenly believed the deadline was in October. [2] [ 7 ] Faced with the impending deadline, Ms. Pearson agreed to pay her auditor an additional fee in order to expedite preparation of the audit. [ 8 ] The CFO for Ms. Pearson received the audit on 16 October 2019, together with the required financial statements and supporting schedules, and filed it the same day with the CEO, one month past the 16 September 2019 deadline. [ 9 ] On 28 January 2020 Ms.

Pearson was informed in correspondence from the office of the CEO that due to the late filing she was not eligible for reimbursement of her nomination deposit, or campaign expenses [3] . [ 10 ] A total of 16 candidates in the 16 May 2019 general election missed the 16 September 2019 filing deadline for financial

statements and schedules. All forfeited their nomination fee as a consequence. Of the 16 candidates, six would have been entitled to reimbursement of a portion of their campaign expenses. However, as a result of missing the deadline no reimbursement was issued. [4] Decision of the CEO [ 11 ] The correspondence of 28 January 2020 constitutes the decision, with reasons, of the CEO. It reads: RE: Gillian Pearson Campaign-Mount Pearl-Southlands-General Election May, 16, 2019 We wish to advise that our review of the campaign period financial statements for your candidate is complete and the information you have filed satisfies the provisions of

Part III of the Elections Act, 1991 . Enclosed is a copy of the revised Candidate statement of income and expenses for your files. The campaign financial statements were filed with this office after the statutory deadline of September 16, 2019. Therefore, the campaign is not eligible for the election expense reimbursement and the $200 nomination deposit held in trust by this office as part of your candidate’s nomination package is forfeit. The Chief Electoral Officer will retain the nomination deposit for remittance to the Department of Finance.

In accordance with Subsection 302(9) of the Act , Feltham and Associates will receive a payment of $500, covering the auditor’s subsidy. This payment is issued directly from the Department of Finance. Thank you for your cooperation and attention in providing the required information and documentation to the Chief Electoral Officer. [ 12 ] The decision of the CEO was based on his

interpretation of the Act . Sections 312 , 304 and 302 (

b) are central to that decision. [ 13 ]

Section 312 reads: 312 .

(1) A candidate who receives at least 15% of the popular vote or who is elected by acclamation is entitled to be reimbursed by the Chief Electoral Officer for 1/3 of his or her actual campaign expenses to a maximum of 1/3 of the expense limit.

(2) A candidate is not entitled to be reimbursed for expenses under subsection (1) unless his or her chief financial officer has filed a financial statement of receipts and expenses as required by

section 304, together with the auditor's report as required by subsection 302(6), and the Chief Electoral Officer certifies in writing that the statement meets the requirements of this Part.

(3) Where a candidate's financial statement shows a deficit and he or she is entitled to be reimbursed for expenses under subsection (1), the money payable to his or her chief financial officer shall be first applied by the chief financial officer to discharge the debts creating the deficit, and to the extent the money is not sufficient to pay all the debts, the debts shall be ratably reduced. [emphasis added] [ 14 ]

Section 304, in turn, reads: 304 . (1)The chief financial officer of every registered party or candidate shall, within 4 months after polling day , file with the Chief Electoral Officer a financial statement of income and expenses of the party or candidate for which he or she acts relating to the election, together with the auditor's report as required by subsection 302(6 ) .

(2) In relation to a by-election, subsection (1) applies only to registered parties that received contributions or made expenditures in relation to the by-election and to candidates at the by-election [emphasis added] [ 15 ] Finally, subsection 302(6) reads: 302(6) The auditor appointed under subsection (1) or (2) shall make a report to the chief financial officer of a registered party or candidate that appointed him or her in respect of the financial statements, as required by sections 303 or 304 , and shall make an examination according to generally accepted accounting principles that will enable him or her to state in his or her report whether in his or her opinion the financial statement presents fairly the information contained in the accounting records on which the financial statement is based.

[emphasis added] [16] Pursuant to s. 312(1) a candidate who receives more than 15% of the popular vote is “entitled to be reimbursed” a portion of hisor her actual campaign expenses. The candidate’s entitlement is not absolute, however, but comes with two important qualifications. First, pursuant to s. 312(2) the CFO for the candidate is to file a financial statement of receipts and expenses, “as required by s. 304”,together with the auditor’s report “as required” by s. 302(6).

