) ) BRIAN GRAFF Applicant – v. –, 2017 ONSC 3578

CITATION : Graff v. New Democratic Party, 2017 ONSC 3578 DIVISIONAL COURT FILE NO.: 221/17 DATE: 20170609 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) BRIAN GRAFF Applicant – and – NEW DEMOCRATIC PARTY Respondent )) )) )) )) ) N. Hasan & J. Safayeni, for the applicant R. Centa & M. Fenrick, for the respondent ) ) HEARD at Toronto: June 6, 2017 NORDHEIMER J. : [ 1 ] This is an application for judicial review brought, with leave, before a single judge of the Superior Court of Justice on the basis of urgency under s. 6(2) of the Judicial Review Procedure Act , R.S.O. 1990, c. J.1.

On that point, I should say that while efforts were made by the court to have a panel of the Divisional Court hear this matter, given the time constraints that proved to be impossible to arrange. Because of the immediacy of the issues raised and the relief sought, I am satisfied that this is a matter where leave is properly given for the matter to be heard by a single judge. Background [ 2 ] The applicant wishes to be a candidate in the race for the leadership of the respondent, New Democratic Party.

The respondent is a federal political party that currently holds the third highest number of seats in the House of Commons. [ 3 ] The respondent submitted his application to participate in the leadership race in October 2016. The applicant is a relatively new member of the respondent. He acknowledges that he has some ideas that challenge some orthodoxy of the respondent.

However, the applicant says that he meets all candidacy requirements under the respondent’s Leadership Rules: he is a member of the respondent in good standing; he is eligible to run for a seat in the House of Commons; and he has demonstrated a genuine interest in seeking the leadership and serving as leader of the respondent. [ 4 ] The applicant’s application to be a candidate for the leadership was reviewed by the respondent’s National Director. The National Director identified some concerns with the application that he outlined to the applicant. The applicant provided responses to those concerns.

This process went back and forth over some weeks. Eventually, on December 20, 2016, the National Director wrote to the applicant and advised: “After careful review, I am writing to confirm you have not been accepted as a candidate”. The National Director offered no further reasons or explanation. The applicant appealed that decision. The Appeal Officers were provided with the applicant’s submissions and materials from the National Director.

On December 28, 2016, the appeal was denied, also without reasons or explanation. [ 5 ] On March 14, 2017, the applicant brought an application for judicial review of those decisions. Directly thereafter, the respondent agreed to hold a fresh hearing on the applicant’s application to run for the leadership. The application for judicial review was ultimately settled and withdrawn. [ 6 ] As part of the fresh hearing, the National Director wrote to the applicant outlining his concerns with respect to the applicant’s application. The applicant provided a response to those concerns.

On April 19, 2017, the National Director again rejected the applicant as a candidate for the leadership. In this instance, however, the National Director gave reasons for his decision. The

National Director outlined a number of reasons for not accepting the applicant as a candidate. Those reasons were: (

a) The applicant’s finding of guilt, some twenty-five years earlier, for the criminal offence of watching and besetting (for whichhe received a conditional discharge) and what was perceived to be his lack of remorse regarding that event. (

b) An Ontario Municipal Board decision describing the applicant as “unreasonable, frivolous or vexatious”. (

c) The applicant’s “propensity for litigation”. (

d) An “attack ad” used by the applicant in the 2014 municipal election. (

e) The applicant’s failure to disclose two Facebook accounts. (

f) An asserted breach of the confidentiality requirement associated with the application process. (

g) The applicant’s views on immigration as being incompatible with NDP principles. (

h) The applicant’s advocating that “the [Ontario] NDP cease to exist”. [7] The applicant appealed the decision of the National Director. In doing so, the applicant challenged all of the above reasons. The applicant also reiterated his argument that the National Director’s jurisdiction to refuse to approve a candidate was narrow andlimited. In addition, the applicant raised concerns respecting the objectivity or impartiality of the National Director. In making thisargument, the applicant pointed to the central focus in the decision of the National Director relating to his criminal charges.

Theapplicant noted that this issue did not appear to form any part of the earlier decision of the National Director to reject his application. [8] On April 24, 2017, the Appeal Officers rejected the applicant’s appeal. Their decision said simply: … the Officers have determined that we see no reason to overturn the decision. We are satisfied with the reasons provided by [the National Director]. Issues [9] There are essentially two issues to be determined in this application.

