2017 QCCA 61, 2017 QCCA 61

McCann c. Municipality of Pontiac 2017 QCCA 61 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026140-160 (550-17-008771-154) DATE: January 25, 2017 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. EDWARD McCANN APPELLANT - Defendant v.

MUNICIPALITY OF PONTIAC RESPONDENT - Plaintiff and THE CHIEF ELECTORAL OFFICER OF QUEBEC IMPLEADED PARTY – Impleaded Party JUDGMENT [ 1 ] Edward McCann appeals a judgment of the Superior Court, District of Gatineau, (the Honourable Mr Justice Pierre Dallaire presiding), rendered from the bench on May 11, 2016, with reasons transcribed dated June 28, 2016, which granted the Municipality of Pontiac’s motion to declare him disqualified from holding elected municipal office pursuant to the Act respecting elections and referendums in municipalities , and dismissed his cross-demand, the whole with costs; [ 2 ] For the reasons of Kasirer, J.A., with which Morissette and Bich JJ.A. agree, THE COURT : [ 3 ] DISMISSES the motion to dismiss the appeal, without costs; [ 4 ] ALLOWS the appeal for the sole purpose of striking the second conclusion in the formal judgment set forth in paragraph [150] and replacing it with the following: DÉCLARE le défendeur inhabile à exercer la fonction de membre du conseil de la Municipalité de Pontiac pour laquelle il a été élu le 8 novembre 2015, et ce, pour toute la durée de son mandat; [ 5 ] CONFIRMS the formal judgment of the Superior Court in all other respects; [ 6 ] With no order as to costs on appeal.

YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. Mtre Jean-Carol Boucher Boucher & Associés For the Appellant Mtre Michel Lafrenière RPGL Avocats For the Respondent

Mtre Olivier Cournoyer Boutin Chief Electoral Officer of Quebec For the Impleaded Party Date of hearing: October 25, 2016 REASONS OF KASIRER, J.A. [ 7 ] So that a candidate cannot rely on a financial advantage – even his or her own money – to influence a municipal election unfairly, the Act respecting elections and referendums in municipalities [1] sets strict rules on amounts that may be contributed to and spent on political campaigns.

The law does allow an independent candidate to lend a modestly greater sum of money to his or her own campaign but requires the loan be repaid with authorized contributions from electors and statutory reimbursements of election expenses from the public purse. In this way, a candidate cannot easily “buy” election to office by overspending on, or over-contributing to, his or her campaign. [ 8 ] In this appeal, an independent candidate for mayor of a small town, authorized to act as his own official representative and official agent for the election, lent money to his campaign.

The candidate thus appeared to be, in name at least, at once debtor and creditor of the loan.

Rather than arranging for repayment of the loan in keeping with the requirements of the Act , he took the position that the debt – an amount substantially more than the limit on campaign contributions – was extinguished by “confusion” pursuant to the general rules of the law of obligations. [2] [ 9 ] If this argument were to stand, the policy of the law regulating campaign financing would be largely frustrated, at least insofar as it would allow, indirectly, independent candidates to contribute more money to their campaign than the amount permitted by law.

At trial, the judge would have nothing of it, rejecting the argument that the debt was extinguished by confusion. I share his view.

But in so deciding, an important aspect of the general law of property – circumstances in which a person’s patrimony can be divided or appropriated to a purpose – must be clarified in light of rules on electoral financing. *** [ 10 ] Edward McCann has appealed a judgment of the Superior Court granting in part the Municipality of Pontiac’s motion to declare him disqualified ( inhabile in French) from holding elected municipal office for four years pursuant to sections 64 , 65 , 300(1) , 308 and 474 of the Act . [3] [ 11 ] The respondent filed a motion to dismiss the appeal, alleging that Mr McCann’s proceedings in this Court are abusive and that, in any event, the appeal has no reasonable prospect of success.

The motion was referred to this bench. [4] [ 12 ] The Chief Electoral Officer of Quebec has intervened, asking that the appeal be dismissed and that the Court confirm the judgment a quo . I Context [ 13 ] In the main, the facts are not in dispute.

The parties proceeded in the Superior Court on the basis of a series of admissions relating to the appellant’s political activities in Pontiac over the previous two elections. [ 14 ] Pontiac is a municipality with a population of about 6,000, situated north of Gatineau, Quebec. [5] Nearing the end of his term as mayor, the appellant announced that he would seek a new mandate in the November 3, 2013 election. He stood as an authorized independent candidate, having no affiliation with a political party. [ 15 ] For the purposes of his campaign, the appellant availed himself of

section 164 of the Act , as amended in 2005, which allowed him, as an independent candidate, to act as his own “official agent”. [6] He was also his own “official representative” (s. 382, para. 3). [7] Contributions to a candidate can only be made through the official representative and only a person having that quality can contract loans for the campaign (ss. 432 and 446).