Section 304, in turn, provides that the required financial information “shall”be filed with the CEO “within 4 months after polling day.” Second, the financial information provided must meet the requirements ofPart III of the Act, as certified in writing by the CEO. A candidate who fails to meet both of these requirements is “not entitled to bereimbursed for expenses” under s. 312(1). [17] The financial information provided by the CFO for Ms. Pearson met the second requirement, as confirmed by the CEO in the28 January 2020 letter: the information you have filed satisfies the provisions of

Part III of the Elections Act, 1991. [18] However, the financial information was not filed until 16 October 2019, 5 months after polling day, prompting the CEO toconclude that the “statutory deadline” of 16 September 2019 had not been met. For this reason the CEO decided that Ms. Pearson wasnot eligible for the election expense reimbursement, or the nomination deposit: The campaign financial statements were filed with this office after the statutory deadline of September 16, 2019.

Therefore, thecampaign is not eligible for the election expense reimbursement and the $200 nomination deposit held in trust by this office as part ofyour candidate’s nomination package is forfeit. [19] The CEO thus interpreted the 4 month statutory deadline as requiring strict compliance, such that a failure to file within thistimeframe rendered the candidate ineligible for reimbursement. the standard of review [20] The parties submit that the standard of review of the decision of the CEO is that of reasonableness. I agree.

There is no reasonin this case to depart from the presumption of the reasonableness standard of review. This matter did not proceed as a statutory appeal. In addition, the decision of the CEO does not give rise to any constitutional questions, general questions of law of central importance tothe legal system as a whole, or questions regarding the jurisdictional boundaries between administrative bodies (Canada (Minister ofCitizenship and Immigration) v. Vavilov, 2019 SCC 65). issue [21] This judicial review thus asks the following question: Was the decision of the CEO to deny Ms.

Pearson reimbursement of hernomination deposit and campaign expenses reasonable? analysis [22] The decision of the CEO involves matters of statutory

interpretation. In this circumstance, in applying the reasonablenessstandard this court is not to undertake a de novo analysis of the question, or ask what in its review the correct decision would have been. Rather, the approach must respect the legislature’s intent and assume that those who interpret the statute do so in a manner consistentwith the modern principle of statutory

interpretation (Vavilov, at paras. 117, 118): 117 A court interpreting a statutory provision does so by applying the "modern principle" of statutory

interpretation, that is, that thewords of a statute must be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, the object of the Act, and the intention of Parliament": Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R.27(S.C.C.) , at para. 21, and Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 (S.C.C.), at para. 26, bothquoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also providedguidance by way of statutory rules that explicitly govern the

interpretation of statutes and regulations: see, e.g.,

Interpretation Act, R.S.C.1985, c. I-21. 118 This Court has adopted the "modern principle" as the proper approach to statutory

interpretation, because legislative intent can beunderstood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context:Sullivan, at pp. 7-8. Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that hasregard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrativedecision maker.

An approach to reasonableness review that respects legislative intent must therefore assume that those who interpret thelaw — whether courts or administrative decision makers — will do so in a manner consistent with this principle of

interpretation. [23] Consistent with Vavilov, our

Interpretation Act, R.S.N.L. 1990, c. I-19 provides in s. 16 that every provision of every Act andRegulations “shall receive the liberal construction and

interpretation that best ensures the attainment of the objects of the Act, Regulationor provision according to is true meaning.” [24] The fact the CEO did not engage in a formalistic statutory

interpretation exercise is not fatal. Nevertheless, the merits of theCEO’s

interpretation must be consistent with the text, context and purpose of the provision. Legislative intent can be understood only byreading the language chosen in light of the purpose of the provision and the entire relevant context (Vavilov, at paras. 120-121). 120 But whatever form the interpretive exercise takes, the merits of an administrative decision maker's

interpretation of a statutoryprovision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutoryinterpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are

