TOMAS SZUCHEWYCZ Applicant v. ATTORNEY GENERAL OF CANADA AND CHIEF ELECTROAL OFFICER, 2020 FC 954

Date: 20201006 Docket: T-1153-20 Citation: 2020 FC 954 Ottawa, Ontario, October 6, 2020 PRESENT: Madam Justice Strickland BETWEEN: TOMAS SZUCHEWYCZ Applicant and ATTORNEY GENERAL OF CANADA AND CHIEF ELECTROAL OFFICER Respondents ORDER AND REASONS (Interlocutory Injunction) [ 1 ] The Applicant, Mr. Tomas Szuchewycz, filed an urgent motion, pursuant to Rule 373 of the Federal Courts Rules , SOR/98-106 [ Rules ] seeking an interlocutory injunction in connection with the refusal of an Elections Canada returning officer to accept the Applicant’s nomination submission.

The Applicant sought to run as an independent candidate in the October 26, 2020 by-election for the federal electoral district of York Centre. [ 2 ] Federal elections are governed by the Canada Elections Act , S.C. 2000, c.9 [ CEA ]. It is the mandate of Elections Canada, an independent non-partisan agency, to administer elections in accordance with the CEA . [ 3 ] On September 18, 2020, the Governor in Council ordered that the by-election in York Centre be held on October 26, 2020.

The order directed the Chief Electoral Officer to issue a writ to the returning officer [Returning Officer] for York Centre instructing the Returning Officer to hold the by-election ( CEA , s 57(1.1) and (1.2)). [ 4 ] To become a candidate in a by-election an individual must submit a nomination paper in the prescribed form and including the information set out in s 66(1) of the CEA .

For purposes of this motion, the Applicant was required to provide the names, addresses and signatures, made in the presence of a witness, of at least 100 electors resident in York Centre district ( CEA , s 66(1)(e)) and the name, address and signature of the witness to each such signature ( CEA , s 66(1)(g)). Potential candidates must file the nomination paper with the returning officer in the electoral district where they are seeking nomination at any time between the date of the issue of the Notice of Election and the close of nominations ( CEA , s 67(1)).

A person who files a nomination paper or any other document under

section 67 may also do so by electronic means and, in that event, for the nomination to be valid the returning officer must receive the document in electronic form by the close of nominations ( CEA , s 73 (1)). [ 5 ] In response to this motion, the Chief Electoral Officer filed the affidavit of Michel Roussel, Deputy Chief Electoral Officer, sworn on October 2, 2020 [Roussel Affidavit].

The Roussel Affidavit deposes that potential candidates can submit the completed nomination paper in person at the returning officer’s office, or by way of an online nomination from with supporting documentation through the Political Entities Service Centre [PESC] portal. [ 6 ] Nominations must be filed 21 days before the elections date ( CEA , s 69), which for the York Centre by-election is Monday, October 5, 2020. [ 7 ] The returning officer is required to verify the nomination papers ( CEA , s 71(2)).

This means ensuring that the nomination papers are complete, which includes having at least the number of signatures referred to s 66(1)(

e) or (f), as the case may be, and that the signatures are those of electors who are entitled to vote in the electoral district in which the prospective candidate intends to seek nomination ( CEA , s 72(2)( a.1 ) and (b)). Returning officers must, not later than 48 hours after a nomination paper is filed, give the prospective candidate notice, in the prescribed form, of the confirmation of the nomination or of the refusal to accept the nomination ( CEA , s 71(1)).

A nomination paper that the returning officer has refused to accept can be replaced or corrected if the new or corrected nomination paper is filed by the close of nominations ( CEA , s 71(3)). [ 8 ] The factual backdrop to this motion is straightforward and the facts are not in dispute. [ 9 ] On September 27, 2020 at 17:27, the Applicant submitted a nomination form for candidacy as an Independent in the York Centre by- election, through the PESC portal. The Applicant did not submit any elector signatures with his nomination form.

Instead, he submitted a document that he created and entitled “Signature requirement exemption request”. In this document, he stated that he was not submitting the required 100 signatures because of his belief that to do so would be irresponsible, and contrary to the advice of public health officials. Specifically, that going door-to-door to speak to electors about his candidacy and to collect signatures in the densely populated York Centre district would not be in line with that advice, would be inappropriate behaviour and would recklessly disregard his well-being and the well-being of others.

