Maitland v Alberta (Election Commissioner), 2023 ABKB 265

Court of King’s Bench of Alberta Citation: Maitland v Alberta (Election Commissioner), 2023 ABKB 265 Date: 20230502 Docket: 1901 09161 Registry: Calgary Between: Christopher Maitland Appellant - and - Office of the Election Commissioner Respondent _______________________________________________________ Reasons for Decision of the Honourable Justice L.K. Harris _______________________________________________________ I. Overview [ 1 ] This case is a companion to the recently decided Callaway v Office of the Election Commissioner , 2023 ABKB 233 . [ 2 ] In

summary, in August 2017, the United Conservative Party of Alberta instigated a requirement for prospective leadership candidates to pay entry fees. Mr. Callaway was one such leadership candidate. In September 2017, being concerned that his campaign was not raising sufficient funds, Mr. Callaway and Cameron Davies, the Deputy Campaign Manager, devised a scheme whereby Robyn

Lore, a friend of Mr. Callaway’s, would provide Mr. Davies with a bank draft for $60,000. Mr. Davies would deposit those funds into his bank account and then withdraw them. Mr. Davies would then furnish funds to certain individuals who would contribute those funds to the Callaway campaign. [1] [ 3 ] Mr. Maitland was one of those individuals who received funds from Mr. Davies. He had contributed those funds, being $3,000, to the Callaway campaign. [ 4 ] The purpose of the scheme devised by Mr. Callaway and Mr.

Davies was to circumvent the rules regarding how individuals can contribute to election campaigns as set out in the Election Finances and Contributions Disclosure Act , RSA 2000, c E-2 ( EFCDA ) [2] . An individual, such as Mr. Maitland, cannot contribute more than $4,000 annually to a registered leadership contestant ( EFCDA s 17(1)).

Individuals are also not permitted to contribute any funds which do not belong to them, or which have been given or furnished to them for the purpose of making a contribution to a registered leadership candidate ( EFCDA s 34(1)). [ 5 ] Following an extensive investigation into the scheme, the Election Commissioner issued administrative penalties against several individuals, including Mr. Maitland, for contravening the EFCDA . In particular, the Election Commissioner found that Mr. Maitland breached the EFCDA s 34(1) for contributing funds to Mr. Callaway’s campaign that did not belong to him.

The Election Commissioner levied a penalty against Mr. Maitland for the breach in the amount of $4,500. [ 6 ] Mr. Maitland filed an appeal of the Election Commissioner’s decision pursuant to the EFCDA s 51.03, advancing several grounds, including that the Commissioner’s decision was incorrect, or alternatively, unreasonable, in issuing the penalty and in the amount of penalty issued. Mr. Maitland also issued a Notice of Constitutional Question arguing that the EFCDA s 34 is unconstitutional.

By the time the matter came before me, the parties had agreed that the only issue to be considered at this time was whether the quantum of the penalty issued to Mr. Maitland was appropriate. The remainder of Mr. Maitland’s application, including the constitutional question, was to be adjourned to a later date. II. Standard of Review [ 7 ] Although Mr. Maitland’s Originating Application/Notice of Appeal suggested that the standard of review I am to employ was either correctness or reasonableness, during the oral hearing itself, Mr.

Maitland conceded that the appropriate standards of review in this case were the appellate standards of palpable and overriding error for questions of fact or mixed fact and law, and correctness for extricable questions of law.

This is also reflected in Callaway at para 5 , citing Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 and Housen v Nikolaisen , at paras 10, 19 and 26-37. [ 8 ] The parties now agree that the question of the appropriate quantum of penalty in this case is a question of mixed fact and law, and accordingly, the standard of review I am to employ is palpable and overriding error. III. Decision of the Election Commissioner [ 9 ] The Election Commissioner issued a Notice of Penalty on June 3, 2019. He concluded that Mr.

