Callaway v Office of the Election Commissioner, 2023 ABKB 233

Court of King’s Bench of Alberta Citation: Callaway v Office of the Election Commissioner , 2023 ABKB 233 Date: 20230419 Docket: 1901 10761 Registry: Calgary Between: Jeff Callaway Appellant - and - Office of the Election Commissioner Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.R. Ashcroft _______________________________________________________ Introduction [ 1 ] In 2017 Jeff Callaway ran as a candidate for the leadership of the United Conservative Party (UCP).

The Office of the Election Commission received a complaint about the financing of Mr. Callaway’s campaign and investigated. The Election Commissioner (the Commissioner) found that Mr. Callaway breached the Election Finances and Contributions Disclosure Act , RSA 2000, c E-2 [ EFCDA ] and levied administrative penalties against him for multiple contraventions in the total amount of $70,000. [ 2 ] Mr. Callaway appeals the decision of the Commissioner on several grounds. He submits that the Commissioner breached his

duty of procedural fairness by: (

i) failing to provide sufficient notice of the substance of the allegations against Mr. Callaway; and (ii) prejudging the investigation such that there was bias or a reasonable apprehension of bias. [3] Mr. Callaway also argues that the Commissioner made errors in how he assessed the penalties against Mr. Callaway, and theamount of the penalties. [4] The Commissioner made submissions restricted to explaining the legislation, including follow up submissions as requestedby the Court, the standard of review and the record.

The Commissioner also filed Extracts of Key Evidence as the Certified Record wasover 4000 pages long. Standard of Review [5] This review comes before the Court by way of appeal: EFCDA, s 51.03(1), in force at the time. Accordingly, appellatestandards apply: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

Questions of fact, or mixed fact and law,are reviewed on a standard of palpable and overriding error: Vavilov at para 37, citing Housen v Nikolaisen paras 10, 19, and 26-37.Extricable questions of law are reviewed on a standard of correctness. [6] Procedural fairness is assessed as to “whether a party received the procedural fairness they were entitled to at law”: BaronReal Estate Investments Ltd. v. Edmonton (City), 2021 ABCA 64 at para 17.

The level of procedural fairness is determined by certaincommon law factors as enunciated in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817.[1] Relevant Legislation[2] [7] The EFCDA restricts how individuals can contribute to election campaigns. A person ordinarily resident in Alberta cannotcontribute more than $4,000 annually to a registered leadership contestant: ss 17(1).

Individuals are also not permitted to contribute anyfunds which do not belong to them or which have been given or furnished to them for the purpose of making a contribution to aregistered leadership candidate: 34(1).

Similarly, no person can give funds to another for the purpose of contributing to a leadershipcampaign: s 34(1.1). [8] Corporations, unincorporated associations and organizations are prohibited entities which cannot contribute to a registeredleadership campaign: ss 1(1.01); 16(2). [9] Registered leadership candidates are also prohibited from soliciting or accepting contributions which they know or ought toknow are made using funds furnished to an individual for contribution, or which come from a contributor that is a prohibited entity: ss34(2), 35(1).

Under legislation in force since 2018,[3] registered leadership candidates also cannot collude with a third party tocircumvent or attempt to circumvent a contribution limit: s 41.42(2). [10] While the 2017 version of the EFCDA did not set out specific investigative powers of the Commissioner, amendments to theAct in force at the time of the investigation provided direction: Election Finances and Contributions Disclosure Act, RSA 2000, c E-2, ss44.95 – 44.97 as added by

An Act to Strengthen and Protect Democracy in Alberta, SA 2017, c 29, s 132[4]. The Commissioner mayinvestigate any matter that may constitute an offence under the EFCDA: s 44.95. For the purposes of investigation, the Commissioner isgranted the powers of a commissioner under the Public Inquiries Act, RSA 2000 c P-39. These powers include the authority to summonany person to give evidence orally or in writing and to produce documents, and to have orders enforced via contempt proceedings: s44.96; Public Inquiries Act, ss 4-6.

The Commissioner shall provide notice to a person being investigated unless doing so wouldcompromise the investigation, and it must give an investigated person reasonable notice of the substance of the allegations against themand a reasonable opportunity to present his or her or its views: s 44.97. [11] If the Commissioner finds that a contribution was improperly made or accepted, it may order that amount to be returned to thecontributor: EFCDA s 51.1(1).

The Commissioner may also issue a letter of reprimand or an administrative penalty if the Commissioneris of the opinion that an individual has contravened any provision of the EFCDA: s 51.01. Decision of the Commissioner [12] An anonymous complaint was made on November 30, 2018 regarding the conduct of Mr. Callaway. An investigation wasundertaken. The extensive record filed by the Commissioner includes detailed investigation and interview transcripts as well as emailsand texts. Various banking transactions and records of monies received by Mr. Callaway’s campaign were also reviewed.

Attempts tocontact and serve Mr. Callaway were documented. [13] Following the investigation, the Commissioner made numerous factual findings as set out in the Notice of AdministrativePenalty, reproduced in part, and summarized below. [14] Near the end of August 2017, the United Conservative party (UCP) released the requirement for prospective leadershipcandidates to pay entry fees. This news created a sense of urgency amongst some on the Jeff Callaway campaign team. [15] On September 8, 2017, Mr. Callaway communicated with Mr. Cameron Davies, the deputy campaign manager or strategist,

that the campaign was not raising sufficient funds and that Mr. Callaway had a solution. Mr. Callaway had a friend called Robyn Lore. Robyn Lore was the director and majority voting shareholder of a company called Agropyron Enterprises Ltd. [ 16 ] Mr. Callaway instructed Davies to meet Lore. Lore was going to give Davies a bank draft, and Davies would withdraw a large amount of money from Davies’ account with monies furnished to him by Lore. [ 17 ] Mr. Callaway tasked Davies to find individuals to whom Davies could furnish funds in order to make contributions to the Callaway campaign.

These directions were given to Davies prior to the planned meeting at the bank. [ 18 ] In a series of communications with Davies, Mr. Callaway and Davies identified individuals who had agreed to accept furnished funds and make contributions of those furnished funds to the Callaway campaign. [ 19 ] On September 11, 2017, Davies met Lore outside the RBC bank branch at Bankers Hall. Lore had his own bank wire $60,000 into Davies’ personal bank account at RBC. The monies were from Agropyron. After the money was confirmed transferred, Davies withdrew from his account bank drafts and cash.

These monies were intended to give to the individuals who had agreed to make contributions to the Callaway campaign using furnished funds. [ 20 ] Once the monies were withdrawn from Davies’ account, Lore and Davies contacted Mr. Callaway, and he came to the bank. Davies was then instructed by Mr. Callaway to hand the cash over to Mr. Callaway. This hand off occurred inside the bank at Mr. Callaway’s direction. Mr. Callaway would then give it to the straw contributors. [ 21 ] Mr. Maitland arrived at the bank about 20 minutes after Mr. Callaway arrived. Mr. Callaway gave Maitland a bank draft in his name. Mr.