Further, “[u]nfortunately, parliament has not come up with a satisfactory alternative to collecting signatures that would keep candidates and electors safe during this pandemic, so I ask you to accept my nomination papers despite not fulfilling the requirement of 100 signatures”. The Applicant also stated that he intended to campaign solely online during the by-election. [ 10 ] On September 28, 2020 the Returning Officer, pursuant to s 71(1) of the CEA , issued a Notice of Refusal of Nomination with respect to the Applicant’s nomination paper.

The refusal states that the Returning Officer refused to accept the nomination because the

submission was incomplete as it did not contain at least the number of signatures required by s 66(1)(

e) of the CEA. The refusal alsoadvised that a refused nomination paper can be replaced or corrected pursuant to s 71(3) of the CEA but must be filed by the close ofnominations. The Applicant’s motion for an interlocutory injunction [11] The Applicant filed an application for judicial review of the nomination refusal on September 29, 2020 and filed his notice ofmotion in which he seeks an interlocutory injunction at the same time. The relief requested in the motion is:

a) An interlocutory injunction requiring the Chief Electoral Officer to allow all prospective candidates refused by the ReturningOfficers of the York Centre and Toronto Centre Electoral Districts on the grounds that they failed to meet the requirements set outby sections 66(1)(e)(f)(g) & 66(4) of the Canada Elections Act be accepted by as Candidates in the upcoming by-elections andappear on the respective ballots in the Electoral Districts of Your Centre and Toronto Centre.

b) And interlocutory injunction requiring the Chief Electoral Officer to accept all prospective candidates in any future by-electionsor elections who would otherwise be refused on the grounds that they failed to meet the requirements set out by sections 66(1)(e)(f)(g) & 66(4) of the Canada Elections Act.

c) Such further relief as the applicant may advise and the Court deems just. Preliminary Issue [12] Canada submits that the Court should decline to hear this motion.

Canada points out that this Court retains discretion to refuse tohear last minute motions of interim relief because they force respondents to respond without adequate preparation, do not facilitate thework of the Court and are not in the interest of justice (Lawton v Canada (Leaders Debates Commission), 2019 FC 1424 at para 19[Lawton] referencing Mutadeen v Canada (Minister of Citizenship and Immigration), unreported, June 22, 2000, Court File IMM-3164-00). In this matter, the incumbent announced his intention to resign his seat in York Centre on August 4, 2020.

However, the Applicantwaited until September 27, 2020 to request an exemption from the 100 signature requirement and until September 29, 2020 to bring hisinterlocutory injunction motion. He also led no evidence to demonstrate that he has made any effort to comply with the elector signaturerequirement or that he could not have brought his request and this motion earlier. [13] While I agree that the Applicant could have attempted to file his nomination paper earlier than September 27, 2020, he was notrequired to do so.

He received the Returning Officer’s refusal on September 28, 2020 and filed his application for judicial review andthis motion seeking an interlocutory injunction on September 29, 2020. Moreover, both Canada and the Chief Electoral Officer havefiled extensive submissions in response to the motion. [14] In these circumstances, I will hear the motion.

The test for an interlocutory injunction Applicant’s submissions [15] The Applicant submits that the test to be met in cases involving the Canadian Charter of Rights and Freedoms [Charter] is that setout in RJR-MacDonald v Canada, (SCC), [1994] 1 SCR 311 [RJR MacDonald]. [16] Pursuant to that test, the threshold for establishing a serious issue is low. An applicant need only establish that the claim is notfrivolous or vexatious.

The Applicant submits that RJR MacDonald stands for the proposition that, given the complex nature of mostconstitutional rights, a motions court will rarely have time to engage in the requisite extensive analysis of the merits of the applicant’sclaim, but such claims should not be disposed of before the Courts have had an opportunity to examine them fully. [17] The Applicant also submits that

section 3 of the Charter affords him the right to stand for election (Harvey v New Brunswick(Attorney General), (SCC), [1996] 2 SCR 876 at para 28) and, as he has been denied that right, a serious issue arises.The Applicant submits that he and any other candidates who have failed to meet the CEA s 66(1)(

e) or (

g) requirement for electorsignatures will suffer irreparable harm because they will lose the chance of participating as candidates in their respective elections andthe possibility of election. Finally, the Applicant submits that the balance of convenience lies in his favour. The inclusion of his nameand the names of other candidates who have similarly been refused will not cause any harm to the Respondents or the public interest orwould be minimal. [18] I pause here to note that the Applicant is self-represented and the above

summary is representative of the totality of his writtensubmissions. As to evidence, the Applicant filed a brief affidavit in support of his motion which states that he sought to be a nominee inthe York Centre district by-election, that on September 27, 2020 he submitted the document entitled “Signature requirements exemptionsrequest” by uploading it to the PESC portal, a copy of which is attached as an exhibit to his affidavit, and that on September 28, 2020 hereceived the refusal from the Returning Officer, a copy of the refusal is also attached as an exhibit to his affidavit.