Only a candidate’s official agent can incur election expenses and he or she must pay the cost of those expenses out of a designated election fund (ss. 455 to 458). [ 16 ] The appellant thus wore four hats in his campaign for mayor: he was an elector of Pontiac; he was an independent candidate for office; he was the official agent of his campaign; and he was his own official representative. [ 17 ] The appellant lost his bid for re-election.

On November 3, 2013, his opponent Roger Larose was elected mayor. [ 18 ] During the campaign, he received a single “contribution” [8] of $150 from an elector and incurred election expenses of $4,313.21. Apart from this $150, the appellant used his own money to pay the various persons who provided goods and services to his campaign. He noted in argument that all these creditors have been paid in full. [ 19 ] The appellant filed the required financial report of his election expenses within 90 days of polling day.

It recorded a deficit of $4,163.21, i.e. a shortfall of contributions received against election expenses incurred. [ 20 ] If the appellant’s payment of expenses were to be characterized as “contributions” to his campaign, the amount would significantly surpass the limit set in the Act .

Section 431 provides that any elector may contribute $300 to an independent candidate each fiscal year. Paragraph 2 of

section 431 allows that an independent candidate may contribute an additional amount of up to $700 to his or her own campaign during the fiscal year of the election. Indeed it is uncontested that the appellant paid more than $4,000 of campaign

expenses out of his own pocket. [ 21 ] A representative of the Municipality wrote to the appellant on August 18, 2014 to advise him that, in order to rectify matters and to finalize his financial report for the 2013 election, the appellant could lend money to his campaign to cover the amount of the deficit. To do so, he needed to fill out the standard-form loan agreement provided by the Chief Electoral Officer.

Where an elector – including an independent candidate – lends money to a campaign, and that loan is made for political purposes and at market rate, the loan is deemed not to be a contribution by section 428(4). As noted, however, the Act requires that the loan be repaid with contributions from electors and the statutory reimbursement to the candidate for election expenses ( s. 449 ).

Once a loan in the amount of the deficit was made to the campaign by the appellant, wrote the representative, a reimbursement of election expenses from the general fund of the Municipality of $1,013.60 would be made in accordance with the Act.

To repay the balance of $3,149.61 due, the appellant would have to secure further contributions from qualified electors prior to December 31, 2004 and remit the additional financial report required by law. [ 22 ] On the strength of the suggestion by the Municipality, the appellant signed a loan agreement as both borrower and lender on August 20, 2014. [ 23 ] The agreement stipulated that “Edward McCann”, as official representative of independent candidate Edward McCann, borrowed an interest-bearing amount of $4,163.21 from “Edward McCann”, elector of the Municipality.

The terms for repayment of the capital and interest of the loan were stipulated as “Remboursement municipal + contributions”, in keeping with

section 449 of the Act . [ 24 ] In the ensuing months, the appellant obtained no further contributions from electors. Representatives of the Chief Electoral Officer wrote again, urging him to file the additional report. The letter also explained that an independent candidate is required to have paid all debts arising from election expenses as of December 31 of the calendar year following that of the polling day. In the event the appellant failed to do so, he would be ineligible from holding municipal office pursuant to

section 65. [ 25 ] The appellant filed an additional report indicating that Edward McCann, as official representative, owed $3,149.61 to the lender, Edward McCann, on December 31, 2014. [ 26 ] That same day, a representative of the Chief Electoral Officer wrote the appellant once more to say that, given the balance due on the loan, he was “inéligible pour les 4 prochaines années”, referring to the rule in

section 65 of the Act . [ 27 ] In 2015, a by-election was called in Pontiac following the resignation of a municipal councillor. The appellant declared that he would stand for election as an independent candidate. Shortly thereafter, the Chief Electoral Officer wrote to say the appellant was ineligible to hold office until January 1, 2019, because debts from the previous election had not been paid. The appellant nevertheless filed nomination papers in which he declared under oath that he was not ineligible under the Act .

The Chief Electoral Officer then authorized him to stand as a candidate in the by-election, but noted by letter that such authorization did not constitute a recognition of his eligibility to hold municipal office. [ 28 ] The appellant was elected municipal councillor on November 8, 2015. [ 29 ] The Municipality subsequently filed suit, asking the Superior Court to declare the appellant disqualified from holding office as a member of council.

Pontiac took the position that as of December 31, 2014, the date at which all debts from the mayoralty election were to have been paid, there was a balance due on the loan owed to Edward McCann, elector, by Edward McCann, official representative.

This unpaid electoral debt resulted in his ineligibility over the period concerned, including the time of the by-election for the seat on council for which he must be disqualified pursuant to section 300(1). [ 30 ] In response, the appellant argued that because he was at once debtor and creditor of the loan made to his 2013 campaign, the debt had been extinguished by confusion. He had thus not failed to repay the loan, nor had he over-contributed to his previous campaign. The appellant was not ineligible from office, much less disqualified from the position to which he had been democratically elected in 2015.