Maitland then walked into the CIBC branch of Banker’s Hall and deposited the bank draft into his account and withdrew $3,000 in cash. He then gave the cash to either Mr. Callaway or Davies. [ 22 ] In response to Mr. Callaway’s direction and instruction, Davies, using the Agropyron monies, furnished funds to various individuals for the purposes of contributing those furnished funds to Mr. Callaway’s leadership campaign. [ 23 ] On the morning of September 11, 2017, Davies’ personal bank account at the RBC brank opened the business day with a balance of approximately $1000.

On that same day Davies’ personal bank account received a deposit credit of $60,000 from Agropyron and again on that same day, the entire $60,000 was withdrawn from Davies’ account in a series of transactions. [ 24 ] On the morning of September 11, 2017, the Jeff Callaway Campaign bank account opened the business day with a balance of $4370.14. A total of $57,500 was required by the end of the following day in order for Mr.

Callaway to continue in the UCP leadership contest. [ 25 ] The Chief Financial Officer for the Callaway Campaign recorded information for September 11, 2017, concerning the contributions and deposits involving the Jeff Callaway campaign account by certain individuals. Mr. Callaway deposited $23,000 into the Callaway campaign bank account in a single deposit on September 11, 2017. [ 26 ] The Chief Financial Officer recorded information about the contributions and deposits involving the Jeff Callaway Campaign account for September 12, 2017, totalling $30,500.

These contributions were deposited into the Jeff Callaway campaign account in two separate deposits. [ 27 ] On September 12, 2017, a money order in the amount of $57,500 was withdrawn from the campaign bank account and paid to the UCP as a leadership contestant fee and a leadership compliance deposit. [ 28 ] The Commissioner found that Mr. Callaway took planned and coordinated steps to obscure the actual source of the funds furnished to the straw contributors.

The Commissioner stated that the scheme required careful planning and coordination and there was an intent to circumvent or attempt to circumvent a contribution amount limit under

Part 3 of the EFCDA . [ 29 ] The Commissioner found that Mr. Callaway circumvented or attempted to circumvent a contribution limit under

Part 3 of the EFCDA through collusion contrary to

section 41.42 (1) . The Commissioner assessed a penalty against Mr. Callaway in the amount of $15,000. [ 30 ] The Commissioner found that Mr. Callaway directly or indirectly solicited or accepted a contribution in the amount of $60,000 from Agropyron Enterprises Ltd. knowing or having ought to have known that the prospective contributor was a prohibited person or entity contrary to section 35 (1) (

a) of the EFCDA . The Commissioner assessed a penalty against Mr. Callaway in the amount of $8000. [ 31 ] Mr. Callaway was also found by the Commissioner to have knowingly made a false statement in an application return, financial statement, report or other document, which is a corrupt practice and contrary to

section 46 and 176 of the Elections Act. The Commissioner assessed a penalty against Mr. Callaway in the amount of $5000. [ 32 ] In a series of additional findings involving a total of 21 contraventions and 18 different individuals, Mr. Callaway was found to have accepted illegal contributions contrary to section 34(2) of the EFCDA . He was also found to have furnished funds to certain individuals for the purpose of having those individuals make a contribution of those funds to a registered leadership contestant, contrary to section 34(1.1) of the EFCDA . For each of these contraventions, Mr.

Callaway was assessed a $2000 penalty. [ 33 ] The cumulative amount of the penalties was $70,000. On July 19, 2019, the Commissioner issued his decision titled Notice of Administrative Penalty (the Decision). [ 34 ] A review of the Certified Record establishes a comprehensive overview of the evidence before the Commissioner. The evidence supports that while Mr. Callaway denied that the scheme was his idea and minimized his involvement, it was open to the

Commissioner to find that Mr. Callaway contravened the Act. For example: Texts acknowledged to be from Jeff Callaway to Cam Davies“.. We need a bank draft to the PAC, and then the PAC needs to bank draft to 7-10 people, and those people need to bank draft the campaign.

Or large donor bank drafts 7-10 people and those people bank draft the Campain (sic)..): Extracts of Key Evidence from the Respondent- S2 Interview with Jeff Callaway referring to the above text“- Cam would gift some people some funds and then they’d make a donation to the campaign ”, Transcript page 128 lines 12-14 Interview with Cam Davies on March 15, 2019 “ .. I was approached by Jeff Callaway, and he said, “We’re having a challenge raising funds, ...and he said, Well, we’ve got a –we’ve got a solution. I said, Okay, what’s that?

And he said, Well, I have a friend of mine who will hand you a bank draft and go to the bank together and deposit a bank draft, and he’ll stay with you until you withdraw a large amount of money out of your account ,...” Transcript p 27 lines 22-27 p. 28 lines 2-6. Text from Cam Davies to Lore: “ Cam Davies here, Jeff Callaway asked me to call you to discuss a few things .” Extracts of Key Evidence Tab 132.

Interview with Cam Davies on March 15, 2019 “ Um—so he (Lore) handed me this bank draft and he stood with me in the line up, talked to the manager, um, and handled that aspect of it....Um, I was then instructed to hand over the cash to Callaway, who would then give it to the financial agent, and donation forms would be assigned. I was also asked to find five individuals that I could provide bank drafts to make donations for the campaign ... Transcript p. 29 lines 2-15. Interview with Cam Davies on March 15, 2019 “ David was an individual I solicited to give a donation.

I explained to him that, um, the money was going to be furnished by someone else and that all I required from him was his donation form and that the money was being handled by someone else ”. Transcript p. 114 lines 2-8. Interview with Jeff Callaway: “ Well, strategy basically was, un—well, to be blunt about it, um, Cam—Cam said, We make a –I can make some gifts to individuals. No requirement for them to make a donation to the campaign. If they choose to make a donation, they can. If they don’t, they don’t. But we were able to get donations coming into the campaign so that we could keep going ”.

Transcript p. 106 lines 8-16 Interview with Jeff Callaway “ I looked at him (Lore) as a primary fundraiser for my campaign, for sure ”. Jeff Callaway interview p. 102 lines 23-24. Interview with Jeff Callaway “ I know that Robyn and Cam met. Um, I understand that Robyn brought the money to Cam, but then subsequent to that I don’t really know any other details. Like, I don’t. I don’t . I don’t recall any other details ”. Transcript p. 134 lines 18-23. Interview of Mr. Scase: “ I remember it being right around that September.

I can’t—I remember coming home and he (Callaway) had phoned and basically.....and asked whether we could donate. Transcript p. 1011-17; ....“ Oh, something to the effect that, you know, you’ll be—you won’t be out of pocket and that this is permitted or something . ..” Transcript page 16 lines 9-11 Jeff Callaway campaign Business Account Statement August 14, 2017 -September 14, 2017, showing account balance at $4370.14 at September 7. E Transfers in on September 11.