"precise and unequivocal", their ordinary meaning will usually play a more significant role in the interpretive exercise: Canada Trustco Mortgage Co. v. R. , 2005 SCC 54 , [2005] 2 S.C.R. 601 (S.C.C.), at para. 10 . Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements. 121 The administrative decision maker's task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an

interpretation it knows to be inferior — albeit plausible — merely because the

interpretation in question appears to be available and is expedient. The decision maker's responsibility is to discern meaning and legislative intent, not to "reverse-engineer" a desired outcome. [ 25 ] Turning first of all to the text of ss. 312 and 304. Where the language used is precise and unequivocal, the ordinary meaning takes on a more significant role in the interpretive exercise. [ 26 ] Pursuant to s. 312(1) a candidate who receives at least 15% of the popular vote, or who is elected by acclamation, is “entitled to be reimbursed” by the CEO. [ 27 ] “Entitled” is not a defined term under the Act . It does find expression, however, in other provisions falling within

Part III: • trust funds are to be held on deposit with a financial institution “lawfully entitled” to accept such deposits (s. 271(b); s. 278(3)(h)) • documents filed under

Part III are public records and a person requesting extracts is “entitled” to copies upon paying the prescribed fee (s. 277) • the public is “entitled” to inspect the records of a publisher during normal business hours who publishes a political advertisement (s. 288(3)) • an auditor appointed under s. 302 is “entitled” to require from the CFO information and explanation necessary to complete the auditor’s report (s. 302(8)) [ 28 ] As employed in the Act the word “entitled” is in keeping with its ordinary meaning, to have a right to something. In this case a statutory right.

The beneficiary of the entitlement, (i.e. right) may or may not choose to exercise the enfranchisement. [ 29 ] The corollary is that a person who is “not entitled” to something, no longer has a right to that something. This is the

interpretation adopted by the CEO and is clearly defensible in light of the language of the text. [ 30 ] What then of the context and purpose of the financial filing requirements. How does the ordinary meaning of the text square with the Act as a whole? [ 31 ] Sections 312 and 304 form a part of a broader legislative scheme dedicated to ensuring the integrity of the electoral process and public confidence in that process.

Part III of the Act , “Election Finances”, does so by placing parameters around what qualifies as a political contribution and election expense, thereby leveling the playing field in times of an election. [ 32 ] The CFO for the candidate serves a crucial role in this process, acting as the “gatekeeper” in the solicitation of political contributions (s. 294) and authorization of election expenses (s. 305). In recognition of this role all political parties and candidates must appoint a CFO (s. 298). Pursuant to s. 298(4)(

d) the CFO shall ensure, inter alia : (

d) that the financial statement as required by sections 303 and 304 together with the auditor's report on them are filed with the Chief Electoral Officer in accordance with this Part; and [ 33 ] Pursuant to s. 302 all candidates must also appoint an auditor and pursuant to s. 302(6) the auditor is required to make a report to the CFO of the registered party or candidate that appointed him or her in respect of financial statements, as required by ss. 303 or 304. [ 34 ] Public confidence in the electoral process is further maintained through transparency and accountability in the reporting of election finances. [ 35 ] Transparency is promoted, in part, through the treatment of all documents filed under

Part III as “public records” available for inspection (s. 277), the publication of election receipts, expenses and subsidy in the Gazette (s. 273(1)(h)), and the requirement to publicly disclose contributions exceeding $100 (s. 299). [ 36 ] In terms of accountability, in addition to s. 312(2) the consequences for failing to comply with the financial filing requirements in s. 304 finds expression in two other provisions in

Part III. [ 37 ]

Section 320 provides that a CFO who “willfully or through neglect” fails to file a financial return with the CEO within the time required by s. 303 or 304, is liable to a $50 per day fine, or penalty. [ 38 ] Pursuant to s. 280(1) the CEO may deregister a political party where the CFO of the party fails to comply with the filing requirements in s. 303 or 304. Such a party is not eligible for registration until the financial statements as required by these provisions have been filed with the CEO, together with an auditor’s report, as required by subsection 302(6) (s. 281). [ 39 ] It is clear from a reading of

Part III as a whole that in order to instill public confidence in the electoral process the legislature was concerned not only with the disclosure of financial information, but the timely disclosure of such. The legislature thus saw fit to impose consequences for non-compliance on each participant in the process, whether they be political parties, CFO’s or candidates. Political parties risk being struck from registration under the Act , CFO’s face the prospect of a fine, candidates face the loss of their nomination fee and reimbursement of campaign expenses.