No other evidence wassubmitted in support of the motion. [19] When appearing before me, the Applicant explained his general objection to the CEA’s 66(1) signature requirements and his viewthat these requirements are unconstitutional. He acknowledged that he has previously sought to litigate that issue before this Court inTomas Szuchewycz (in his capacity as official agent for Patrick Strzalkowski et al) v Attorney General of Canada and Elections Canada,

Court file T-1598-19, in which he also sought a interlocutory injunction. In that matter the motion was dismissed by this Court by Orderdated October 4, 2019, after which a notice of discontinuance was filed. The Applicant also acknowledged that his brother also raisedthis issue in Kieran Szuchewycz v Canada (Attorney General), 2017 ABQB 645 [Szuchewycz ABQB], which will be discussed furtherbelow. The Applicant also expressed his view Parliament has failed to respond to the Covid-19 pandemic by removing the CEA 66(1)signature requirements.

He submits the pandemic restrictions on social interaction renders these provisions unconstitutional as they posean unjustifiable barrier to nomination. [20] At the hearing of this motion, the Applicant clarified his pleadings and confirmed that he is not seeking to have the decision of theReturning Officer quashed on the basis that she failed to exercise her discretion when refusing his nomination paper. The Applicantagrees that the CEA requirements are mandatory and that the Retuning Officer was obliged, in the absence of any signatures, to refuse tofile his nominating paper.

He confirmed that his motion and underlying application for judicial review is solely concerned with his viewthat, in light of the pandemic, s 66(1)(e)(f)(

g) and s 66(4) of the CEA result in a breach of his s 3 Charter right to run for public office.

Chief Electoral Officer’s submissions [21] The Chief Electoral Officer takes a position only with respect to the first branch of the RJR MacDonald test and makes nosubmissions on the constitutional issue raised by the Applicant. [22] Regarding the first branch of the test, the Chief Electoral Officer submits that because the Applicant is seeking an interlocutorymandatory injunction, the Court should apply the higher threshold of a strong prima facie that the applicant will succeed at trial, ratherthan a serious issue to be tried test. In that regard, the Chief Electoral Officer references R. v.

Canadian Broadcasting Corp., 2018 SCC 5at paras 15 and 18 [Canadian Broadcasting] and submits that the Applicant is in essence asking the Court to make an order in the natureof mandamus and granting his nomination.

Because the result of the motion will, in effect, finally determine the application by allowingthe Applicant’s name to be printed on the ballot, an extensive review of the merits is warranted (RJR MacDonald, at p 338). [23] The Chief Electoral Officer submits that pursuant to Canadian Broadcasting an applicant is required to establish “a stronglikelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations setout in the originating notice” (Canadian Broadcasting at paras 17-18).

However, the Applicant cannot do so because the ReturningOfficer had no discretion under the CEA to grant the Applicant an exemption from this requirement. I note that because the Applicantconfirmed at the hearing that he was not taking this this position, I need not further address the Chief Electoral Officer’s submissions onthis point. [24] The Chief Electoral Officer submits, as an alternative position, that the Applicant has not demonstrated that he is unable to complywith the CEA signature requirements.

He has provided no evidence that he attempted to collect signatures by any means other than bydoor-to-door canvassing or that another alternative was impossible for him. Nor has the Applicant provided any evidence that there are100 electors who reside in the York Centre district who support his nomination. Canada’s submissions [25] Canada submits that the correct test is Canadian Broadcasting where the Supreme Court clarified the circumstances when the firstbranch of the tripartite test for injunctive relief requires a more detailed examination of the merits of the underlying proceeding.

Thisincludes motions for a mandatory interlocutory injunction, which seeks to compel positive action on the part of the responding party, orwhere the relief sought in the motion would have the effect of finally determining the merits of the application (Canadian Broadcastingat paras 13, 15-16). Canada submits that irrespective of whether the motion is characterised as mandatory or prohibitive injunction, thenature of the relief sought requires the application of a more stringent standard on the first branch of the test.