Deposits into account on September 11 and 12, 2017 Withdrawal of $57,515: Certified Record Volume 4 Tab 115 Cameron Davies’ RBC September 2017 bank statement: Cameron Davies’ personal bank account opened on September 11, 2017, with a balance of approximately $1000. On that same day Davies’ personal bank account received a deposit credit of $60,000 from Agropyron. On that same day, the entire $60,000 was withdrawn from Davies’ account in a series of transactions: Certified Record Volume 2 Tab 60.

Whether the Commissioner failed to provide meaningful notice of the substance of the allegations and an opportunity to respond [ 35 ] The main argument of Mr. Callaway pertaining to procedural fairness is that Mr. Callaway received insufficient notice to be able to meaningfully respond to the Commissioner’s investigation and findings. Mr. Callaway says that the Commissioner’s first communication was received by him May 21, 2019, and he agreed to be interviewed on July 13, 2019. The Commissioner gave his Decision on July 19, 2019. Counsel for Mr.

Callaway argues that 60 days notice has been interpreted by this Court to be reasonable under the statute: Rumpel v Alberta (Election Commissioner) , 2019 ABQB 938 . [ 36 ]

Section 44.97(1.1) of the EFCDA governs the general requirement for notice to a person subject to investigation. It provides that: At any time before completing an investigation referred to in

section 44.95(b), the Election Commissioner shall notify any person or organization who is the subject of the investigation that the person or organization is being investigated and inform the person or organization of the nature of the matter being investigated, unless the Election Commissioner believes that doing so would compromise or impede the investigation.

Subsection (3) provides that: The Election Commissioner shall not make any adverse finding against a person or organization unless that person or organization has had reasonable notice of the substance of the allegations and a reasonable opportunity to present his or her or its views. [ 37 ] The effect of these provisions is that the Commissioner may notify an investigated person of the investigation at any time, or not at all, but if he is to make any adverse finding against that person, he must give that person notice of the substance of the allegations before doing so.

[ 38 ] A brief review of the history of the matter is necessary to provide full context in assessing whether reasonable notice of the substance of the allegations was provided to Mr. Callaway. [ 39 ] The Commissioner launched his investigation after receiving a complaint letter on November 30, 2018. [ 40 ] The Commissioner issued, on March 11, 2019, “ Election Commissioner Order #1 Regarding Contributions to the Jeff Callaway Campaign that are in Contravention of the Election Finances and Contributions Disclosure Act (the March 11 Order).

The March 11 Order is addressed to both Jeff Callaway and the campaign’s Chief Financial Officer and advises that the Commissioner has concluded that “a number of the contributions made to the Jeff Callaway campaign were made in a manner that does not comply with the EFCDA ”. [ 41 ] The Commissioner outlined the specifics of that noncompliance as it related to different people and contraventions. The March 11 Order then instructed Jeff Callaway, as the registered leadership candidate, that irregular contributions were to be returned and ordered Mr.

Callaway to provide particulars about the identity of the contributors and the impugned transactions. The Commissioner noted that the matter remained under investigation. The March 11 Order was personally served on Mr. Callaway at his home. [ 42 ] On March 16, 2019, an investigator followed up with Mr. Callaway via email and requested an interview. No response from Mr. Callaway was received by the Commissioner. [ 43 ] On March 19, 2019, an investigator made calls to Mr. Callaway and left voicemail messages. That evening, counsel for Mr. Callaway emailed the Commissioner to advise of their representation of Mr.

Callaway and others. Counsel declined to advise whether they would accept service on Mr. Callaway’s behalf. [ 44 ] On March 21, 2019, an investigator served Mr. Callaway a document titled Election Commissioner Order #2 Regarding Contributions to the Jeff Callaway Campaign that are in Contravention of the Election Finances and Contributions Disclosure Act (the March 21 Order) by email and made attempts at personal service. The investigator attended at Mr. Callaway’s workplace to serve the document and, upon being advised that Mr. Callaway was working remotely, attended Mr. Callaway’s home.

The investigator also left Mr. Callaway a voicemail. The March 21 Order, like the March 11 Order, was addressed jointly to the Chief Financial Officer and to Jeff Callaway. Similarly, it also gave further information about the ongoing investigation, made findings that irregular contributions were accepted by the CFO, and again instructed Mr. Callaway to return contributions found to be improper and to provide further particulars about the identity of the contributors and the impugned transactions. [ 45 ] On March 29, 2019, counsel for Mr.

Callaway and others applied to this Court for an injunction restraining the Commissioner’s investigation on the basis of alleged bias. Justice Kirker (as she then was) declined to issue the injunction and dismissed the injunction application on April 3, 2019: Callaway v Office of the Election Commissioner (3 April 2019), Calgary, 1901-04554 (Alta QB) [ Callaway Injunction ]. [ 46 ] On April 8, 2019, the Commissioner issued a summons (the “April 8 Summons”) via email to Mr. Callaway and his counsel. The April 8 Summons provided updates about the progress of the investigation and attempts at contacting Mr.

Callaway. The Commissioner directed Mr. Callaway to attend an interview later that month. The Commissioner also directed that Mr. Callaway bring to the interview relevant documents and particulars pertaining to campaign donations. The Commissioner invited Mr. Callaway to provide a written statement explaining his version of events and responding to allegations that Mr. Callaway’s activities related to the campaign donations breached the EFCDA . Mr.

Callaway does not appear to have attended at the interview. [ 47 ] The Commissioner issued another joint letter on May 21, 2019, to the Chief Financial Officer and Jeff Callaway (May 21, 2019 Order). The May 21, 2019, Order is similar to the March Orders. It references the ongoing investigation in response to irregular political contributions that were made to the Jeff Callaway campaign. It also makes similar findings to the previous Orders and directs that Mr. Callaway return the improper campaign contributions, identify the contributor(

s) of these funds and the circumstances of the impugned transactions. [ 48 ] A more significant second letter dated May 21, 2019, titled Notice of Investigative Findings was also served on Mr. Callaway (the Notice). This Notice references administrative penalties and reprimands already issued to other people who contributed to the Jeff Callaway campaign. The Notice also indicates that the Commissioner has information to suggest that Mr. Callaway “may have played a role in these irregular contributions”. The Notice outlines specific evidence regarding Mr. Callaway’s involvement and directs Mr.

Callaway to an interview on June 21, 2019. [ 49 ] On July 13, 2019, Mr. Callaway was interviewed by an investigator at the office of his legal counsel. On July 19, 2019, the Commissioner provided Mr. Callaway with his conclusions and issued his Decision. May 21, 2019 Notice Provides the Substance of the Allegations [ 50 ] The May 21 Notice is 19 pages long and provides excerpts of the relevant statutory sections and the specific information discovered during the investigation.

The Notice concludes with a particularized analysis describing which sections the Commissioner has reason to believe were contravened by Mr. Callaway. [ 51 ] The Notice says: Before making an adverse finding against you and deciding on an appropriate penalty as it relates to these findings, I will consider all the information obtained during the investigation thus far and give you an opportunity to respond. You are therefore, invited to respond to this Notice and include any information you consider to be relevant to my determination of an adverse finding and penalty.