The first is whether the decisions rejecting theapplicant’s candidacy for the leadership of the respondent are properly the subject of judicial review under the Judicial ReviewProcedure Act. The second is, if the decisions are reviewable, should those decisions be overturned. A. Jurisdiction [10] The starting point for the jurisdiction analysis is the decision in Setia v. Appleby College (2013), 2013 ONCA 753 ,118 O.R. (3d) 481 (C.A.). In Setia, the Court of Appeal adopted the factors set out in Air Canada v.

Toronto Port Authority, 2011 FCA347 , [2013] 3 F.C.R. 605 (C.A.) in terms of what decisions are of a sufficiently public nature as to clothe the court withjurisdiction to review those decisions. Those factors are set out by Goudge J.A. at para. 34: (

i) the character of the matter for which review is sought; (ii) the nature of the decision-maker and its responsibilities; (iii) the extent to which a decision is founded in and shaped by law as opposed to private discretion; (iv) the body’s relationship to other statutory schemes or other parts of government; (

v) the extent to which a decision-maker is an agent of government or is directed, controlled or significantly influenced by apublic entity; (vi) the suitability of public law remedies; (vii) the existence of a compulsory power; (viii) an “exceptional” category of cases where the conduct has attained a serious public dimension. [11] It is also clear that these factors are not a checklist where one answers Yes or No to each factor and then totals up the result.

Rather, as Stratas J.A. said in Air Canada, at para. 60: Whether or not any one factor or a combination of particular factors tips the balance and makes a matter “public” depends on the facts ofthe case and the overall impression registered upon the Court. [12] In terms of those factors, the respondent is a “registered party” within the meaning of the Canada Elections Act, S.C. 2000, c.9. The respondent is also an unincorporated, voluntary association. I accept that the basic arrangements between members of therespondent are contractual ones.

I do not accept, however, that those arrangements are akin to a private, commercial matter. As is thecase with respect to the activities of other political parties, there is a broader public import to what the respondent does. The

respondent’s activities are inextricably linked to the public domain. The respondent is a political party dedicated to achieving “a positive role for democratically elected and accountable Parliaments, legislatures, and the governments responsible to them”. [1] In this particular situation, the respondent has embarked on a process to select their leader. That leader will be the person who will be put forward, by the respondent, to the citizens of this country as their candidate for the office of Prime Minister.

Consequently, the decision of the respondent in selecting their leader carries with it some considerable importance for the voting public. [ 13 ] I accept that the respondent is not exercising a public decision-making power. That is, the power being exercised by the respondent in the leadership process does not emanate from a statute or regulation or other public source. Nevertheless, I believe that it can be fairly said that the activities of the respondent are “woven into the network of government” as that expression was used by Stratas J.A. in Air Canada with relation to the fourth factor.

The election of governments in this country, both federal and provincial, are based on a party system. Thus, decisions made by political parties have a direct impact on the choices available to the voting public. In that respect, the decisions made by political parties, in terms of their leaders, their candidates, and their policies, significantly shape the options available to the voting public and the framework for the discussion of topics important to the role taken by our governments. [ 14 ] I accept that the respondent is not an agent of government nor is it controlled by government.

That said, the fact that political parties receive considerable amounts of public funds ties them more closely to government than would be the case for other voluntary associations. [2] There is also an element of compulsory power to the decisions of political parties since, as history well demonstrates, if a person wants to become part of the government of this country, that person has little choice but to pursue that goal through one of the federal political parties. [ 15 ] Then there is the last factor, the “exceptional” category of cases.

Neither Setia nor Air Canada provide a definition of that category of cases. However, with respect to that factor, Stratas J.A. did say, in Air Canada at para. 60 : Where a matter has a very serious, exceptional effect on the rights or interests of a broad segment of the public, it may be reviewable [citation omitted]. [ 16 ] In my view, the decisions that political parties, especially the major political parties, make in terms of the candidates they put forward, the policies they adopt, and the leaders that they choose, do have a very serious effect on the rights and interests of the entire voting public.

The respondent’s submission, that it is simply a private voluntary association of individuals who, in terms of selecting its leader, is engaged in an entirely internal process, may be a convenient characterization for present purposes, but it ignores the practical public impact of what is really going on. As I have already alluded to, the political parties in this country frame the debate and dictate the policies from which the voting public is expected to choose. From a very practical point of view, there is no “none of the above” option for the voting public.