Further, that the test isconjunctive and the burden is on the Applicant to prove each branch of the test (Canadian Broadcasting, at para 18). [26] With respect to a strong prima facie case, Canada submits that the Applicant has failed to demonstrate a strong likelihood of successon the law and evidence presented and that he will ultimately be successful in his application for judicial review (Canadian Broadcastingat para 18). The requirements of s 66(1)(e)(

f) an (

g) of the CEA are mandatory and in refusing to accept the Applicant’s nominationpaper, the Returning Officer was appropriately discharging her duty to ensure compliance with the Act. The Applicant provides noarguments respecting his allegations that the impugned provisions of the CEA infringe his rights under the Charter. The Applicantinstead argues that he has met the first part of the test by reference to the existence of his rights under s 3 of the Charter and on the basisthat a Charter claim should not be disposed of before the Court has had an opportunity to examine it fully.

Canada submits that thosesubmissions do not establish a foundation for the Applicant’s underlying claim that his s 3 Charter rights have been infringed by theimpugned provisions. [27] Canada submits that s 3 of the Charter protects meaningful, but not unlimited, participation of every citizen in the electoral process(Harper v Canada (Attorney General), 2004 SCC 33 at para 72 [Harper]).

For there to be a finding of infringement of s 3 of the Charter,legislation must appreciably interfere with the capacity of a citizen to play a meaningful role in the electoral process (de Jong v Ontario(Attorney General), (ON SC), [2007] 88 OR (3d) 335 (ONSC) at para 42 [de Jong]; Szuchewycz ABQB at para 41).Sections 66(1)(e)(f)(

g) and 66(4) of the CEA have previously been the subject of a constitutional challenge, although not related to thepandemic, and were found not to infringe s 3 of the Charter (Szuchewycz ABQB). [28] Canada submits that in this case the allegation of a Charter infringement rests upon a bald assertion that the s 66(1) CEA signaturerequirement is irreconcilable with public health guidance in the context of the Covid-19 pandemic, but that this is not sufficient todemonstrate a strong prima facie case of a Charter infringement.

The Applicant’s evidence is that it may be more difficult to meet thesignature requirements for nomination in the upcoming by-election, but those difficulties do not arise from the signature requirement inthe CEA. The Applicant failed to lead any evidence to support his assertion that the requirements of s 66(1)(e)(

f) and (

g) of the CEAappreciably interfere with the capacity of a citizen to play a meaningful role in the electoral process (de Jong at para 42; SzuchewyczABQB at para 41).

[29] And, even if the Applicant had led sufficient evidence to demonstrate a strong prima facie case of an infringement of his rightsunder s 3 of the Charter, then the s 66(1) CEA signature requirements would be justified under the R v Oakes, (SCC),[1986] 1 SCR 103 at paras 138-139 [Oakes] test.

Canada set out why the signature requirement would be justified under s 1. [30] As to irreparable harm, Canada notes that the Applicant contends that if his motion is not granted then he will suffer irreparableharm because he will be unable to participate in the by-election and will potentially be prevented from being elected as a Member of theHouse of Commons. Canada submits that although the inability to meaningfully participate in an election is the type of harm that wouldbe considered irreparable under the RJR MacDonald test, here the Applicant has not shown that the impugned provisions cause suchharm.

The Applicant’s evidence is that he believes that canvassing door-to-door would be reckless in the context of a pandemic. Thisspeculative assertion is unsupported by any evidence as to why alternatives are not available to this Applicant, particularly in light of s 73of the CEA, which permits electronic filing of nomination papers, and his statement that he intends to conduct his campaign solelyonline. The alleged harm is based on bald assertions. Further, the harm could have been avoided by the Applicant.

It is thereforeinsufficient to meet the required threshold of harm (Janssen Inc v Abbvie Corporation, 2014 FCA 112 at paras 24 [Janssen]). [31] Finally, as to the balance of convenience, Canada submits that the granting of the motion would interfere with Parliament’s expressdesire to limit the total number of candidates in any given electoral district by deterring frivolous candidates. Where the public interestassociated with legality is greater than the harm or inconvenience to be suffered by the individual litigant, the individual litigant cannotbe allowed to override legality (Janssen at para 25).

Analysis [32] As a preliminary observation, I note that the Respondents did not address the broad question whether the Covid-19 pandemic, or anysignificant but temporary and unanticipated change of national circumstances, can render otherwise constitutional law invalid. I make nofinding in that regard. [33] With respect to the Applicant’s motion, I agree with the Respondents that the relief sought by the Applicant is, in effect, amandatory injunction.