You have until June 21, 2019, to provide your response, after which I will make my determination. (page

19) [52] I find that Mr. Callaway received the substance of the allegations through the May 21, 2019, Notice, which was 53 daysbefore the July 13, 2019, interview. Commissioner Allowed Mr. Callaway a MeaningfulOpportunity to Respond [53] In assessing whether the above notice period provided the appropriate degree of procedural fairness, I am guided by thefactors described in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at paras21-28. [54] The first Baker factor relates to the nature of the decision being made and the process followed in making it.

If theadministrative process closely resembles the judicial process “much of those governing principles should be imported into the realm ofadministrative decision making”: ibid at para 23. This factor points towards a mid range level of procedural fairness.

While there is anopportunity provided for a party who is being adversely affected to have a meaningful opportunity to respond, there is no formal hearingprocess provided with rights of questioning or cross examination. [55] The second Baker factor is the nature of the statutory scheme and the terms of the statute pursuant to which the bodyoperates. “Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, orwhen the decision is determinative of the issue and further requests cannot be submitted”: Baker at para 24.

There is no internal appealprocess of the Commissioner’s decision; however, Mr. Callaway has a right to, and sought, a statutory appeal. The lack of an internalappeal but provision for a statutory appeal indicates a lower to mid range level of procedural fairness. [56] The third Baker factor is the importance of the decision to the individual affected. The more important the decision is to thelives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that willbe mandated.

In this case, the Commissioner proceeded by way of administrative monetary penalty, and the Commissioner is limited inthe amount for each contravention that can be levied. That said, I appreciate that the imposition of numerous penalties can createconsiderable financial liability and hardship, especially given the requirement that the penalty must be paid within 30 days: EFCDA s51.01(7). In this case, the total cumulative amount of penalties was $70,000, a significant sum.

Additionally, there is stigma whichattaches to certain findings of the Commission; for example, the contravention related to collusion, and filing a false statement which isidentified as a corrupt practice in the legislation. I find this factor weighs more towards a moderate level of procedural fairness in Mr.Callaway’s case. [57] The fourth Baker factor relates to the legitimate expectations of the person challenging the decision.

Legitimate expectationsarise from representations concerning the procedure to be followed; the doctrine works to hold government actors to their undertaking:Canada (Attorney General) v Mavi, 2011 SCC 30 at para 68. The original Notice indicated that Mr. Callaway must attend at aninterview on June 21, 2019. This interview actually took place on July 13, 2019. The reasonable expectation was that Mr. Callawaywould be allowed a meaningful opportunity to respond and that he had until at least July 13, 2019, to provide a response. [58] While not specifically argued by Mr.

Callaway, a review of the transcript does indicate that the investigator was prepared toaccept potential additional submissions after July 13, 2019. However, it was not entirely clear from the transcript that Mr. Callawayactually intended to provide additional submissions; his counsel at the interview also responds that another option would be to cover itoff right in the interview, even if it meant staying late. (Transcript p. 46 lines 1-12). The investigator also advised Mr.

Callaway near theend of the interview that while he was prepared to consider additional information, it needed to be provided in the next few days: Interview with Jeff Callaway, Extract of Key Evidence, Transcript p. 199 lines 21-27, p. 198 lines 1. [59] I was not pointed to additional written submissions provided to the Commissioner by Mr. Callaway, or any communicationfrom Mr. Callaway, requesting any additional time extension from Mr. Callaway over and above these “next few days” which theinvestigator allowed. I find that the additional opportunity provided by the investigator for Mr.

Callaway to provide submissions did notact outside of the legitimate expectations of the parties to extend the length of the notice period more than a few days past the interviewdate. I find that the legitimate expectations of Mr.

Callaway, in terms of the procedure, accorded with procedural fairness. [60] Finally, the fifth Baker factor requires consideration of “...the choices of procedure made by the agency itself, particularlywhen the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise indetermining what procedures are appropriate in the circumstances”: Baker at para 27. In the case at hand, the statute requires that theCommissioner provide Mr. Callaway with the substance of the allegations and a meaningful opportunity to respond.

The Act is silent interms of the procedure to be followed, allowing the Commissioner to exercise his expertise and discretion in choosing the appropriateprocedure to fulfill these requirements. This legislative intention points to a low range level of procedural fairness. [61] Upon my consideration of the Baker factors as applied to Mr. Callaway’s circumstance, I find that a low to medium level ofprocedural fairness was required in Mr. Callaway’s case.

A notice period of 53 days, extended by a couple of days longer in theinterview by the investigator, to respond to specific provisions in the Notice, provided the requisite degree of procedural fairness. [62] Counsel also argued that the Commissioner delivered approximately 1400 pages of materials during his interview on July 13,2019, and that Mr. Callaway should have been given an additional opportunity to respond to this material. However, a review of theCertified Record does not support such a voluminous document drop. The transcript indicates that the investigator put various documentsin front of Mr.

Callaway to facilitate the questioning. The transcript shows a discussion between Mr. Callaway and others regarding thedocuments. Other than a request to provide additional submissions to respond to the May 21 Notice in writing which, as above, was

agreed to but not provided, there is no request from Mr. Callaway’s counsel to have more time to review any of these documents put to Mr. Callaway. Given that Mr. Callaway was entitled only to a low to mid range level of procedural fairness, I do not find that the Commissioner was required to disclose all these documents prior to the interview or allow Mr. Callaway additional time after the interview to respond to these documents. [ 63 ] While the Commissioner appears to have rejected much of Mr. Callaway’s information, I also note that Mr.

Callaway gave fulsome information and his position on the relevant issues during the interview including: the strategy that was put forward to gift money to individuals (Transcript p. 106 lines 8-16, page 110 lines 2-5, page 116 lines 16- 20), Mr.

Callaway’s discussions with Robyn Lore regarding the money (Transcript p. 107 lines 9-27, page 108, 109, 110), Robyn Lore gave $60,000 to Cam Davies (Transcript p. 103, lines 2021), whether Jeff Callaway knew the idea was legal (Transcript p. 116 lines 9-27, p. 117 lines 1-27, p. 189 lines 25-27, page 190 line 1- 2, 16-24) Jeff Callaway’s role in assembling and calling contributors (Transcript p. 118 lines 23-27, page 119, 120, lines 26-27, page 121, lines 2-8), explanation of the text discussion between Callaway and Davies referring to assembling a PAC and bank draft (Transcript p. 126, 127 lines 12-13, page 128 lines 1-14 that Robyn Lore and Cam Davies met (Transcript p. 134 lines 18-23) Mr.

Callaway had no recollection of attending the bank that day with Robyn Lore and Cam Davies (Transcript p. 135 line 19) where the money came from for Mr. Maitland’s contribution-“I don’t recall” (Transcript p. 132 lines 24-27, page 133 line 11) where the money came from for all of the relevant contributions-“I don’t recall, yeah” (Transcript p. 133 lines 1-17, p. 134 lines 1-6) Mr.