Maitland contributed $3,000 to Jeff Callaway when those funds didn’t belong to Mr. Maitland in contravention of the EFCDA s 34(1). [ 10 ] In determining the appropriate penalty, the Election Commissioner set out the factors that must be considered prior to issuing any penalty as required by EFCDA s 51.01(4). To paraphrase, the Commissioner concluded that Mr. Maitland’s contravention was severe, that he was “willing and negligent” in making his irregular contribution, that Mr. Maitland had not reported the infraction, and that Mr.

Maitland had exhibited a lack of truthfulness when interviewed by the Election Commissioner’s investigator about the events in question, which suggested there remained some likelihood that Mr. Maitland could participate in something similar in the future. This lack of truthfulness arose as a result of a series of questions put to Mr. Maitland during his interviews about the source of the funds in question and the reason why they were given to Mr. Maitland by Mr. Davies. Mr. Maitland maintained that they were a personal gift and speculated that it might have been for his wedding or upcoming birth of his child.

The Election Commissioner did not accept this explanation given the disclosure of banking records showing that $60,000 had been provided to Mr. Davies, who then immediately withdrew funds, that Mr. Davies had provided a bank draft to Mr. Maitland who immediately deposited it, then withdrew cash in the same amount, coupled with a series of text messages which suggested that Mr. Callaway had confirmed with Mr. Maitland that he would participate in the scheme. [ 11 ] Finally, the Election Commissioner considered that Mr.

Maitland had was no history of non-compliance. [3] [ 12 ] In considering mitigating or other factors, the Election Commissioner simply noted that “you did eventually make yourself available for interviews and provided much of the documentation requested by our investigator” and “I am aware, and have considered, that you have a young child and are expecting another, and that a substantial fine could bring hardship on your family. [4] [ 13 ] The Election Commissioner went on to say that that he considered all the information obtained during the investigation and concluded that the appropriate administrative penalty was $4,500, to be paid by July 3, 2019.

IV. Positions of the Parties [ 14 ] Mr. Maitland argues that the Election Commissioner failed to provide Mr. Maitland with procedural fairness by giving him an opportunity to make submissions on penalty and mitigating factors for the Election Commissioner to consider. He also argues that when deciding on the amount of penalty, the Election Commissioner failed to consider several mitigating factors as required by the EFCDA s 51.01. Finally, Mr. Maitland says that the quantum of the fine was so disproportionately high when considering similar cases that it

amounts to palpable and overriding error. [15] The Election Commissioner appropriately restricted its submissions to explaining the legislative background and the Record,as well as the appropriate standard of review. V. Analysis a. Lack of Procedural Fairness [16] In Callaway, Ashcroft J addressed the level of procedural fairness owed in appeals from decisions of the Commissioner: Procedural fairness is assessed as to “whether a party received the procedural fairness they were entitled to at law”: Baron Real EstateInvestments Ltd. v. Edmonton (City), 2021 ABCA 64 at para 17.

The level of procedural fairness is determined by certain common lawfactors as enunciated in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817.[5] [17] EFCDA s 44.97(1.1) governs the requirement for notice: At any time before completing an investigation referred to in

section 44.95(b), the Election Commissioner shall notify any person ororganization who is the subject of the investigation that the person or organization is being investigated and inform the person ororganization of the nature of the matter being investigated, unless the Election Commissioner believes that doing so would compromiseor impede the investigation. [18] EFCDA subsection (3) provides that: The Election Commissioner shall not make any adverse finding against a person or organization unless that person or organization hashad reasonable notice of the substance of the allegations and a reasonable opportunity to present his or her or its views. [19] In addressing the appropriate degree of procedural fairness, Ashcroft J was guided by the factors described in Baker.

Sheconcluded that a low to medium level of procedural fairness was required in these cases: Callaway at para 61. [20] The issue in Callaway was whether the Commissioner allowed Mr. Callaway a meaningful opportunity to respond to thesubstance of the allegations. After noting that the Election Commissioner had issued multiple orders and notices providing informationabout the allegations, updates on the investigation, details about the investigative findings, had provided extensive disclosure ofmaterials pertinent to the investigation and also had sought information and an interview with Mr. Callaway (which Mr.

