JAMES MCNAIR & PARTUP DUA Applicants v. CHIEF ELECTORAL OFFICER OF CANADA, 2023 FC 888

Date: 20230623 Docket: T-1086-23 Citation: 2023 FC 888 Ottawa, Ontario, June 23, 2023 PRESENT: The Honourable Madam Justice Furlanetto BETWEEN:JAMES MCNAIR & PARTUP DUAApplicantsandCHIEF ELECTORAL OFFICER OF CANADARespondent ORDER AND REASONS [1] The Applicants James McNair and Partup Dua are asserted to be the Co-Leader and the Leader of the Direct Democracy Party ofCanada [DDPC], respectively. By this motion, they seek an expedited

schedule for their application for judicial review of a decision,dated May 15, 2023, of the Chief Electoral Officer of Canada [CEOC] to deregister the DDPC [Decision], and an order staying the effectof the Decision pending the determination of their application. [2] The CEOC was not satisfied that the DDPC had sufficiently complied with its triennial obligation under subsection 407(2) of theCanada Elections Act, SC 2000, c 9 [Act]. The Decision to deregister the DDPC was to take effect on May 31, 2023.

However, becausethe motion was on short notice and to allow the motion to be properly briefed and considered, on May 30, 2023 the Court issued an ordertemporarily staying the effect of the Decision on an interim basis until this motion could be determined. [3] The Respondent does not dispute that an expedited

schedule should be granted. However, it opposes the Applicants’ request for astay. [4] As set out further below, it is my view that a stay cannot be granted as the Applicants have not satisfied the tripartite test set out inRJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald]. I. Background [5] The Act outlines certain triennial requirements for a registered party.

Pursuant to subsection 407(2) of the Act on or before June 30 ofevery third year, a registered party must provide the CEOC with the names and addresses of 250 electors and their declarations that theyare members of the party. The purpose of this requirement is to ensure that only parties with a baseline of public support can continue toreceive the benefits associated with registration as a party. [6] The CEOC may deregister a party if it fails to provide confirmation under subsection 407(2) of the validity of the registeredinformation (subsection 412(1)(

g) of the Act), and if the party does not rectify the omission within thirty days after receiving notice ofthe omission, or satisfy the CEOC that the omission was not the result of negligence or a lack of good faith (subsections 415(1) and (3)of the Act). [7] The CEOC establishes the process that it will follow to determine compliance with subsection 407(2) of the Act. The process thatwas used in the triennial process at issue in this case is set out in the evidence of the Respondent and is summarized in their writtenrepresentations (paragraphs 23 to 29) as follows: 23.

Step One: No later than June 30, every registered political party must provide the CEO with the names and addresses of250 electors and their declarations in the prescribed form that they are members of the party. The prescribed declarationform is available online and a copy was sent directly to the registered parties. The declaration must include the party name,the party member’s complete contact information, be signed by hand and be dated by the member within the 12 monthsbefore the submission of the 250 declarations. 24.

Step Two: Upon receipt, Elections Canada personnel check that each declaration features the correct party name, theparty member’s complete contact information, that it is signed and dated within 12 months of submission and is not aduplicate (Initial Review). Declarations that do not feature the information required are not counted towards the party’stotal. 25. Step Three: Upon receipt of 250 declarations that are complete (or valid) on their face, the CEO will deem the partiescompliant with their Triennial Review Exercise obligations, absent other extraordinary factors, if they meet one of thefollowing factors:

a) the party has an elected member in the House of Commons at the time of the Triennial Review Exercise;

b) the party received at least 2% of the vote nationwide or 5% of the vote in the electoral districts where it ran candidates inthe last general election; or

c) the party has had at least 250 contributors or fundraised at least $100,000 in the calendar year preceding the TriennialReview Exercise. 26. Step Four: If a party does not meet any of these criteria, Elections Canada carries out a confirmation process so that theCEO can be satisfied (or not) that the party has met its obligations under s. 407(2) (Confirmation Process). 27. Pursuant to the Confirmation Process, Elections Canada sends a confirmation package to 50 randomly selected membersas identified from the 250 or more declarations the party provided.