Callaway had no recollection of making contributions into the Jeff Callaway campaign account ‘cause he left that to his CFO for proper recordkeeping’. (Transcript p. 138 lines 15-18) [ 64 ] Near the end of the interview, the investigator asks Mr. Callaway “..is there anything else that you want the Election Commissioner to know? Like, anything else that you want to add to what we’ve talked about that I haven’t brought up?” Mr.

Callaway responds again that he “always thought that this was a within the rules, the donation rules, strategy....””. (Transcript p. 191 lines 13-27) [ 65 ] Assessing whether the Commissioner offered Mr. Callaway a meaningful opportunity to respond must also be considered within the larger context that the Notice followed several other Orders and a Summons. The various documents provided by the Commissioner describe the efforts made to contact and serve Mr. Callaway including repeatedly seeking opportunities from Mr. Callaway to meet and obtain his version of events.

The Commissioner states, “You have not returned their calls, emails or voice messages”: Notice page 3. The Commissioner’s findings on this point are supported by a review of the investigator’s various notes in the Certified Record. The April 8 Summons, which was issued after the injunction application had been dismissed, also invited Mr. Callaway to attend an interview on April 25, 2019, to provide written submissions, or both. Mr.

Callaway acknowledged in his July 13 interview that he knew of the attempts to contact him. [ 66 ] Given the 53 days notice between service of the Notice and the interview, the four hour wide ranging comprehensive interview, the specific communication from the investigator that they needed to hear from Mr. Callaway in the next few days if there were any additional submissions, and no request for an extension from Mr. Callaway, I do not find that Mr. Callaway was treated unfairly. Mr. Callaway bears the onus of showing a procedural fairness breach and I find he has not discharged his onus. [ 67 ] Mr.

Callaway’s authorities are also distinguishable. In Rumpel , the individual received notice from the Commissioner after the deadline to respond had passed, and the individual’s attempts to reach the Commissioner were disregarded. In Aheer v Alberta (Election Commissioner) 2022 ABQB 513 , the individual likewise did not receive notice of findings of an investigation for overcontribution until it was too late. The facts of these cases do not reflect the circumstances in the case before me. Here, Mr.

Callaway was given notice of the findings of the investigation as the investigation progressed, and the Commissioner, through his investigator, actively sought Mr. Callaway’s participation and his side of the story. It was Mr. Callaway that received the messages and chose to let them languish, not the Commissioner. [ 68 ] Mr. Callaway had ample time to consider the substantive allegations against him, prepare his response, or seek additional time if necessary. I find that Mr. Callaway was provided with an opportunity to meaningfully respond to those allegations. This ground of appeal is dismissed.

Whether the Commissioner prejudged the outcome of his Decision such that there was a reasonable apprehension of bias [ 69 ] Mr. Callaway raises several arguments relating to bias. Mr. Callaway submits that the Commissioner prejudged the outcome of the investigation. [ 70 ] Mr. Callaway argues that the Commissioner’s unfairness “appears to be a pattern in this saga as it relates to him” citing the comment of Justice Kirker (as she then was) in her April 2019 injunction decision in this matter.

Counsel points to Justice Kirker’s comment that “it is as least arguable that, viewed in the context of the broader, multi-faceted investigation of the complaint regarding irregular contributions made to Appellant’s leadership campaign, an objective and informed bystander would not see it as the Elections Commissioner does”: Callaway Injunction at 5. [ 71 ] Mr. Callaway also submits that the Commissioner had already reached a conclusion that some campaign contributions breached the EFCDA in the March 11 Order and the May 21 Order.

[72] Mr. Callaway further argues that the six-day turn around between his interview with the Commissioner and the release of theCommissioner’s decision shows that the Commissioner “failed to consider any of his commentary or evidence that he provided at thesaid interview”. [73] Finally, Mr. Callaway argues that the Elections Commissioner’s discussion of Appellant being approached to be a “darkhorse” candidate to target Brian Jean for the benefit of Jason Kenney coloured the Commissioner’s view of his investigation of Mr.Callaway. Mr.

Callaway denies that he participated in any such plan and points out that it is not illegal to have such a candidate in theelection leadership race.

The Commissioner was not biased nor has a reasonable apprehension of bias been established [74] The test for reasonable apprehension of bias is whether a reasonably informed person, viewing the matter realistically andpractically, would think it is more likely than not that the decision maker, whether consciously or unconsciously, did not decide fairly:Donn Larsen Development Ltd. v The Church of Scientology of Alberta, 2007 ABCA 376 at para 10, citing R v S (RD), [1997] 3 SCR484, at para 111. The burden of proof is on Mr.

Callaway and “[t]here must be a real likelihood or probability ofreasonable apprehension of bias not just a mere suspicion”: Committee for Justice and Liberty v Canada (National Energy Board), (SCC), [1978] 1 SCR 369 at 394-395; College of Physicians and Surgeons of Albert v Ali, 2017 ABCA 442 at para 22. [75] Justice Kirker’s remarks in the Callaway Injunction decision were made in in the context of deciding whether to issue aninjunction restraining the Commissioner from investigating the campaign financing.

As Justice Kirker noted, the first step of the test foran injunction is whether there is a serious question to be tried, in the sense that the claim is not frivolous or vexatious: RJR –MacDonald Inc v Canada (Attorney General) at paras 49-61; Callaway Injunction at 5. A claim which is not frivolous is, necessarily,at least arguable. Finding that a case is at least arguable is well short of making a final determination on the matter.

As Justice Kirkerremarked at the outset of her reasons, her decision “cannot, therefore, be taken as a final determination on the matter”: CallawayInjunction at 2. [76] With respect to the prior Orders issued by the Commissioner, I do not find that these earlier findings would cause a reasonablyinformed person to believe that the Commissioner did not decide fairly. There were findings that a number of contributions made to theJeff Callaway campaign were made in a manner that did not comply with the EFCDA. However, there was no finding against JeffCallaway.

The Orders directed Jeff Callaway, “as the registered leadership contestant”, to return the contribution money and reveal thecontributors and the circumstances. Notably, the Commissioner also recognized that Mr. Callaway may not know who the contributorswere stating that: “In the event that it cannot be determined who made the contributions(

s) that were made or accepted in contravention of the EFCDA, the$26,500 Ordered returned must be paid into the General Revenue Fund. ...” [77] I do not find that the Commissioner’s prior Orders directing Mr. Callaway to return monies from his campaign raised areasonable apprehension of bias; no findings were made against Mr. Callaway contravening the legislation. [78] A review of the record supports that the Commissioner remained open to Mr. Callaway’s view of the events. Each of theOrders seeks information from Mr. Callaway, and the April 8 Summons directs Mr. Callaway to an interview, which Mr.

Callaway couldsupplement with written submissions. In the May 21, 2019, Notice the Commissioner writes that “I have investigated information tosuggest that you may have played a role in these irregular contributions... The purpose of this letter is to give you an opportunity torespond before a final determination is made.” The Commissioner’s advice that the information received to date suggests that he mayhave played a role is reasonable, given the Commissioner’s work up to that point in time and when considering Mr. Callaway had,despite several requests, not presented himself for interviewing.