Callawayultimately gave), the Court concluded that Mr. Callaway had been given a meaningful opportunity to respond, and that there was nobreach of procedural fairness: Given the 53 days’ notice between service of the Notice and the interview, the four hour wide ranging comprehensive interview, thespecific communication from the investigator that they needed to hear from Mr. Callaway in the next few days if there were anyadditional 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[6]. [21] Mr. Maitland was interviewed on February 5, 2019. The Interview

Summary[7] shows that the investigator explained to Mr.Maitland that the scope of the investigation was the funding of the Callaway campaign during the 2017 leadership race. Mr. Maitlandprovided details about attending his bank and withdrawing $3,000 cash to give to Mr. Callaway and Mr. Davies. He agreed to providecopies of his bank statements. [22] The investigator interviewed Mr. Maitland a second time on April 23, 2019[8] and asked questions about Mr. Maitland’sbanking records which by that time had been provided. Mr. Maitland was also provided information about the next steps in theinvestigation.

It is also noted: [the investigator] encouraged MAITLAND to start on his reply to the NOIF [Notice of Investigation Findings] any time and that he couldreply before the 30-day deadline if he wished. [23] Mr. Maitland was encouraged to check for “any other relevant materials like emails, a gift card, etc.”. [24] The Election Commissioner sent Mr.

Maitland a Notice of Investigative Findings on April 26, 2019, in which the ElectionCommissioner provided extensive details about the investigation and his conclusions and explaining that before making any adversefinding the Election Commissioner must provide reasonable notice of the substance of the allegation and a reasonable opportunity topresent his or her views. The Election Commissioner invited Mr. Maitland to provide a response to the Notice and include “anyinformation you consider to be relevant in my determination of the appropriate penalty.”[9] [25] Mr.

Maitland did not respond to the April 26, 2019 Notice and so the investigator contacted him to inquire further. Mr.Maitland indicated that he had no additional information to contribute. He maintained that he has done nothing wrong. [26] The Election Commissioner then issued his Notice of Administrative Penalty. [27] I cannot find fault with the Notice or information provided to Mr. Maitland by the Election Commissioner. The substance ofthe allegations was explained to Mr.

Maitland in the first and second interviews, and the Notice of Investigative findings provides ampleinformation on the details of the investigation. The process was explained to Mr. Maitland, and he was asked to provide furtherdocumentary evidence and any further relevant information. In fact, he did respond to one request by providing his banking records. Iconclude that he was aware of the scope of the investigation and the potential outcome. He understood he could provide further

information for the Election Commissioner to consider when assessing penalty, but he declined to do so. [ 28 ] Like in Callaway, I conclude that Mr. Maitland was extended the appropriate procedural fairness in this instance. He had time to consider whether he had any mitigating information to provide in addition to what was discussed during the interviews, or any submissions on the appropriate penalty, but declined to do so. Accordingly, the Election Commissioner was in a position where the only mitigating information he had to consider was the information obtained during Mr.

Maitland’s interviews and the overall investigation. b. Mitigating Factors [ 29 ] The mitigating factors that must be considered are set out in the EFCDA s 51.01(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 willfulness 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. [ 30 ] In his Notice of Penalty, the Election Commissioner cites each of these seven factors and the information gathered during the investigation relating to each. [10] With respect to mitigating factors, the Election Commissioner noted that Mr. Maitland did eventually make himself available for interviews, provided documentation, and had a young child while expecting a second and that a substantial fine could bring a hardship to his family. The Election Commissioner also noted that Mr.

Maitland had no history of non-compliance although it was noted that the Election Commissioner felt that Mr. Maitland had been less than truthful about the events surrounding his campaign contribution. [ 31 ] This is unlike Callaway , in which Ashcroft J found that the Election Commissioner’s failure to explain and provide reasons why there were no mitigating factors in that case amounted to palpable and overriding error. [ 32 ] I recognize that Mr. Maitland might take a different view of the circumstances giving rise to the penalty and feels that certain factors were not considered.