Those members are asked to return a signedquestionnaire within one month of receipt. A copy of the questionnaire is available on the Elections Canada website.Elections Canada receives these questionnaires and compares each against the member’s original declaration. The CEO thenreviews the results. 28. To determine whether a party has met its obligation to show that it had the requisite membership levels, the CEOconsiders several factors that could be understood to indicate that a party has a more substantial membership. These includethe number of positive and negative responses to the mail-out. 29.

Step Five: If, following review of the mail-out, the CEO is satisfied that a party has met its obligations, the TriennialReview Exercise is concluded, and the party is notified. Alternatively, if the CEO is unsatisfied that a party has met itsobligations under the Act, then another mail-out to the remaining party members may be conducted or the CEO maycommence the deregistration process. The subsequent mail-out will be conducted along the same timeline and will result ina similar consideration of factors by the CEO.

If the result of a subsequent mail-out fails to satisfy the CEO that the partymeets its obligations under the Act, the CEO will commence the deregistration process. [Footnotes excluded] [8] The DDPC was registered as a party in September 2019. It was therefore required, as part of the triennial review process, to providethe names and addresses of 250 of its members, and their respective declarations, by June 30, 2022. [9] On June 30, 2022, the DDPC submitted 280 declarations, which were reviewed by Elections Canada.

Through its Initial Review,Elections Canada determined that only 269 declarations were valid on their face and that none of the criteria for bypassing theConfirmation Process had been satisfied. [10] On August 19, 2022, Elections Canada notified Mr. Dua that it would be proceeding with the Confirmation Process and mailingconfirmation packages to 50 randomly selected declarants.

The packages were mailed on September 16, 2022, and recipients were askedto return the packages to Elections Canada by October 17, 2022. [11] As the process yielded few positive returns and some negative returns, step five of the process was engaged and a second mail-outwas conducted. On December 20, 2022, confirmation packages were mailed to the remaining 219 declarants, which were madereturnable on January 20, 2023. [12] On March 23, 2023, the CEOC reported the results of the Confirmation Process to Mr. Dua and advised that the CEOC was notsatisfied that the party had met its triennial requirements.

The CEOC noted particular concern with the relatively low positive rate andthe number of negative responses, including the number of individuals who claimed to have not signed membership declarations. TheCEOC advised Mr. Dua that DDPC could avoid deregistration if, within 30 days, it rectified the omission or satisfied him that theomission was not the result of negligence or lack of good faith.

The CEO proposed that the DDPC might seek to rectify the omission byproviding his office "“with a credible and robust explanation that explains how it would come to pass that some electors whosedeclarations were submitted have informed my office that they are not in fact members and that they did not sign the forms in question”"or "“any additional information to satisfy [him] that [the DDPC] did in fact meet the Triennial requirement”". [13] Between March 23, 2023 and April 23, 2023, the CEOC and Mr.

Dua exchanged correspondence regarding the responses receivedand the information that could be shared about the responses. Elections Canada provided Mr. Dua with a spreadsheet listing the 269declarants to whom a confirmation package had been mailed, those who had responded and who agreed to share their personalinformation, and those whose confirmation packages were returned. [14] On April 23, 2023, Mr. Dua responded to the rectification letter requesting a further 45 days for full response. Mr.

Dua reiteratedhis request to receive all information about the negative responses even if the respondents had not consented and repeated variouscomplaints about the alleged arbitrariness of the process. [15] On May 15, 2023, the CEO responded to Mr. Dua’s correspondence and informed Mr. Dua that the DDPC would be deregistered,effective May 31, 2023, in accordance with s. 415(3) of the Act. II. Issues [16] As a preliminary matter, the Respondent notes that the DDPC is not a named Applicant to the proceeding.