A reading of the May 21 Order, when considering the entire context ofevents up until that point in time, indicates that the Commissioner still remained open to receiving Mr. Callaway’s version of events. [79] A review of the Callaway interview transcript and the Commissioner’s Decision also supports that the Commissionerconsidered Mr. Callaway’s information. At page 12 paragraph 14 of his Decision, the Commissioner reiterates information provided byMr. Callaway in the interview. The Commissioner rejected much of Mr.

Callaway’s information; however, this rejection of Mr.Callaway’s version of events does not mean that the Commissioner was biased. [80] The fact that the Decision was issued promptly following the interview also does not cause me to believe that a reasonableperson would view such as evidence of bias. By July 19, 2019, the Commissioner had been investigating the contraventions for months,and through his delegates, had conducted numerous interviews.

I infer from this extensive investigation which preceded the Callawayinterview that the Commissioner was very familiar with all the relevant information. [81] When considering the full context of the complaint against Mr. Callaway, the interviews and record gathering which hadoccurred to date, the efforts to obtain Mr. Callaway’s version of events, and the comprehensive interview which had occurred on July 13,2019, it was not unreasonable for the Commissioner to issue the Decision promptly. Timely decisions are to be encouraged in theadministrative regimes.

I do not find, on the evidence before me, that a six day turn around between the interview and the Decision isevidence of bias. [82] I also do not find that the Commissioner’s description of the “dark horse” campaign in his Decision contributed to anyreasonable apprehension of bias on his part. The mention of Mr. Callaway being a “dark horse” is embedded in the Decision in adescription of the meeting on July 2, 2017, and not under any analysis of the facts.

I also note that while the investigator did ask Mr.Callaway questions which touched on this alleged plan as it related to contributions, the investigator discouraged Mr.

Callaway in hisinterview from continuing to expand generally on events related to the dark horse scheme (Interview of Jeff Callaway, page 68 lines 4-27,page 69 lines 1-9, 26-27, page 70 lines 1-11) [83] I do not find that any of the foregoing, either alone or collectively, indicate actual bias on the part of the Commissioner or riseto the level of creating a real likelihood that a reasonable person would conclude that the Commissioner, either unconsciously orconsciously, unfairly rendered his decision. This ground of appeal is dismissed.

Nicole Callaway -No Palpable and Overriding Error Made by Commissioner [ 84 ] Mr. Callaway takes issues with the Commissioner’s findings regarding Nicole Callaway. Mr. Callaway was found to have furnished funds to his spouse, Nicole Callaway, to redistribute back to the Callaway leadership campaign. Mr. Callaway was also found to have accepted a contribution from Nicole Callaway knowing, or having ought to have known, that the contribution was contrary to section 34(1). Mr.

Callaway argues that spouses are permitted to split contributions amongst each other and provides a Canada Revenue Agency webpage on federal contributions in support. [ 85 ] The CRA webpage does not assist Mr. Callaway in showing an error made by the Commissioner. It describes the federal political contribution tax credit and provides instruction to assist individuals in preparing their tax returns.

It has no information about legislative restrictions placed on provincial political campaign donations. [ 86 ] Section 34(1) prohibits individuals from furnishing funds which do not belong to them to political campaigns. Section 34(2) of the EFCDA provides that “No ... registered candidate ... shall solicit or accept a contribution if the ... registered candidate ... knows or ought to have known that the contribution is contrary to subsection (1)”.

Accordingly, either real or constructive knowledge will support a finding of a breach. [ 87 ] The Commissioner sets out the nature of the campaign fund distribution scheme throughout paragraphs 11 and 12 of his Decision, including how Mr.

Callaway had found Robyn Lore to provide funds through Agropyron, identified straw contributors to return those funds to the campaign, and that Nicole Callaway was one of the straw contributors. [ 88 ] Nicole Callaway advised in her interview with the investigator that the funds for her contribution did not come out of her account (Extract of Key Evidence, Transcript of Interview July 12, 2019, page 14 lines 2-5). [ 89 ] The Commissioner found that Mr. Callaway knew of how the monies from Agropyron were being redistributed to trusted individual donors.

It was open for the Commissioner to find, given consideration of all of the evidence before the Commissioner, that Mr. Callaway knew or ought to had known that the cash he gave to Nicole Callaway was from a prohibited entity. Finding of Collusion – Commissioner Erred in Law [ 90 ] The Commissioner found that Mr. Callaway circumvented or attempted to circumvent a contribution limit contrary to s 41.42(1) of the EFCDA by colluding with Robyn Lore. [5] The Commissioner issued a penalty of $15,000 for that contravention.

The Applicant initially argued that the penalty was too severe. [ 91 ] In response to follow up queries from the Court, it became clear that the collusion provision was not in force at the time Mr. Callaway was said to have colluded.

Section 41.42(1) cannot be applied retroactively as the provision changes the legal jeopardy of leadership contestants and affects substantive rights: R v RS, [2019] OJ No 5773, 2019 ONCA 906 para 27 . Accordingly, the Commissioner made an error of law in applying a provision of the EFCDA retroactively. [ 92 ] The Commissioner’s finding of collusion is quashed. Whether the Commissioner made palpable and overriding errors in issuing administrative penalties against Mr. Callaway and the quantum of those penalties [ 93 ] Mr.

Callaway argues that the Commissioner erred in assessing the administrative penalties against Mr. Callaway. Mr. Callaway argues that the Commissioner issued global reasons, when considering the required statutory factors, but penalized individually, and the amount of the penalties, when combined, is too severe. Mr. Callaway states that Cameron Davies was fined less even though he was the directing mind of the scheme. Counsel emphasizes that Mr. Callaway’s damaged reputation, including the loss of his employment, were not properly considered by the Commissioner. Mr.

Callaway also argued that he has not had penalties levied in the past, and although mentioned in the Commissioner’s analysis, this fact was not sufficiently weighed. [ 94 ] Pursuant to

section 51.01 of the EFCDA , the Commissioner must consider several mandatory factors when assessing the amount of an administrative penalty: 4) In determining the amount of an administrative penalty required to be paid or whether a letter of reprimand is to be issued, the Election Commissioner must take into account the following factors: (

a) the severity of the contravention; (

b) the degree of wilfulness or negligence in the contravention; (

c) whether or not there were any mitigating factors relating to the contravention ; (

d) whether or not steps have been taken to prevent reoccurrence of the contravention;

(

e) whether or not the person or entity has a history of non-compliance; (

f) whether or not the person or entity reported the contravention on discovery of the contravention; (

g) any other factors that, in the opinion of the Election Commissioner, are relevant. `` [95] As related to the above statutorily required factors, the Commissioner found that the contraventions were severe, involved ascheme to circumvent contribution limits established by law, required a degree of planning and coordination and that Mr. Callaway tooksteps to obscure his own involvement in the scheme. [96] The Commissioner also found that that Mr.