The Applicant seeks an order from this Court directing the Chief Electoral Officer to accept as candidates theApplicant and any other candidates who failed to meet the mandatory requirements of s 66(1)(e)(

f) and (

g) of the CEA and to place themon the ballots for the York Centre and Toronto Centre by-elections. This requires that the Chief Electoral Officer undertake a positivecourse of action (see, for example, Lawton at para 23). Accordingly, the Canadian Broadcasting modified first branch of the tripartitetest applies. [34] I also observe that this matter would also fall within one of the RJR MacDonald exceptions to the general rule that a motions judgeshould not engage in an extensive review of the merits when considering an interlocutory injunction motion.

That is, where the result ofthe motion will in effect amount to a final determination in the action (RJR Macdonald at p 338). Here the Roussel Affidavit deposes thatto be prepared for the October 26, 2020 by-elections, the ballots with the names of confirmed candidates must begin printing no laterthan Friday, October 9, 2020.

Thus, the reality is that if the motion is granted, the Applicant will have obtained the relief that he seeks inthe underlying application for judicial review which, even on an expedited basis, cannot not be heard and determined before October 9,2020. [35] Therefore, I will apply the tripartite test as stated by the Supreme Court in Canadian Broadcasting: [18] In sum, to obtain a mandatory interlocutory injunction, an applicant must meet a modified RJR—MacDonald test,which proceeds as follows:

(1) The applicant must demonstrate a strong prima facie case that it will succeed at trial. This entails showing a stronglikelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving theallegations set out in the originating notice;

(2) The applicant must demonstrate that irreparable harm will result if the relief is not granted; and

(3) The applicant must show that the balance of convenience favours granting the injunction. [36] In my view, the Applicant has not demonstrated a strong prima facie case that his application for judicial review will succeed. [37] The Applicant’s evidence does not establish that the Applicant’s s 3 Charter right was breached thus giving rise to a serious issue.Reference to his democratic rights under s 3 of the Charter – being that every citizen of Canada has the right to vote in an election ofmembers of the House of Commons or of a legislative assembly and to be qualified for membership therein – combined with the fact thathe advised the Returning Officer that he chose not to comply with the mandatory s 66(1)(

e) and (

g) CEA signature requirements – withthe inevitable result that his nomination was refused – is insufficient to demonstrate a strong prima facie case. Nor does it automaticallyestablish that the impugned provisions infringe his s 3 Charter right.

Section 3 does not guarantee a right to unlimited participation butprotects the meaningful participation of every citizen in the electoral process (Harper at paras 70 and 72; de Jong at para 23). [38] Significantly, the Applicant’s challenge to s 66(1)(e)(

f) and (

g) of the CEA is intrinsically linked to his view that public safetyconcerns arising from the Covid-19 pandemic render those provisions unconstitutional. That is, Covid-19 effectively creates a barrier tocompliance with the signature provisions and therefore denies him his s 3 Charter right.

Or, as he put it when appearing before me, theCEA s 66(1) signature requirements are not appropriate during a pandemic. [39] In my view, the frailty of the Applicant’s position is that it is based only on his personal opinion as to the public heath riskassociated with canvassing door-to-door for signatures, which opinion he has not supported with any other evidence. Further, he has notdemonstrated that door-to-door canvassing is the only option open to him. [40] Conversely, evidence filed by the Chief Electoral Officer indicates that the risk of door-to-door canvassing was assessed by

Elections Canada in consultation with the Federal Health Portfolio Operations Centre [HPOC]. And, as is the case for and is required by virtually every activity of every Canadian, adjustments were identified and implemented to reduce the risk of transmitting the virus. [ 41 ] The Roussel Affidavit deposes that, in response to the Covid-19 pandemic, Elections Canada consulted with HPOC, a multi- disciplinary operations group comprised of individuals from Health Canada, medical advisory groups, occupational health and safety groups that provide emergency management and support and coordination.