In particular, he argues that his contribution was very low, that he was cooperative in the investigative process and was transparent and truthful, is young and wishes to remain involved in the political process, among other factors. [ 33 ] I stop to note at this point that Mr. Maitland was invited to make submissions regarding penalty but chose not to. To the extent that the Election Commissioner did not have information on these other mitigating factors, the blame for that can only fall to Mr. Maitland. The Election Commissioner can only consider the information that was before him. While Mr.

Maitland argues that he attended the interviews without counsel and should be given some latitude as to how he responded to the investigation, I do not accept that this prevented him from understanding the scope of the investigation, somehow caused him to provide inappropriate or incomplete information or denied him the opportunity to provide his own information. [ 34 ] The Election Commissioner did consider the mitigating factors that were before him at the time he issued his Notice of Penalty. This is clear from the decision itself. The Election Commissioner considered Mr.

Maitland’s family status and the fact that he had no history of non-compliance. [ 35 ] While there may have been some factors which were not expressly mentioned by the Election Commissioner which were available on the record, including the level of Mr. Maitland’s contribution and his relative age, the failure of the Election Commissioner to explicitly list these factors is not fatal. That information is available on the Record and I am entitled to review the underlying decision in light of the Record and the history and context of the proceedings.

The omission is not a palpable and overriding error, being “one so obvious that it can be easily seen or known on its face: Housen at para 10. [ 36 ] With respect to the Election Commissioner’s findings regarding the seriousness of the breach and Mr. Maitland’s truthfulness, I see no error. There was evidence on the Record to support the findings made in this regard. [ 37 ] I therefore conclude the Election Commissioner committed no palpable and overriding error in the manner in which he considered the EFCDA s 51.01(4) or the mitigating factors presented to him during the investigation. c.

Was the Penalty Excessive? [ 38 ] Mr. Maitland relies upon other decisions in arguing that this Court ought to vary the administrative penalty under EFCDA s 51.03(5). He argues that Rumpel v Election Commissioner of Alberta , 2019 ABQB 938 is authority for the proposition that first time offenders ought to be assessed a penalty of between 10% of the amount in issue. In Cherry v Alberta (Chief Electoral Officer) , 2021 ABQB 672 , the penalty was varied downwards from $5,500 to $1,750. [ 39 ] Certainly, the Election Commissioner has considerable discretion in assessing sanction, but sanction must be proportionate

and reasonable with “sufficient regard to the individual circumstances” of the appellant: Walton v Alberta (Securities Commission) , 2014 ABCA 273 at para 166 . [ 40 ] I do not find Rumpel or Cherry particularly helpful in this case because those decisions, as with Mr. Maitland’s case, depend very heavily upon the factual circumstances surrounding the individual appellants. Rumpel involved an over-contribution of the appellant’s own money.

Cherry involved an appellant who voted in an Alberta election when she was not a Canadian Citizen. [ 41 ] I keep in mind that I must extend considerable deference to the decision below. The parties agree that the penalty of $4,500 falls within the Election Commissioner’s authority under the EFCDA . While it certainly is somewhat higher than the amounts found to be acceptable by the Court in Cherry and Rumpel , I do not find it to be so excessive such that it amounts to palpable and overriding error. If the penalty levied had been the maximum amount allowed under the EFCDA ($10,000) then Mr.

Maitland would have a stronger argument because such a penalty would suggest that the Election Commissioner did not in fact consider any mitigating circumstances. It is far from the maximum, however, and the difference between Cherry and Rumpel and this case is that here, the Election Commissioner had concluded that Mr. Maitland had been “less than truthful”. [ 42 ] Given the evidence on the Record, I cannot find that the penalty assessed in this particular case amounts to palpable and overriding error. VI.

Conclusions [ 43 ] The appeal as to the quantum of penalty is dismissed without prejudice to the Appellant’s right to reschedule his appeal in regards to any remaining issues. No costs are awarded to either party. Heard on the 6 th day of April, 2023. Dated at the City of Calgary, Alberta this 2 nd day of May, 2023. L.K. Harris J.C.K.B.A. Appearances: Gerald Chipeur K.C. Miller Thomson LLP for the Appellant Paula Hale Shores Jardine LLP for the Respondent