II Judgment of the Superior Court [ 31 ] The Superior Court granted the motion and declared the appellant disqualified from holding municipal office for a period of four years from January 1, 2015. [ 32 ] The judge first observed that the appellant’s good faith was not in question.

While the authorities had written him prior to the by-election about the unpaid loan, these letters did not constitute a formal declaration of ineligibility, which can only be made by judgment. [ 33 ] Noting that $3,149.61 remained outstanding on the loan made to the 2013 campaign on December 31, 2014, the judge decided that the appellant was ineligible from holding office for a four-year period pursuant to sections 65 and 474 of the Act . [ 34 ] The appellant’s argument that the debt had been extinguished by confusion was rejected.

When the Act was amended in 2005 to authorize an independent candidate to act as his or her own official agent, the limits relating to campaign financing remained in place.

To allow extinction of the debt by confusion would defeat the legislature’s purpose of promoting financial equity in municipal elections. [ 35 ] The judge rejected the argument that the provisions of the Civil Code on confusion took precedence over the Act which he characterized as a statute of public order from which the Code cannot derogate. [ 36 ] He added that confusion did not operate because the appellant signed the loan agreement in two distinct qualities – as official agent and representative and as elector – with separate patrimonies, such that there was no identity between debtor and creditor.

His personal funds could not be mixed with the funds held by him for the campaign.

III Substance of the Appeal [ 37 ] The appellant argues that the judge erred in declaring him disqualified to hold municipal office for three principal reasons: (

a) the debt he contracted pursuant to the loan was extinguished by confusion; (

b) that debt was prescribed; and (

c) the appellant’s conduct did not have a negative impact on the democratic process. [ 38 ] I propose that all of these grounds of appeal be rejected. (

a) Is the debt extinguished by confusion? [ 39 ] The appellant has renewed his argument that the debt he contracted for paying his election expenses was extinguished by confusion pursuant to

article 1683 C.C.Q. As an independent candidate acting as his own official agent and representative, the appellant does not have, contrary to what the judge wrote, two separate patrimonies.

Moreover, he argues that the rules on confusion in the Civil Code of Québec apply to matters of campaign financing, notwithstanding the terms of the Act , as part of the law of general application in the province (the “ droit commun ”). [ 40 ] The appellant further contends that the present circumstance has arisen as a result of an “oversight” by the legislature when the Act was amended in 2005 to allow an independent candidate to designate himself or herself as official agent and representative. Prior to that amendment,

section 446 provided that only the official representative could contract a loan for a candidate. When the law was amended to allow an independent candidate to act as his or her own official representative,

section 446 went unchanged, leaving independent candidates who made loans to their own campaigns, like the appellant, at once debtor and creditor of the obligation. Nothing in the Act suggests that the rules on confusion in the Civil Code were ousted in 2005 and it would be unfair that he should be disqualified as a result of this legislative error. *** [ 41 ] I agree with the judge that the debt on the loan was not extinguished by confusion. [ 42 ] First, the conditions for “extinction” of a debt by confusion should be recalled. [9] [ 43 ] For the appellant to avail himself of

article 1683 C.C.Q., the law requires that the qualities of debtor and creditor be “united in the same person”.

What the text of the Code leaves unsaid, or at least understated, is that uniting the qualities of debtor and creditor requires not only that the claim and the debt be in the hands of the same person, but that they be in the same patrimony. [10] [ 44 ] The twin requirements for confusion to extinguish a debt – unity of the person and unity of the patrimony – are well-established in Quebec civil law. [11] Because every person was understood to hold a single and indivisible patrimony under the Civil Code of Lower Canada , the two requirements generally spoke to a same reality since the person and the patrimony overlapped exactly. [12] When a person’s patrimony is divided or appropriated to a purpose as is permissible under the Civil Code of Québec , circumstances arise where the unity of the person and the unity of the patrimony do not coincide.

Article 2 , paragraph 2 C.C.Q. recognizes that a single person may have a patrimony divided into two or more parts, or one that stands detached from his or her personal patrimony, having been appropriated to a distinct purpose. [13] Such a division or appropriation has a fundamental impact on the requirements relating to confusion. [ 45 ] For confusion to obtain, the debt and the claim must be part of the same whole, understood as the same “legal universality” [14] in which assets answer for liabilities. Otherwise, even if the same person holds title to both, the claim is not charged with the performance of the debt. [15] This precludes extinction by confusion from taking place pursuant to

article 1683 C.C.Q. [16] Notwithstanding “unity of the person”, confusion does not operate because the debt and the claim are recorded in distinct patrimonies, or in distinct universalities within a divided patrimony. [ 46 ] A division or appropriation is possible, as

article 2, paragraph 2 C.C.Q. stipulates, “only to the extent provided by law / dans la seule mesure prévue par la loi”. The parties disagree as to whether such a provision was made in the Act . [ 47 ] Counsel for the Chief Electoral Officer submits that the Act recognizes a distinct legal universality for assets and liabilities held by independent candidate McCann associated with his political campaign for mayor in 2013. He argues that the “election fund” [17] is itself a patrimony by appropriation separate from the appellant’s personal patrimony.