Callaway directed others to participate in certain of the contraventions and that“the success of this scheme relied, at least in part, on leveraging the affinity, friendships and family relations by you, Cameron Davies,and others.” (page 21 of Notice of Administrative Penalty) [97] The Commissioner also found that there was no information to suggest any mitigating factors relating to this contravention,no information to suggest that Mr. Callaway had taken steps to prevent reoccurrence of the contravention and no information to suggestthat Mr.

Callaway had a history of noncompliance prior to his experience on this campaign. [98] The Commissioner found that Mr. Callaway did not report the contravention on discovery of the contravention. [99] No other factors appear to have been considered by the Election Commissioner. [100] First, the fact that the Commissioner did not provide reasons considering the above factors for each contravention separatelydoes not reflect a palpable and overriding error. The Commissioner found that there was a scheme devised by Mr. Callaway, which wasparticipated in by Mr.

Callaway and numerous other individuals to circumvent the funding requirements as set out by law. In this context,assessing the factors in regard to all of the related contraventions with global reasons does not reflect palpable and overriding error. [101] Further, while the Commissioner provided reasons in a global fashion in regard to the amounts of administrative penalties, theCommissioner organized the penalties by way of contraventions and was consistent in the amount of the penalty issued for eachcontravention.

For example, furnishing funds for the purpose of having the person make a contribution of those funds to a registeredleadership contestant contrary to section 34(1.1) of the EFCDA resulted in a penalty of $2000. Accepting a contribution from anindividual knowing that the contribution was contrary to section 34(2) of the EFCDA also attracted a penalty of $2000 in each instance,although involving different individuals. Knowingly filing a false statement in an application return, financial statement, report, or otherdocument filed with the Chief Electoral Officer contrary to

section 46 resulted in a penalty of $5000. Accordingly, when considering thefinding of the Commissioner that there was scheme as well as an assessment of the same amount of penalty for the same contravention, Ifind that a more global approach in assessing the statutory factors did not result in palpable and overriding error. [102] With respect to the argument that Mr. Davies’ was the directing mind behind the scheme and accordingly he should have beenissued the larger fines, the decision of the Commissioner clearly found that Mr. Callaway was intricately involved with the scheme.

Hewas entitled to make this finding on the evidence. I agree that the Commissioner’s decision, consistent with fairness, should reflect thatsimilar contraventions should face similar penalties. However, the increased magnitude of the fine to Mr. Callaway was, at least in part,because of the large number of contraventions involving 18 different individuals and the Commissioner’s finding that Mr. Callaway hadbreached other provisions of the Act (filing a false financial return, collusion, accepting money from a corporation). [103] Mr.

Callaway further argues that he is willing to undertake not to run for elected office, either indefinitely or some time. Thisdoes not seem to have been considered by the Commissioner and appropriately so. An undertaking to eschew politics is not consistentwith the purpose of administrative penalties generally. [104] In terms of whether the appropriate administrative penalties were too harsh, there are several markers in the legislation whichsupport a legislative intent that severe infractions of the legislation may correspondingly be dealt with severely.

Section 51.01(5)contemplates that administrative penalties are considered on a contravention-by-contravention basis—the language of the

section refersto penalties issued for “a contravention” or “each contravention”. The import of this is that the legislators intended and were aware thatseveral contraventions could cumulatively be added together resulting in quite large sums. I also note that administrative penalties are notreserved for unintentional breaches. Further, pursuant to s 51.01(8) the Commissioner may file a notice of administrative penalty with theCourt in the event of non-payment, and the notice is given the same force and effect as if it was a judgment of the Court.

Lastly, thelegislation provides for certain offences to be prosecuted in Court in certain circumstances: Election Act, RSA 2000, c E-1, ss 176 - 177as they appeared in September, 2017. [105] Taken together, these provisions speak to a strong legislative intent to grant the Commissioner considerable means to ensureaccountability in elections and compliance with the EFCDA. This includes, when circumstances require, that an individual bear seriousconsequences for contraventions.

This is consistent with preserving public confidence in our electoral system, and in turn, the integrity ofour democracy. [106] That being said, I am mindful that the overall cumulative amount of the penalties is a significant amount and the requirementfor payment within 30 days is quite harsh. The parties were allowed an opportunity to provide additional follow up oral submissionsaddressing the case of Walton v Alberta (Securities Commission), 2014 ABCA 273 .

In Walton the Court noted the importanceof considering individual circumstances, as linked to the effect of general deterrence, when considering the amount of fines oradministrative penalties. [107] Relying on Walton, in part, Mr. Callaway argues that the Commissioner failed to consider his mitigating circumstances and theindividual financial circumstances of Mr. Callaway. The Commissioner, however, distinguishes Walton as a case where there were nostatutory factors that the Securities Commission were mandated to consider, and thus the Court turned to the common law for guidance.

In any event, counsel for the Commissioner says that Mr. Callaway provided no information to the Commissioner about his financial circumstances, despite being invited to provide submissions on penalty. [ 108 ] The Notice of Investigative findings on May 21, 2019, invites Mr. Callaway (page 19) to “ include any information you consider to be relevant to my determination of an adverse finding and penalty .” The Notice also sets out the potential penalties for certain contraventions of the Act. At the beginning of the July 13, 2017 interview, the investigator informs Mr.

Callaway, as part of his extensive opening comments, as to the various remedies open to the Commissioner if he finds a contravention. The investigator notes that this may include administrative penalties and asks whether Mr. Callaway has any questions: Interview of Jeff Callaway, Transcript p. 14-18 lines 7 and 8. [ 109 ] Significantly, near the end of the interview, the investigator advises Mr. Callaway that the Commissioner must consider certain factors when he is going to impose any type of penalty and specifically invites Mr.

Callaway to provide information on the impact these events and proceedings has had on him (Transcript p. 194 lines 11-18): Investigator: ..you know, one of the things for sure is that the Election Commissioner is obliged to take into considerations when—when he’s –you know, when he’s going to impose any type of penalty and one is very broad. It’s other. So, you know, I’d like to—you know, I’d like, you know, bring some of that information back for him to consider.

So my question is this: like, what type of impact has this whole deal—and I’m not, --I’m including, like everything that’s happened in the media and all that stuff—what kind of impact has this had on you Jeff? [ 110 ] Mr. Callaway responds: “I’m not sure I can describe it in brutal enough terms. I’ve been 20 years, you know, building a career that, um, is being trashed in the media and in the public. ..It’s everything that I have spent, and reputation is just destroyed, gone.. . (Transcript p. 194 lines 25-27, page 195 line 1, 21-23) ..... My family are being followed around, the media are at my office.

I’m getting calls from the media about fines—sorry—but about fines that are coming out of your office before they are ever announced. I’ve never wanted to put my family or friends or clients or anyone, anything like that, in any kind of disrepute.. They feel like they’re criminals..Like, it’s gone. Everything (Transcript p. 195 lines 26, 27, page 196 lines 1-6) ... Absolutely. Losing clients, questions every day I’m asked. Media keeps going.