It argues that there is anoutstanding issue as to whether the individual Applicants have standing to bring the application. The Respondent does not challenge theApplicants’ standing in the current motion, but reserves the right to do so during the course of the application.

Thus, I will not addressthis issue further for the purposes of this motion. [17] As the parties are agreed that the application should be expedited, the sole issue in dispute on this motion is whether a stay shouldbe granted. [18] In determining whether to grant a stay, the Court must be satisfied that the tripartite test set out by the Supreme Court of Canada inManitoba (Attorney General) v Metropolitan Stores Ltd, (SCC), [1987] 1 SCR 110, and described in RJR-MacDonald

has been satisfied. The test requires that: 1) there is a serious issue to be tried; 2) the Applicants would suffer irreparable harm if the stay is not granted; and, 3) the balance of convenience favours granting the stay. The test is conjunctive; thus, all three parts of the test must be satisfied. The Court must also be satisfied that granting a stay is just and equitable in all the circumstances of the case: Google Inc v Equustek Solutions Inc , 2017 SCC 34 at para 25 . III. Analysis A.

Serious Issue [ 19 ] For the first part of the test, the Applicants must establish that there is a serious issue to be tried in the sense that the application is neither frivolous nor vexatious: RJR-MacDonald at 335, 337; Canada (Attorney General) v Robinson , 2021 FCA 39 [ Robinson ] at para 18 . This involves a preliminary assessment of the merits of the application: RJR-MacDonald at page 337; Robinson at para 18 . A more onerous test applies where granting a stay is tantamount to granting the relief sought in the underlying proceeding.

In that circumstance, the Court must satisfy itself, through a more rigorous review, that the Applicants would likely prevail: Canada (Public Safety and Emergency Preparedness) v Assante 2019 FC 905 at para 9 .

The parties assert, and I agree, that the less onerous frivolous and vexatious standard is what is at issue here. [ 20 ] The Applicants raise three general arguments in their notice of application: 1) that the CEOC acted without jurisdiction, beyond their jurisdiction, or refused to exercise their jurisdiction when making the Decision; 2) that the Applicants were denied procedural fairness; and 3) as best as can be discerned, that the CEOC erred when making his Decision such that the Decision is unreasonable. [ 21 ] However, on this motion the Applicants assert that there is no issue of jurisdiction.

The Act provided the CEOC with authority to deregister the DDPC if it was not satisfied that the DDPC had confirmed that it had 250 members by June 30, 2022 in accordance with subsection 407(2) . [ 22 ] Further, the Applicants assert that this motion should not engage with the reasonableness of the Decision. Rather, they argue that the sole issue is whether the DDPC was afforded procedural fairness. [ 23 ] The determination of whether procedural fairness has been met is context specific.

As set out in Taseko Mines Limited v Canada (Environment) , 2019 FCA 320 at para 31 , " “[t]he guiding principle...is that the person affected should be afforded the means to present their case fully and fairly, and have a decision made in a fair, impartial and open process, taking into consideration the statutory, institutional and social setting of that decision.” " [ 24 ] The Applicants argue that the procedure applied was onerous and impractical and that the manner of sending out notices by mail, on a date around the holiday season, at a time-period many months after the members initially registered their support for the DDPC was unfair.

They further argue that they were not provided with sufficient information or a fair opportunity to rectify the perceived deficiencies in their compliance with subsection 407(2) of the Act . [ 25 ] In my view, these arguments do not meet the threshold for a serious issue. The assertions of onerousness and impracticality with the process are merely expressions of disagreement with the statutory requirements of subsection 407(2) , rather than issues of procedural unfairness as to how the process was implemented.

The allegations of unfairness as to the choice of sending notices by mail and their timing are bald assertions that are not supported by any evidence of negligence or carelessness by CEOC in conducting the Confirmation Process or any direct material adverse effect. As noted by the Respondent’s evidence, the same process for the administration of the triennial review and Confirmation Process was applied and communicated to all registered parties.