The claim and the debt under the loan, both held by him, are thus in separate legal universalities such that there is no confusion. [ 48 ] The appellant objects strenuously to the idea that his patrimony has been divided or appropriated to a purpose distinct from that associated with his personal rights and obligations. He sees no legislative authorization to this end, in the Act or elsewhere. Consequently, he argues, confusion obtains between the debt and the claim. [ 49 ] I disagree with the appellant.

The judge’s intuition that there is a “separation of patrimonies” between Edward McCann, elector, and Edward McCann, official agent and representative of his campaign, was correct. In the appellant’s circumstances, the Act provides that a universality distinct from his personal rights and obligations be appropriated to a new purpose – that of financing a political campaign for municipal office – in a manner contemplated for by

article 2 , paragraph 2 C.C.Q. With respect for the contrary opinion, the rules in the Civil Code are not set aside because they are in conflict with the Act. Instead, confusion does not extinguish the debt because the separation of patrimonies means that the requirements of

article 1683 C.C.Q. have not been met. [ 50 ] The Act does authorize – indeed mandates – this separation when an independent candidate acts as his or her own official agent and representative, as is the case here. When the legislature amended

section 164 to permit an independent candidate to designate himself or herself as official agent and representative in an election, it implicitly recognized that part of the patrimony of the candidate could be appropriated to a new purpose within the meaning of

article 2, paragraph 2 C.C.Q. Contrary to what the appellant argues on this point, the amendment to

section 164 did not inadvertently “open the door to a confusion of patrimonies”. Instead, it provided for a regime by which rights and obligations held by the independent candidate, qua elector, would be separated from rights and obligations held by

the candidate, qua official agent and representative, the whole designed to limit contributions and spending on municipal elections. The legislature provides for the creation of a mass of assets and liabilities with a shared purpose – an affectation – of funding the candidate’s campaign within the parameters of what the legislature has determined to be financially fair elections.

This purpose justified the appropriation of a distinct legal universality of the rights and obligations in which campaign assets answer for campaign debts, at arm’s length from the appellant’s personal patrimony, but under his controlled administration. [ 51 ] The debt and the claim are indeed held by the same person but there are properly recorded in two distinct legal universalities – one associated with Edward McCann personally and the other with Edward McCann, as official agent and official representative. The debt and the claim are not subject to the same common pledge.

Given that the debt and the claim are not in the same patrimony, confusion cannot operate. There is unity of the person but no unity of patrimony such that the loan was valid and a condition for extinction by confusion is not met. [ 52 ] What is found in the patrimony of the candidate-official agent and representative, separate as it is from that of the candidate- elector? [ 53 ] The argument that the “election fund” is this separate patrimony by appropriation is, to my mind, only partly correct. The election fund defined in

section 364 is made up of monetary assets alone. A patrimony, including a divided patrimony and a patrimony by appropriation, is a legal universality extending to liabilities as well as assets and within which, pursuant to the purpose to which it is appropriated, assets answer for liabilities. [18] Moreover, the Act explicitly includes non-monetary patrimonial contributions made by an elector, including the independent candidate, among assets in this separate universality as a means of regulating campaign financing beyond cash gifts ( ss. 427(2) and (3) ).

The election fund is an important feature of this separate patrimony, and the direction that the fund be held in a separate bank account is a further indication of the importance the legislature places to keeping the candidate’s personal finances and campaign finances separate to ensure that the legislative purpose is best achieved. [19] But the election fund is not the patrimony, and indeed the presence or absence of a bank account for the fund does not in itself settle the matter of the existence of distinct patrimonies for Mr McCann, as elector, and Mr McCann as official agent and representative for his campaign. [20] [ 54 ] In furtherance of its objective of setting fair limits on campaign contributions and spending, the legislature has isolated this mass of assets – money in the election fund as well as in-kind contributions to the campaign – and called upon it to answer for the independent candidate’s election liabilities – namely the cost of election expenses (s. 457).

It is this relationship of unity between assets and liabilities that gives the mass the coherence that is characteristic of a distinct legal universality. [ 55 ] Liabilities in this mass are composed of election expenses, as defined principally in

section 451 to include the cost of goods and services that have been properly authorized by the official agent (s. 455). The capital value of the loan is a sum made available to the candidate to pay election expenses, but it is recorded as a debt of the candidate-official agent/representative owed to the candidate- elector because it is not a “contribution” (s. 428(4)). Indeed the loan can only be repaid from authorized contributions and reimbursements of expenses (s. 449), further confirming that it partakes of a distinct universality from that of the candidate’s personal assets and liabilities. [ 56 ] By directing in

section 457 that the official agent may only pay the cost of election expenses out of the election fund, the legislature indicates (in part at least) that, within this mass, assets answer for liabilities, as is the case for all legal universalities. [21] This finds further confirmation in the rule at

section 458, paragraph 1 which provides that no sums of money other than those collected in accordance with the statute may be paid into the election fund for the purposes of paying election expenses.