The purpose of the consultation was to discuss what safety measures should be put in place in the event of an election, including as relating to candidates and nomination papers. The advice received was as follows:

a) With respect to the requirement for signatures, HPOC recommended (

i) limiting shared and high touch surfaces to help prevent transmission of Covid -19 and (ii) that hand hygiene should be performed immediately after touching shared objects or surfaces;

b) With respect to any guidelines Elections Canada should provide candidates when collecting elector signatures, HPOC recommended that candidates maintain physical distancing and practice personal preventative measures such as wearing a non- medical mask and performing hand hygiene between electors;

c) With respect to the possible risk associated with soliciting and collecting signatures, HPOC recommended that mitigation strategies that minimize risk should be adopted so as not to contribute to the spread of Covid-19. These include usual physical distancing, wearing a non-medial mask when not able to consistently physical distance, limiting the number of shared objects/surfaces and hand hygiene after touching a shared object/surface;

d) With respect to candidates canvassing efforts (e.g. door-to-door campaign or recruiting activities), HPOC recommended that personal preventative measures practices similar to the above be adopted (i.e. physical distancing, wear non-medial mask, good hand hygiene), that individuals be aware of high touch surfaces like doorbells and door handles and that canvassers have hand sanitizer on them at all times and avoid touching their face. [ 42 ] The Roussel Affidavit also states that the HPOC did not suggest that the Chief Electoral Officer should recommend to Parliament that the requirement for signatures on nomination forms be removed as a result of the health risk (which would require a legislative amendment) or that candidates should not canvass. [ 43 ] The Roussel Affidavit goes on to say that as a result of HPOC’s recommendations, the Chief Electoral Officer made available online a new version of the elector signature

section of the nominations package that contains space for only one signature per page to reduce the handling of documents between individuals should a potential candidate wish to collect the signatures in person. Put otherwise, 100 people were not required to touch and sign the same document. [ 44 ] The Roussel Affidavit also indicates that Elections Canada’s website provides information as well as contact information for Election Canada’s Political Entities Support Network, which provides support services for potential candidates.

The Election Canada’s Political Entities Support Network posted a standard response for inquires relating to the signature requirement during the Covid-19 pandemic. [ 45 ] I accept that Covid-19 makes door-to-door canvassing by potential candidates to obtain the required 100 elector signatures more complex, and that it does entail more risk than in pre-pandemic times. But, as is the case with all of our activities at this time, Canadians are taking steps to mitigate the risk.

Potential candidates would similarly need to do so and the Applicant offers no evidence that he is unable to utilize risk mitigation measures, only that he is unwilling to do so. [ 46 ] The Applicant has also provided no evidence to establish that he attempted to collect signatures by any other means or that another alternative was impossible for him. [ 47 ] In that regard, the Roussel Affidavit states that original signatures are not required to be submitted to the Returning Officer, since the nomination package can be submitted online through the PESC portal.

Further, that the CEA does not specify who can fulfil the role of witness (i.e. it does not need to be a candidate or his or her official agent), although it does require that the elector signatures be made in the presence of a witness ( CEA 66 (4)).

At the hearing, the Chief Electoral Officer also noted that pursuant to s 18.3 of the CEA , the signature requirement can be satisfied in any manner the Chief Electoral Officer may authorize. [ 48 ] The Chief Electoral Officer, by way of the standard response contained on Election Canada’s Political Entities Support Network, does not state that an elector could email or otherwise send the witnessed signature to the potential candidate who, in turn, could then submit this by way of the PESC portal.

However, given that original signatures are not required, that s 73 of the CEA permits electronic filing of nomination papers, and the discretion afforded to the Chief Electoral Officer pursuant to s 18.3 of the CEA , this would seem to provide a nomination submission option that would not require door-to-door canvassing. [ 49 ] As stated in Szuchewycz ABQB , the Applicant bears the onus of establishing all elements of a Charter infringement and must provide a factual foundation capable of supporting the allegations of a Charter breach (at para 40).

In my view, in the context of this motion for an interlocutory injunction, the absence of any evidence to support the Applicant’s view that the current Covid-19 pandemic renders the s 66(1) CEA signature requirements irreconcilable with public health guidance, the Applicant has not demonstrated a strong likelihood that he would be ultimately successful in proving the allegations set out in the his notice of application for judicial review. In his notice of application, all four stated application grounds pertain to how the Covid-19 pandemic impacts the operation of CEA ss 66(1)(e)(

f) and (

g) and 66(4). [ 50 ] As noted above, to meet the strong prima facie case threshold, the Applicant must show a strong likelihood on the law and the evidence presented, that at trial the applicant will be ultimately successful in proving the allegations set out in the originating notice. For the above reasons, the Applicant has not established his evidentiary burden in this case. [ 51 ] Second, with respect to the law, as submitted by Canada, for there to be a finding of infringement of s 3 of the Charter , legislation must appreciably interfere with the capacity of a citizen to play a meaningful role in the electoral process ( de Jong at para 42 ;