Like DDPC, other parties had confirmation deadlines in and around the same timeframe. [ 26 ] The motion materials demonstrate that the Applicants had repeated notice of the triennial review process, the steps CEOC proposed to follow at each step of the process and their consequences, and were given an opportunity to actively participate and respond. [ 27 ] Throughout the process, the Applicants raised concerns that recipients would not return the confirmation packages because they may have moved, would be unlikely to open their mail or would be suspicious of receiving and responding to government mail.

While Elections Canada did not change the process because of these concerns, in each instance, the CEOC considered and provided a detailed response to the concerns raised. The CEOC explained that it understood only a percentage of the recipients would mail back the questionnaires, and that the CEOC would review the number of positive and negative responses and take this data and the circumstances into consideration. [ 28 ] Once the second stage of the Confirmation Process was complete, the CEOC wrote to Mr.

Dua to advise of the detailed results of the process and the CEOC’s concern that DDPC had not met its triennial requirements due to a " “low positive rate and the number of negative responses, including those where individuals claimed that they had not signed membership declarations” " .

The CEOC explained its authority to deregister the party under subsection 412(1) and gave the DDPC 30 days to rectify the omissions. [ 29 ] The Applicants complain that they were not provided with the names of those recipients who responded negatively during the Confirmation Process; however, consistent with the consent request on the confirmation form, the CEOC explained that the identity of those individuals could not be shared unless consent was provided. Where consent was provided, the information was supplied to Mr. Dua and Mr.

Dua was provided with a spreadsheet outlining the names of all individuals to whom a package had been sent. [ 30 ] The CEOC considered Mr. Dua’s request for an extension of time to respond to the rectification letter, but noted that it was premised on Mr. Dua waiting for information from Elections Canada that it already advised could not be provided. [ 31 ] The Applicants question why the process under

section 410 of the Act was not invoked instead of the subsection 415(1) process. However, this argument was not made before the CEOC and is not properly before the Court.

[ 32 ] In any event,

section 410 relates to a separate process for deregistration of a party that is based on compliance with subsection 395(1) or

section 402 of the Act . The

section 410 process runs separately from the triennial obligations of a party under subsection 407(2) . [ 33 ] I agree with the Respondent, on the record before me for this motion the Applicants have not made out a serious issue as it relates to a denial of procedural fairness. [ 34 ] However, even if the Applicants could get beyond the serious issue part of the analysis, in my view the motion is nonetheless doomed to fail, as the Applicants have not established that they will suffer irreparable harm if the stay is not granted and the balance of convenience favours the public interest concerns raised by the Respondent.

B. Irreparable Harm [ 35 ] Irreparable harm is harm that is unavoidable and that cannot be cured or quantified by monetary damages: Arctic Cat, Inc v Bombardier Recreational Products Inc , 2020 FCA 116 [ Arctic Cat ] at para 18 . [ 36 ] By its nature, it is harm that is clear and non-speculative: Air Passengers Rights v Canada (Transportation Agency) , 2020 FCA 92 at para 28 . It cannot be based on assertions, or harm that is " “likely” " to be suffered: United States Steel Corporation v Canada (Attorney General) , 2010 FCA 200 at para 7 .

Rather, there must be evidence at a convincing level of particularity that demonstrates a real probability that unavoidable irreparable harm will result unless a stay is granted: Arctic Cat at para 20 , citing Glooscap Heritage Society v Canada (National Revenue) , 2012 FCA 255 [ Glooscap ] at para 31 . [ 37 ] The Applicants argue that they will suffer irreparable harm if the deregistration takes effect because they will not be able to participate effectively in any upcoming election. [ 38 ] However, as established by the evidence of the Respondent, a deregistered party may continue to exist as a political party and fundraise, advertise and participate in public events.