Consequently, the decisions of political parties do have a very serious and exceptional effect on the interests of every Canadian citizen. The voting public, therefore, has a very direct and significant interest in ensuring that the activities of political parties are carried out in a proper, open, and transparent manner. [ 17 ] I accept that courts should be very cautious in deciding that decisions by voluntary associations, not directly connected to government, are subject to judicial review.

The courts should not assume to themselves the obligation of refereeing every dispute, in which persons can engage through their membership in such associations, under the extraordinary remedies associated with judicial review.

Most such disputes should be left to the private law process. [ 18 ] However, where the decisions of such associations have a very broad public impact, then the courts have held that those decisions fall within the purview of public law and are reviewable. [3] For the reasons I have set out, this is the type of decision that has such a large public aspect to it as to engage the court’s jurisdiction under the judicial review authority. I conclude, therefore, that the decisions here are amenable to review. B.

The review [ 19 ] I now turn to the decisions themselves, that is, the National Director’s decision not to approve the applicant as a candidate and the Appeal Officers’ dismissal of the appeal from that decision. [ 20 ] The first challenge to the decisions is the applicant’s contention that the National Director has a very circumscribed role to play in the process by which members of the respondent can become candidates for the leadership. In order to understand that contention, and the response to it, it is necessary to set out some of the Leadership Rules that the respondent adopted: 4. CANDIDATES

a) Any member of the Party in good standing, eligible to run for a seat in the House of Commons, who demonstrates a genuine interest in seeking the leadership and serving as the Leader of the NDP can be a candidate.

b) Even before being officially registered with the party, a candidate must declare intent with the CEO, seek a declaration from the chief agent of the Party certifying that the party accepts the application, register with Elections Canada and immediately follow all the rules established by the party.

i) The declaration from the chief agent of the Party does not constitute official registration with the Party and is separate from the approval process set out in these rules.

c) In order to appear on the ballot and be officially registered with the Party, a candidate must file the nomination paperwork, submit the registration fee with the CEO and be approved to stand as a candidate for leadership by the National Director. …

NOMINATION PROCESS …

g) The decision to accept or reject a candidacy lies with the National Director.

h) In the event that a candidate’s application is rejected, one appeal will be considered by the Party President, Vice-presidents andTreasurer.

i) A candidate may appeal a rejection within 2 business days of receiving their notice. The appeal shall be submitted in writing and detailthe candidate’s arguments as to why they should be considered as a nominee. The officers will respond to the candidate within 3business days.

j) Once the National Director has approved the candidate, and the CEO has confirmed that they have received all of the requireddocumentation, the Candidate will be officially registered and will be eligible for the services provided by the Federal Party. [21] The applicant contends that the role of the National Director is limited to determining whether any given member hascomplied with the requirements of rule 4(a). The applicant says that there is no general discretion in the National Director to decide onwhether a member is, or is not, an appropriate candidate.

In support of this latter assertion, the applicant points to other rules in theLeadership Rules that use terms such as “discretion” and “opinion” as demonstrating instances where the respondent intended to give awide latitude to a particular decision-maker. [22] I do not accept the applicant’s contention. In my view, read fairly and as a whole, the Leadership Rules clearly intended tovest in the National Director a “screening” role with respect to whether a member is or is not an appropriate candidate for the leadership. Rule 4(

c) expressly provides that members must be approved by the National Director to stand as candidates. This is reiterated in rule 5(

g) which refers to the decision to accept or reject a candidate as lying with the National Director. Further, rule 4(b)(

i) refers to the“approval process” and rule 5(

h) provides for the right of appeal by a candidate who is rejected. Finally, rule 5(

j) provides “Once theNational Director has approved the candidate …”. [23] The applicant advances two responses to that

interpretation. One is that if the respondent had intended to give such broadauthority to the National Director, it ought to have plainly said so in the Leadership Rules. The applicant points, by way of example, tothe 2012 Procedures for the Leadership Vote of the Liberal Party of Canada where it was expressly provided that the LeadershipContestant Review Committee “may approve or refuse to approve a person as a leadership contestant”. [24] Obviously, it would have been preferable for the Leadership Rules to have been clearer on this question since there wouldthen be no issue to debate.