Szuchewycz ABQB at para 41 ). [ 52 ] In Szuchewycz ABQB, ss 66(1)(e)(f)(

g) of the CEA were the subject of a constitutional challenge (not in the context of a pandemic) and were found not to infringe s 3 of the Charter . While Szuchewycz ABQB is not determinative or binding on me, it does suggest that the law does not support a strong likelihood that the Applicant would be ultimately successful in his application for judicial review. [ 53 ] There the applicant contested the constitutionality of s 66(1)(e)(

f) and (

g) of the CEA as well as s 67(1)(3)(a)(

b) and (c) (witness requirement provisions) and s 67(44) (deposit requirement) and sought declaratory relief, being a finding that those provisions infringed s 3 of the Charter . The Court in that case found that the deposit requirement violated s 3 and was not justified under s 1, but that the signature and witness requirements did not infringe s 3. With respect to the signature requirement, the applicant had argued that it imposes a significant administrative burden for potential candidates, therefore restricting their ability to exercise their s 3 Charter rights.

The Court noted that in general, government reports and the courts have found those requirements to be consistent with s 3 of the Charter (referencing the Lortie Report and de Jong at paras 33,70-72 ) and concluded that the signature requirement is not a significant restriction on a citizen’s ability to meaningfully participate as a candidate. This was demonstrated by the applicant’s evidence that he had spent two days in a riding in which he had no connection and was still able to meet the signature requirement.

The Court stated that it could find no evidence that the requirement affected his right to run as a candidate or that it would otherwise prevent a willing and able citizen to do so. [ 54 ] In this matter, the Applicant has chosen not to try to meet the signature requirements. However, while he may be unwilling to canvass door-to-door to gather the signatures, he has not provided any evidence that his unwillingness is supported by public health restrictions or that he is otherwise unable to comply with the requirements.

The Roussel Affidavit deposes that, at the time of its execution, one additional nomination had been received and confirmed for the York Centre district and two for the Toronto Centre district.

That evidence establishes that other candidates have been able to meet the signature requirements in the subject by-elections. [ 55 ] For these reasons, in my view, the Applicant has not established a strong prima facie case and therefore has not met the first branch of the tripartite test. [ 56 ] As to irreparable harm, this refers to the nature of the harm, rather than its magnitude, and it is harm which cannot be quantified in monetary terms or which cannot otherwise be cured ( RJR MacDonald at p 341).

In my view, the fact that the Applicant, if he is not successful in this motion, will not be able to run for elections is on its face irreparable harm. However, as stated in Janssen : [24] On the irreparable harm branch of the test, the moving party must demonstrate in a detailed and concrete way that it will suffer real, definite, unavoidable harm – not hypothetical and speculative harm – that cannot be repaired later: Stoney First Nation v. Shotclose , 2011 FCA 232 at paragraphs 47-49 ; Laperrière v. D. & A. MacLeod Company Ltd. , 2010 FCA 84 at paragraphs 14-22 ; Gateway City Church v.

Canada (National Revenue) , 2013 FCA 126 at paragraphs 14-16 ; Glooscap Heritage Society , supra at paragraph 31; Canada (Attorney General) v. Canada (Information Commissioner) , 2001 FCA 25 at paragraph 12 . Here again, it would be strange if a litigant complaining of harm it caused itself, harm it could have avoided or repaired, or harm it still can avoid or repair could get such serious relief.

Similarly, it would be strange if vague assumptions and bald assertions, rather than detailed and specific evidence, could support the granting of such serious relief. [ 57 ] Here the Applicant chose not to submit any elector signatures. As discussed above, he provides no evidence to support his view that door-to-door canvassing for elector signatories was unachievable due to public health concerns.

There is also no evidence that he considered any approach which would mitigate the Covid-19 risks, attempted to implement the collection of the signatures in a method other than door-to-door canvassing, or sought advice from Elections Canada with respect to either instance before submitting his nomination paper and request for an exemption to the statutory requirement for 100 witnessed elector signatures.

Accordingly, in my view, the Applicant has not established that the harm was unavoidable. [ 58 ] Finally as to the balance of convenience, in determining balance of convenience, the Court must consider which of the two parties will suffer greater harm from the granting or refusal of an interlocutory injunction pending a decision on the merits ( RJR MacDonald at p 334).

The factors to consider in determining the balance of convenience will vary depending on the circumstances of the individual case, but in all constitutional cases, the public interest is a special factor which must be considered in assessing where the balance of convenience lies ( RJR-MacDonald at pp 342–343).