Deregistration will not prohibit the Applicants from running in an upcoming election. A candidate may continue to campaign and participate as a member of the party. The only limitation is that they cannot place the party name next to theirs on any ballot and the DDPC will not have the benefits reserved for registered parties, such as eligibility of tax credits and access to lists of electors, neither of which was asserted by the Applicants to be critical to DDPC. [ 39 ] While the Applicants suggest that running in an election as an independent is not effective, they have provided no evidence to demonstrate this.

Nor is there any evidence of an imminent election in which the Applicants are proposing to participate. [ 40 ] Further, pursuant to

section 388 of the Act , a party can reapply for registration at any time and the party’s name, short-form abbreviation and logo are protected for 30 days after deregistration from use by another other party applying for registration. Thus, there is nothing to prevent the DDPC from taking immediate steps to seek re-registration of their party under the same name. [ 41 ] The Applicants argue that as a small party it is too onerous to compile the 250 signatures needed for re-registration of a party.

However, the fact that this requirement may be perceived as onerous is not demonstration of harm, let alone harm that is irreparable. The DDPC was able to comply with this requirement when they registered their party in 2019. There is no reason why they should not be able to do this again. Any delay on the part of the Applicants to start this process cannot be the foundation for a claim of unavoidable irreparable harm. [ 42 ] As the Applicants have failed to provide clear and non-speculative evidence of any irreparable harm, the second part of the RJR- MacDonald test fails. C.

Balance of Convenience [ 43 ] The third part of the test is balance of convenience. This involves " identifying the party that would suffer greater harm from the granting or refusal of the stay, pending a decision on the merits " . [ 44 ] In this case, I agree with the Respondent, the proposed stay raises important public interest concerns that tip the balance in favour of the Respondent. [ 45 ] First, the Applicants seek to prevent the CEOC from exercising his statutory duty to enforce the Act and deregister the DDPC.

Such constraint on statutory power has been described as a " “very important” " public interest concern that " “weighs heavily” " on the third part of the test: Glooscap at para 52 . [ 46 ] Second, there is public interest in preserving the integrity of the established regime for party registration.

Where a party has not maintained baseline support and there is evidence that some of the support may have been obtained fraudulently, the foundation for that regime is put into disrepute. [ 47 ] As I have already held there is insufficient evidence to establish irreparable harm, these public interest concerns outweigh any perceived harm to the Applicants from losing the benefit of DDPC’s registered status. [ 48 ] For all of these reasons, it is my view that a stay cannot be granted. As the Respondent does not oppose an accelerated

schedule for the application, I will order that the application proceed as a specially managed proceeding so that a Case Management Judge can be appointed and an expedited

schedule can be set if the Applicants so wish. [ 49 ] As there was no request by either party for costs, none shall be awarded.

ORDER IN T-1086-23 THIS COURT ORDERS that : 1 . The Applicants’ request for a stay is dismissed. 2 . The action shall continue as a specially managed proceeding and be referred to the Office of the Chief Justice for the appointment of a Case Management Judge. 3 . Within ten (10) days of the appointment of a Case Management Judge, the parties shall file a jointly proposed

schedule for the steps in the application, along with joint dates of availability for a case management conference. 4 . There shall be no order as to costs for the motion. "Angela Furlanetto" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1086-23 STYLE OF CAUSE: JAMES MCNAIR & PARTUP DUA v CHIEF ELECTORAL OFFICER OF CANADA PLACE OF HEARING: HEARD BY VIDEOCONFERENCE DATE OF HEARING: June 15, 2023 ORDER AND REASONS: FURLANETTO J. DATED: June 23, 2023 APPEARANCES : James McNair For The Applicant James McNair (ON HIS OWN BEHALF) Partup Dua For The Applicant PARTUP DUA (ON HIS OWN BEHALF) Nadia Effendi Christine Muir, Monica Kozycz, Byron Tayor-Conboy For The Respondent SOLICITORS OF RECORD :

Border Ladner Gervais Barristers and Solicitors Toronto, Ontario For The Respondent