The election fund and other in-kind contributions to the campaign, and the debts arising out of election expenses, share an affectation – that of financing the campaign of an independent candidate within the authorized parameters set forth in the Act – that gives unity to the mass as what might be called an “election campaign patrimony”. [ 57 ] What happens at the end of the “election period” (defined in s. 364) is particularly telling. The Act is clear in its direction that any surplus contributions do not belong to the candidate personally. Should an independent candidate withdraw or die before polling day,

section 413 directs that the balance be made over to the general fund of the municipality. Where the independent candidate who stands for election has a surplus of contributions over expenses,

section 498 sets out a protocol for the disposition of this property. [22] Anything left over, at the end of the day, is remitted to the municipality. The independent candidate who acts as his or her own official agent and representative has powers of administration over the campaign patrimony and, at least as expressed in

section 498, a modest power of disposition, but does not own the property outright. While it is held by the candidate, the property is a separate legal universality that must conform to the dictates of a distinct affectation . [ 58 ] As for liabilities, all outstanding claims must, as a general rule, be paid by the official agent from the election fund following a claim presented within 60 days of the polling day (s. 467). Thereafter, the Act sets out a regime for payment by the treasurer of the municipality, but not by the independent candidate personally ( ss. 469 to 472 ).

The sanction imposed on the independent candidate for failure of his or her campaign to pay its debts – as the appellant has discovered – is ineligibility and potential disqualification from office and, in cases that merit stronger sanction, penal liability under the Act. [ 59 ] Are there instances in which an independent candidate would nevertheless be personally liable for campaign debts owed to third-party creditors? The question does not arise on the facts here given that, as noted, all suppliers to the appellant’s 2013 campaign have been paid.

My reasons should not be understood as excluding the possibility that, exceptionally, a candidate be exposed to personal liability to third-party creditors in good faith. But even if personal liability did fall to a candidate for campaign expenses, where those amounts should have been paid from the election fund under the Act , the sanction of ineligibility would, in principle, still apply.

That said, I expressly leave the matter of a candidate’s personal liability to third parties for another day. [ 60 ] A sure sign that the mass of campaign assets and liabilities is regulated by the Act as a distinct legal universality, rather than a simple universality of fact, is found in the rules allowing a candidate to conclude gifts and loans with his or her campaign, even where he or she acts as official agent and representative.

In the absence of separate legal universalities associated with “Edward McCann, elector” and “Edward McCann, candidate, official agent and representative”, a gift or loan that the independent candidate makes “to himself” would be invalid in law. The legislature recognizes, however, that a candidate can make a contribution to his or her own campaign by gift

and lend money to his or her own campaign by contract. [ 61 ] A “contribution” is defined, in part, in subsection 427(1) as a “any gift of money to a party or to a candidate / le don d’une somme à un parti ou à un candidat ”, and expressly includes, in subsection (3) “any money, goods or services furnished by the candidate himself in view of his election […] / la somme, le bien ou le service fourni par le candidat lui-même en vue de son élection […]”. [23] The civil law ordinarily requires that a gift inter vivos bring about the transfer of property by gratuitous title by one person, the donor, to another person, the donee [24] , in such a manner, to quote one venerable source, “[i]l [the donor] diminue son patrimoine pour augmenter celui de ce dernier [the donee]”. [25] But

article 2, paragraph 2 C.C.Q. creates the opportunity for an exception, or at least a nuance for this rule: in circumstances, as is the case under the Act , where the gratuitous transfer of property is made from one patrimony to another, both held by the same person, or from one fraction to another within a person’s divided patrimony. This is possible in the case of an elector who, as independent candidate acting as his or her own official representative, makes a contribution to his or her own campaign (see s. 427(1), 427(3), 430, and 433). The candidate qua elector is the donor.

The candidate qua official representative is the donee. The property passes from legal universality to another, both of which are held by the same person. [ 62 ] Key for this appeal is the Act ’s treatment of loans made by an independent candidate to himself or herself for the election. [26] The legislature allows and carefully regulates the manner in which an independent candidate acting as his or her own official representative can lend funds to a campaign.

When the appellant contracted the loan with himself, he was “wearing different hats” but, more importantly, engaging different legal universalities: that of Edward McCann elector, as the lender, and that of official representative of the candidate Edward McCann, as borrower (see ss. 428(4) and 446). When the appellant contracted the loan at the suggestion of the Municipality the debt was, from that time, in the separate legal universality associated with his campaign as independent candidate for mayor, abiding by a different affectation that that of his personal assets.