[ 40 ] I thus conclude that not only is the language of s. 312 clear, but the

interpretation afforded this provision by the CEO and entirely consistent with the Act as a whole. It is an

interpretation that is hardly “untenable in light of the relevant factual and legal constraints that bear on it” ( Vavilov , para. 101 ).

I conclude that it is reasonable. [ 41 ] While the foregoing conclusion is sufficient to dispose of this application, I turn to consider the submissions of the Applicant. [ 42 ] The Applicant seeks to interpret “shall” in s. 304 as directory, rather than mandatory, such that “lack of timeliness does not affect the Financial Return.” As interpreted by the Applicant, there are no consequences for candidates who file their financial information beyond the 4 months prescribed in s. 304.

Based on this logic, if the candidate is entitled to reimbursement, having met the requirements of s. 312(1), the candidate remains entitled, provided only that the CEO certify in writing that the information provided meets the substantive requirements of

Part III. As Ms. Pearson’s financials ultimately met these requirements, the decision of the CEO to deny her reimbursement was unreasonable. [ 43 ] I accept the Applicant’s submission that late filing does not affect the “validity of the Financial Return”. The Act contemplates the possibility that financial returns may be filed outside of the four month time period in s. 304 , but there are consequences for doing so. [ 44 ] Neither of these consequences affects the validity, or in other words, efficacy, of the financial return with its accompanying auditors report, once eventually filed.

Indeed, in the 28 January 2020 correspondence the CEO confirmed that Ms. Pearson’s financial statements were “complete” and the information filed satisfied the requirements of

Part III of the Act . [ 45 ] The Applicant argues that s. 309 supports her

interpretation, as the legislature could have specifically said that the failure to comply results in forfeiture, as it did in s. 309(2): A person who fails to comply with subsection (1) [the 60 day requirement for filing] forfeits his or her right to recover the claim [for election expenses]. [ 46 ]

Section 312, on the other hand speaks on the candidate’s lack of entitlement. With respect, in the context of the Act , the distinction is without a difference. [ 47 ] The Applicant also submits that the “jurisprudence suggests that various jurisdictions have addressed late filing with grace periods, availability of extension from the CEO and/or the Courts, and many have simply instituted late filing fees [5] .” [ 48 ] However, the Alberta decisions, as relied upon by the Applicant for this proposition ( Bildhauer v. Alberta (Chief Electoral Officer) , 2017 ABQB 54 ; and Mandel v.

Alberta (Chief Electoral Officer) , 2019 ABQB 157 ) are distinguishable. Neither involved judicial review, as s. 44 of the applicable legislation, the Election Finances and Contributions Disclosure Act , R.S.A. 2000, c. E-2 (the “ EFCDA ”), expressly provided for an application to the Court of Queen’s Bench for relief from strict compliance with the filing deadlines in ss. 43 , 43.01 , 43.02 and 43.1 of the EFCDA . This provision gave rise to a judicial test of mitigating circumstances to be considered by the Court on such an application ( Mandel , at para. 43 ).

Our Act does not contain a comparable provision. [ 49 ] Finally, there can be no quarrel with the Applicant’s submission that true democracy must be accessible to all, that it is important to attract qualified candidates from all walks of life to run for public office, and the important role volunteers such as CFO’s play in the process. Those who run for public office often do so at great cost, financially and personally. [ 50 ] However, these truisms are of no assistance in determining if the decision of the CEO was reasonable.

There is no evidence before me that the financial disclosure requirements of the Act , and specifically the requirements in ss. 312 and 304 , impair the right to vote, or cast a chilling effect on those wishing to run for office, or to volunteer. Further, even if there were such an effect, this is for the legislature to address, not this Court. disposition [ 51 ] For the foregoing reasons the Application is dismissed. As for costs, counsel for the CEO took the position that the electoral process would benefit from the Court’s ruling and, as such, the CEO is not seeking costs.

For this reason, there will be no Order for costs. _____________________________ Donald H. Burrage Justice