Where a private applicant alleges that the public interest is at risk, that harm must be demonstrated ( RJR MacDonald at pp 344). [ 59 ] I n RJR MacDonald , the Supreme Court of Canada addressed public interest in the context of the balance of convenience in Charter cases at 344-346, stating: When a private applicant alleges that the public interest is at risk that harm must be demonstrated. This is since private applicants are normally presumed to be pursuing their own interests rather than those of the public at large.

In considering the balance of convenience and the public interest, it does not assist an applicant to claim that a given government authority does not represent the public interest. Rather, the applicant must convince the court of the public interest benefits which will flow from the granting of the relief sought. … In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant.

This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

A court should not, as a general rule, attempt to ascertain whether actual harm would result from the restraint sought. To do so would in effect require judicial inquiry into whether the government is governing well, since it implies the possibility that

the government action does not have the effect of promoting the public interest and that the restraint of the action would therefore not harm the public interest. The Charter does not give the courts a licence to evaluate the effectiveness of government action, but only to restrain it where it encroaches upon fundamental rights. (Emphasis in bold added). (See also Jansson at para 25) [ 60 ] In this matter, Canada filed the affidavit of Emily Atkinson, counsel at the Department of Justice, Canada, affirmed on October 2, 2020 [Atkinson Affidavit].

This provides excerpts of publically available government documents that speak to the requirement that prospective electoral candidates include, with their nomination papers, witness signatures of electors from the electoral district in which they intend to run. This includes the Royal Commission on Elector Reform and Party Financing [Lortie Report], submitted to the Governor General in Council in November 1991. The Lortie Report found that it was not unreasonable to place conditions on prospective electoral candidates, including signature requirements of nominations.

The Atkinson Affidavit also included the recent An Interim Report in Response to the Chief Electoral Officers’ Recommendation for Legislative Reforms Following the 42 nd General Elections from the Standing Committee on Procedure and House Affairs , dated May 22, 2018, which was concurred with by the House of Commons. This report rejected Chief Electoral Officer’s recommendation to remove the CEA signature requirements.

The recommendation was rejected on the basis that the requirements serve the purpose of a disincentive that reduces the number of frivolous candidates. [ 61 ] The point being that signature requirements have a long history, have been revisited as recently as 2018 and that ss 66(1)(e)(

f) and (

g) and 66(4) remain valid and existing legislative requirements. Accordingly, the balance of convenience favours Canada. [ 62 ] As the Applicant has not satisfied the tripartite test, the motion for an interlocutory injunction is dismissed. Costs [ 63 ] The Applicant submits that he has brought this motion as he genuinely believes that the CEA s 66(1) and 66(4) requirements infringe the right to run for public office.

He is young, 27, and should he be unsuccessful, cannot afford a large award of costs. [ 64 ] The Chief Electoral Officer submits that it should be awarded costs as against the Applicant in the amount of $2000, which is below the tariff. [ 65 ] Canada advises that it seeks $500.00 in costs. [ 66 ] Taking into consideration the last minute nature of this motion, the fact that this issue is not new to the Applicant although the tie to Covid-19 is novel, I am exercising my discretion and ordering that the Applicant shall pay the lump sum, all inclusive amount of $500 to each of the Chief Electoral Officer and Canada, in total, $1000.00 ORDER IN T-1153-20 THIS COURT ORDERS that 1 .

The Applicant’s motion for an interlocutory motion is dismissed; 2 . The Applicant shall pay the lump sum, all inclusive amount of $500 to each of the Respondents, the Chief Electoral Officer and Canada, in total, $1000.00. "Cecily Y. Strickland" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1153-20

STYLE OF CAUSE: TOMAS SZUCHEWYCZ v ATTORNEY GENERAL OF CANADA AND CHIEF ELECTROAL OFFICER PLACE OF HEARING: Videoconference by Zoom DATE OF HEARING: October 5, 2020 ORDER AND REASONS STRICKLAND J. DATED: OCTOBER 6, 2020 APPEARANCES : Tomas Szuchewycz For MR. SZUCHEWYCZ (On his own behalf) Jacob Pollice and Emily Atkinson For The Respondent ATTORNEY GENERAL OF CANADA Nadia Effendi, Ewa Krajewska, and Teagan Markin For The Respondent CHIEF ELECTORAL OFFICE SOLICITORS OF RECORD : Attorney General of Canada Department of Justice Toronto, Ontario For The Respondent ATTORNEY GENERAL OF CANADA Borden Ladner Gervais LLP Toronto, Ontario For The Respondent CHIEF ELECTORAL OFFICE