The same person – Mr McCann – was responsible for separate patrimonies or fractions of a single patrimony: that associated with the elector, in which the right of lender was recorded, and that associated with his campaign as represented by him as official representative, where the obligation of the debtor took shape. [ 63 ] Without this separation, the loan itself would not have been valid because, according to the definition of a loan of money in the Civil Code , a person cannot lend money to himself or herself. [27] However, where the law authorizes a division or appropriation of the lender’s patrimony to another purpose, the loan “to oneself” is possible. (I note that nowhere in the appellant’s argument does he question the validity of the loan made on August 20, 2014).

This does no necessary violence to the law of obligations in a legal system, like that of Quebec, where a person’s patrimony can be divided or appropriated to a purpose, as

article 2, paragraph 2 C.C.Q. recalls. [28] The debt and the claim are indeed held by the same person but they are properly recorded in two distinct legal universalities – one associated with Edward McCann personally and the other with Edward McCann, as official agent and official representative. There is unity of the person between debtor and creditor but no unity of patrimony. Not only was the loan validly contracted, but an essential condition for extinction by confusion has not been met. [ 64 ] This

interpretation of the Act is in keeping with the legislative objective to promote financial equality among candidates as a measure of a healthy democracy. [29] The judge was correct to say that the appellant’s position would result in the absurd circumstance whereby an independent candidate could invoke confusion to circumvent the limit on contributions to his own campaign set out in

section 431 , at least in the amount of authorized loans up to $10,000 ( s. 447.1 ). Moreover, in the case of a candidate for mayor in a municipality the size of Pontiac, the spending limit is $3,780, increased by an amount of $0.30 per elector (s. 465(1)).

The appellant’s confusion argument, which would allow a candidate to lend himself or herself $10,000 and then consider the debt extinguished by confusion, would run roughshod over that limit. [ 65 ] In addition, the appellant is wrong to suggest that the rules on confusion take precedence over the Act because of the status of the Civil Code as the droit commun for private law applicable in the province.

This represents a misapprehension of the concept of droit commun or “ jus commune ” spoken to in the Preliminary Provision of the Code, which recognizes, as a general rule, that the law found in the Code is “the foundation of all other laws / le fondement des autres lois”. [30] The judge was certainly not wrong to say that the legislature can choose to derogate from the provisions of the Code, including, presumably, the rules relating to extinction of obligations, and that rules of public order can apply even if they contradict provisions of the Civil Code. That is not, however, the case here.

The Act is not in conflict with the rules on confusion in the Civil Code. [ 66 ] Properly interpreted according to the method set out in the Preliminary Provision of the Code, the statute and the Code are not in conflict but in “harmony”. [31] The Act establishes a separate legal universality as expressly contemplated by

article 2, paragraph 2, C.C.Q. In this special statute, the legislature has authorized a divided or appropriated patrimony for the independent candidate to achieve its ends. This separate legal universality explains why the requirements for confusion in

article 1683 C.C.Q. are not satisfied. Compatible with the foundational rules on the patrimony in the Code, the Act does not derogate from

article 1683 C.C.Q., but confusion between the debt and the claim, in different legal universalities, simply does not operate. [ 67 ] Lastly, while it is clear that the Act distinguishes between campaign and personal finances, one might well ask whether the separate legal universality for the appellant’s campaign constitutes a distinct patrimony by appropriation, standing apart from his personal rights and obligations, or a fractional division of his existing patrimony. [ 68 ]

Article 2, paragraph 2 C.C.Q. recognizes both of these possible solutions, and both would accommodate the idea that the claim and the debt under the loan are in distinct legal universalities in a manner that precludes confusion from extinguishing the debt. I have come to the view that the independent candidate’s patrimony is subject to a “division” within the meaning of the Civil Code because the text of the Act does not plainly indicate that campaign assets and liabilities are transferred out of the appellant’s patrimony to a new, free- standing patrimony by appropriation.

I find this reflects more accurately how the Act provides for the organization of campaign finances of the independent candidate who is his or her own official agent and representative than the characterization of campaign finances being placed in a separate patrimony as in the case of a political party. Unlike the case of a trust where property is transferred to a patrimony by appropriation that clearly exists outside the patrimony of the holder (article 1260 C.C.Q.), the Act does not plainly provide for the transfer of property out of the independent candidate’s patrimony.

Even in the case of a contribution made “to a candidate”, the suggestion seems to be that the candidate retains title, but that the property moves to a different universality within his or her patrimony (unlike the situation for a contribution made to a candidate’s political party: s. 427(1)). This divided portion of the personal patrimony is

a universality with a distinct purpose or affectation that can nevertheless be administered by the same person, as

article 2 C.C.Q., paragraph 2 expressly allows. [32] Property in a divided patrimony is not charged with the performance of a person’s personal obligations (article 2645 C.C.Q.).