I can’t have a—hardly a conversation with—without people asking ...you guys go do what you got to do and clearly, I mean...it ruined my life, so, um, I—I don’t know—I don’t know where I go from here` [ 111 ] Black’s law dictionary states: “ Mitigating circumstances” are such as do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability .” The Courts have commented, in the criminal context, that p ublic shaming, stigma and blame through the media may be considered to be mitigating in certain circumstances: R v James 2022 BCSC 1355 at para 43 . [ 112 ] I am mindful of the high degree of discretion that is afforded to the Commissioner and that I must not simply substitute my decision for that of the Commissioner.

Accordingly, I have considered whether I can infer from the Commissioner’s failure to address any potentially mitigating circumstances that he considered the circumstances, and simply exercised his discretion to find that there were no mitigating circumstances. Viewed in this light, the failure to address could be characterized as a minor imperfection in the reasons which is not palpable and overriding. [ 113 ] However, I have found that, pursuant to the Baker factors, Mr. Callaway should be afforded procedural fairness in the low to mid level range.

That would include, in my view, a right to be provided with written reasons addressing, in some manner, the information provided by Mr. Callaway as to stigma and reputational harm in the context of the mandatory factors which the Commissioner must consider. In this case, particular information was sought by the investigator regarding the impact on Mr. Callaway’s life the proceedings had, there was information before the Commissioner that could potentially qualify as mitigating, and Mr.

Callaway faced a potentially very significant administrative penalty which was required to be paid within 30 days. [ 114 ] As set out in Vavilov para 133 : It is well established that individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm: Baker , at para. 25 . However, this principle also has implications for how a court conducts reasonableness review. Central to the necessity of adequate justification is the perspective of the individual or party over whom authority is being exercised.

Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention.

This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood. [ 115 ] With respect, I find the failure of the Commissioner to explain and provide reasons as to why, in his view, there were no mitigating factors is a palpable and overriding error. See also Cherry v Alberta (Chief Electoral Officer) , 2021 ABQB 672 , 2021 CarswellAlta 1999 where Moreau CJC, at paragraph 48, reduced an administrative penalty on the basis that “a larger reduction in penalty for mitigating factors” was required.

[116] Underpinning the reasoning in Walton is that while deterrence is a legitimate factor in assessing penalties, the sanction must beproportionate and reasonable with “sufficient regard to the individual circumstances of the appellant”: Walton para 166. Further, whilediscretionary, the Commissioner may consider “other factors” in his assessment of the appropriate penalty: s 51.1(4)(g). [117] I acknowledge that Mr. Callaway did not specifically provide any information about his financial circumstances and, at the timethe interview was conducted, had not lost his job.

However, in cases of multiple contraventions leading to a very significant fine which ispayable in 30 days, the Commissioner should consider the global amount and reassess whether the total amount still accords with thelegislative intentions and the purposes of the administrative penalty. At some point, extremely large penalties may not, as pointed out inWalton, serve as a deterrent especially if the individual who contravened the Act, is impecunious. [118] The Commissioner’s consideration of the factors is highly discretionary, but he must consider the factors.

Simply finding thatthere was no information to suggest that there was mitigating factors, without any reasons, given Mr. Callaway’s advice of reputationaland other harms, reflects a palpable and overriding error. Further, the Commissioner’s failure to consider the large cumulative amountand whether it was consistent with the purposes of the legislation, including deterrence, also reflects palpable and overriding error. Conclusion [119] Mr. Callaway was provided with the substance of the allegations by the Commissioner and was provided with a meaningfulopportunity to respond.

The Commissioner was also not biased, nor has there been a reasonable apprehension of bias established in thisjudicial review. [120] The findings of the Commissioner that Mr. Callaway breached numerous provisions of the EFCDA, with the exception ofcollusion, are upheld. [121] The Commissioner, however, made palpable and overriding errors with respect to the assessment of the administrative penalties. [122]

Section 51.03(5) of the EFCDA in force at the time of the Commissioner’s decision provided that the Court may confirm,rescind or vary the amount of an administrative penalty. However, I agree with the reasoning of Justice Kiss in Walker v Alberta(Election Commissioner), 2022 ABQB 499 at para 54-59 that the matter can still be remitted back to the Commissioner toreview and assess the appropriate administrative penalties. [123] The EFCDA was amended in 2021 through the Election Statutes Amendment Act, 2021 (No. 2), SA 2021, c 24 s 5(72).

Thisamendment allowed the decision to be remitted back to the Election Commissioner for reconsideration. As stated by Kiss J, “...newlegislation that is procedural is presumed to apply to pending and future cases, unless those procedures affect substantive rights”: R vDinelye, 2012 SCC 58, [2012] 3 SCR 272 at paras 10-11.

Remittance back to the decision maker is an amendment to the legislation thatis procedural in nature and consistent with the jurisprudence that specialized bodies are in the best position to interpret and apply theirhome statute. [124] I remit the administrative penalties back to the Commissioner for reassessment with the benefit of these reasons. Heard on the 25th day of November, 2022 and the 22nd day of March, 2023. Additional written submissions received March 24, March 30, and April 10, 2023. Dated at the City of Calgary, Alberta this 19th day of April, 2023. J.R. Ashcroft J.C.K.B.A. Appearances: Hardeep S.

Sangha for the Appellant, Jeff Callaway Paula D. Hale

for the Respondent, the Election Commissioner [1] More recently, the Supreme Court further clarified that “..where questions of procedural fairness are dealt with through a statutory appeal mechanism, they are subject to appellate standards of review”: Law Society of Saskatchewan v Abrametz , 2022 SCC 29 at para 27 . The Court in Abrametz concerned a tribunal decision which itself had held that the delay in the administrative proceedings did not amount to an abuse of process.

The Supreme Court stated that whether there has been an abuse of process is a question of law, and thus, the applicable standard of review is correctness. [3] Election Finances and Contributions Disclosure Act , RSA 2000, c E-2 , s 41.42(2) as added by An Act to Strengthen and Protect Democracy in Alberta , SA 2017, c 29 , s 127, effective 01 January 2018. [4] The transitional provisions direct that if the investigation was started by the Chief Electoral Officer, the Electoral Officer would complete the investigation pursuant to the legislation in force in 2017: An Act to Strengthen and Protect Democracy in Alberta , SA 2017, c 29 , s 142.

However, in the circumstances at hand, the complaint was received November 30, 2018 and the investigation began shortly thereafter by the Election Commissioner. Accordingly, the investigation was appropriately carried out by the Election Commissioner pursuant to sections 44.95-44.97 in force in 2018. See also ss 153.09(1) and 153.091 of the Election Act , RSA 2000, c E-1 . [5] In an earlier unreported decision by Neufeld J, the finding of collusion by the Commissioner as against Robyn Lore was quashed: Lore and Agropyron Enterprises Inc. v Office of the Election Commissioner , October 13, 2022