I hasten to say that holding title to sums in the election fund in a divided patrimony does not mean that the candidate has unfettered ownership thereof: the Act is clear, for example, that after an election, surplus contributions must be made over to charitable or like organization or to the municipality. [ 69 ] But I recognize that the distinction between a divided patrimony and a separate patrimony is of no moment here since, in both instances, campaign assets and liabilities form a distinct legal universality, appropriated to a distinct purpose from that associated with the appellant’s personal rights and obligations. [ 70 ] The judge was right to hold that confusion did not operate to extinguish the debt here and, pursuant to sections 65 and 474, he was entitled, on this basis, to consider the appellant ineligible for municipal office. (

b) Is the debt on the loan prescribed? [ 71 ] As an alternative argument, the appellant submits that the outstanding debt owed to him by his campaign under the loan is prescribed. He is of the view that

section 467 , paragraph 3 of the Act fixes a 180-day maximum period during which the claim may be made either to the official agent or to the treasurer of the municipality. As creditor under the loan agreement, he made no such claim to be repaid during this statutory prescription period. As a result, he says, the debt under the loan is extinguished by prescription. [ 72 ] This argument is without merit. It reflects a misunderstanding of the applicable terms of the Act and the legislative purpose that should guide its

interpretation. [ 73 ] The legislature regulates loans with precise rules for repayment given the distinct possibility that the loans may be misused as a means to contribute to a campaign over the amounts permitted pursuant to

section 431. [ 74 ] As noted above, a loan is not a “contribution” (s. 428(4)). Capped at a maximum of $10,000, the loan must be repaid out of authorized contributions or the statutorily determined reimbursement of electoral expenses (s. 449). If the law allowed a loan to be repaid out of other funds, whether the lender was the candidate or another elector, the net effect would be to permit a contribution by the lender to the campaign over the limit for contributions established in

section 431 and, potentially, an amount over the spending limit on the campaign in

section 465. And if the loan were not repaid, for whatever reason, the campaign that borrowed the funds in an amount over the contribution ceiling in

section 431 would have what the legislature has determined to be an unfair financial advantage over other candidates. [ 75 ] The same untoward consequence would result if an elector lent an amount over $300 to a campaign and declined to ask that the loan be repaid. He or she would have made a contribution to the campaign over the limit permissible by law. Similarly, if an independent candidate lends funds to the campaign over the allowable limit for contributions – as was the case here – and declined to call for repayment of the loan, then he or she would have made an impermissible contribution to the campaign, over the amount stipulated in

section 431. If prescription could be invoked as proposed by the appellant, the maximum amount of a loan pursuant to

section 447.1 – $10,000 – could be applied to a campaign in a manner that would frustrate legislative purpose. [ 76 ] In this sense, waiving repayment of the loan, or allowing the prescription period on the debt to expire, violates the very policy upon which the Act rests. In point of fact, circumstances exist where such conduct may constitute a penal offence under the Act.

I say so not to impeach the good faith or probity of the appellant – none of that is in issue here – but to signal that the argument he invokes on appeal falls out of step with the objective of the legislature to promote financially fair elections. [ 77 ] Furthermore, the manner in which the appellant invokes the rules bearing on the timing for repayment of “an amount due for election expenses / un montant qui est dû pour une dépense électorale” in

section 467 displays, in my view, a misunderstanding of the technical rules of the Act . [ 78 ] It is true that

section 467 provides that every person to whom such an amount is due must present his or her claim to the official agent within 60 days of the polling day and that a further 120 days is provided for in the same

section for the claim to be presented to the treasurer, failing which the claim is deemed “prescribed / prescrite”. [ 79 ] However, where a creditor omits to file a claim within the 60-day period, the official agent must record that fact in the return of election expenses filed after the election, pursuant to

section 494. The appellant also neglects to mention that where claims for amounts due are not paid, the official agent must remit “a cheque drawn on the election fund and made out to the order of the treasurer for the total amount of the claims” so that the treasurer can make those payments. In other words, the appellant seeks the benefit of the prescription period under

section 467, but has himself failed to follow the rules that would allow the treasurer to pay late claims. Finally, even of the creditor does not call for payment of his or her claim after the 180 days, the amount of such claim must still be recorded in the return of election expenses filed by the candidate. The reason is plain: unpaid claims arising from election expenses, if they went unrecorded, would amount to indirect contributions to a campaign, in contravention to the letter and spirit of

section 431. [ 80 ] The Chief Electoral Officer argues a step further: the prescription period invoked by the appellant in

section 467 applies only to what his counsel characterizes as claims relating to “direct election expenses” from suppliers and not to loans made to a campaign. Loans, he contends, are regulated separately and included in the expression “debts arising from [a candidate’s] election expenses / dettes découlant [des] dépenses électorales” in

section 474 and the corresponding rule on ineligibility in

section 65, the two provisions, along with

section 300, that were at the basis of the judgment of the Superior Court declaring the appellant to be disqualified from holding office. [ 81 ] I am inclined to the Chief Electoral Officer’s view. To decide that the loan is susceptible of extinction by prescription in the manner proposed by the appellant would leave sections 65 and 474 – provisions that are key to regulating campaign financing – without plain effect. But in any event, whether the amount is recorded as an unclaimed election expense or an unpaid debt, the judge was bound to consider the unpaid balance on the loan for the purposes of the appellant’s eligibility under

section 65 and to his disqualification under

section 300(1). No reviewable error has been shown here. (

c) Impact of appellant’s conduct on the democratic process [ 82 ] The appellant submits that the judge erred in fact and in law in deciding that the failure to repay the loan substantively affected the democratic process. Recalling that he was elected as municipal councillor in 2015 by what he describes as a substantial majority and that all his creditors were paid in full, he says the judge was wrong to disqualify him from office based on the failure to respect a formality under the Act . He points to the judgment in this Court in Dompierre v.

Provost [33] as authority for the proposition that courts should exercise their power to interfere in municipal elections cautiously.

The appellant’s conduct in 2013 has no bearing on the 2015 election. [ 83 ] This ground of appeal is rejected. [ 84 ] It is no doubt true, as was observed in Dompierre , that the failure to observe certain lesser formalities under the Act does not necessarily invalidate an election, in particular where the matter has no “determining effect / effet déterminant” on the vote. [34] But unlike Dompierre in which the statutory violations were inconsequential, the appellant’s failure to repay the loan contracted in the 2013 election was one for which the legislature specifically contemplates the candidate’s ineligibility for a four-year period under

section 65. This consequence reflects the seriousness of such a breach: the appellant’s conduct, whether or not he was in good faith, meant that he had an unfair financial advantage in the election of 2013. The four-year sanction of ineligibility – and by extension disqualification where a person is elected when subject to ineligibility – is set out in the Act as a means of protecting the legitimate democratic process. [ 85 ] In a word, it cannot be said, as the appellant argues, that he was properly elected in 2015 even if he won by a substantial margin.

The appellant seems to misunderstand that the rule on disqualification to which he is subject has been put in place to ensure the viability of the “democratic process” that he seeks to invoke to his advantage. *** [ 86 ] In sum, the judge made no error in deciding that the appellant was ineligible to hold office as a municipal councillor when he won the election in 2015 and, as a consequence, that he must be disqualified from the position to which he was elected at that time. [ 87 ] I would, however, propose an adjustment to the judge’s conclusion to reflect the precise terms of sections 65 and 300(1) of the Act as they bear on ineligibility and disqualification respectively.

The principal conclusion of the judgment states: DÉCLARE le défendeur [Edward McCann] inhabile à exercer la fonction de membre du conseil de la Municipalité de Pontiac et de toute autre municipalité pour une période de quatre ans à compter du 1 er janvier 2015; […]. [ 88 ] Pursuant to sections 65 and 474, the appellant is “ineligible” ( inéligible ) for a period of four years from the date of his default to pay all debts arising from his election expenses for the 2013 election. This four-year period of ineligibility commenced on January 1, 2015.

Given that he was elected while ineligible, the appellant must be declared “disqualified” ( inhabile ) from holding the office of municipal councillor to which he was elected on November 8, 2015. Disqualification obtains “for the whole term of his office / pour toute la durée de son mandat”, pursuant to section 300(1). Respectfully stated, the periods of ineligibility and of disqualification are not the same. [ 89 ] I propose therefore to allow the appeal for the sole purpose of making this change and would confirm the judgment in all other respects.

I would dismiss the respondent’s motion to dismiss the appeal, without costs, and award no costs on appeal given the public- interest character of the issues raised by the parties. NICHOLAS KASIRER, J.A. Toute personne est titulaire d’un patrimoine. Celui-ci peut faire l’objet d’une division ou d’une affectation, mais dans la seule mesure prévue par la loi. Every person is the holder of a patrimony. It may be the subject of a division or of an appropriation to a purpose, but only to the extent provided by law.

L’agent officiel ou l’adjoint ne peut défrayer le coût d’une dépense électorale que sur un fonds électoral. In no case may an official agent or his deputy pay the cost of any election expense otherwise than out of an election fund. Harmonie du code, enfin, avec les lois spéciales ou particulières. […] Qu’en toutes matières où il établit le droit commun, le code

constitue le fondement des autres lois, qui peuvent elles-mêmes ajouter au code ou y déroger. La liberté du législateur par rapport au code est donc confirmée, mais, formidable économie de moyens, le législateur est censé, sauf volonté contraire, s’en remettre, dans ses concepts, ses raisonnements, voire ses finalités, au droit commun établi par le code . [Emphasis in original].