However, as I have already found, the content of the Leadership Rules are sufficient to find that the NationalDirector was given the authority to exercise an overall supervisory role with respect to who could be a leadership candidate. Certainly,the Appeal Officers were of that view. [25] The other response by the applicant is that such an

interpretation would give the National Director an unfettered right todecide on the candidates for the leadership and that result is inappropriate because the decision on who should be the Leader should beleft to the members voting. I do not see any compelling reason why the respondent cannot choose to vest a “pre-clearance” authority inthe National Director. There may be any number of situations that might present themselves in the course of a leadership contest thatcannot be anticipated by written terms in the rules for the contest.

There could be persons who might seek to contest the leadershipsolely for disruptive purposes. There could also be persons whose mere presence as a leadership candidate might be detrimental to theimage and reputation of the respondent. The respondent would have good reason to reserve a broad discretion to the National Director toaddress any such situations, should they arise. Further, given my conclusion that the decisions involved in this context are subject tojudicial review, the discretion given to the National Director is not completely unfettered.

It is still subject to a reasonableness standardand to the principles of natural justice. [26] Further, as part of the process to become a candidate, the National Director developed a disclosure package that allprospective candidates were required to complete. It requires details on a variety of topics relating to the background of the prospectivecandidate. If the role of the National Director is as narrow as that contended for by the applicant, it is not clear to me what purpose thedisclosure package would fulfill.

I would also note, on this point, that the applicant never challenged that requirement as being outsideof the role of the National Director. [27] I conclude therefore that the Leadership Rules contemplate that the National Director will have a broad discretion to approveor reject any prospective candidate for the leadership. [28] The issue then is whether the decision of the National Director in this case is a reasonable one.

Subject to the allegation ofbias, the parties appear to be in agreement that the standard of review applicable to the decision is one of reasonableness. [29] Before turning to the reasonableness question, however, I will next address the applicant’s contention that the decision of theNational Director is tainted by a reasonable apprehension of bias on his

part in terms of his involvement in this matter. In support of thatassertion, the applicant points to the fact that it was the National Director who rejected the applicant’s candidacy the first time. Theapplicant also points to what he says are the “shifting rationales” relied upon by the National Director for rejecting the applicant. [30] The applicant and the respondent disagree on the proper test to be applied, in this situation, for the determination of whether areasonable apprehension of bias exists.

The applicant relies on the more common test “what would a informed person, viewing thematter realistically and practically – and having thought the matter through – conclude”: Committee for Justice and Liberty v. Canada(National Energy Board), (SCC), [1978] 1 S.C.R. 369. The respondent relies on the “closed mind” test: NewfoundlandTelephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992] 1 S.C.R. 623.

[31] I do not see a need, given the circumstances of this case, to engage in an in-depth analysis of which test to apply. I will saythat, of the two tests, I favour application of the “closed mind” test in this situation. It seems to me that the National Director, and theAppeal Officers for that matter, ought not to be held to the standard of objectivity that would apply to a judge or to an independentstatutory tribunal. The role and function of the National Director ought not to attract a standard that requires complete impartiality orcomplete disassociation from the issue to be decided.

That is not practical given the nature of the organization involved. On that latterpoint, the observation of Gonthier J. in Lakeside Colony of Hutterian Brethren v. Hofer, (SCC), [1992] 3 S.C.R. 165, atpara. 84(QL), is apt: There is no doubt that an unbiased tribunal is one of the central requirements of natural justice.

However, given the close relationshipamongst members of voluntary associations, it seems rather likely that members of the relevant tribunal will have had some previouscontact with the issue in question, and given the structure of a voluntary association, it is almost inevitable that the decision makers willhave at least an indirect interest in the question. Furthermore, the procedures set out in the rules of the association may often require thatcertain persons make certain kinds of decisions without allowing for an alternate procedure in the case of bias.

On that latter point, I was not directed to any provision in the Leadership Rules, or otherwise, that would allow for someone other thanthe National Director to make the decision, as to the appropriateness of any candidate, where an allegation of bias is made. [32] Regardless of the test, the applicant has not satisfied the relatively high threshold required for a finding that there was areasonable apprehension of bias on the part of the National Director. The National Director made the decision to reject the applicant thefirst time. He provided some reasons for his conclusion, in private, to the Appeal Officers.

After the applicant challenged that decision,the respondent agreed to consider the matter afresh. The National Director outlined his concerns to the applicant. The applicantresponded to those concerns. The National Director then concluded that his concerns were not assuaged and rejected the applicant’scandidacy for a second time. [33] Contrary to the applicant’s assertion, the original reasons for the rejection are among the reasons set out in the secondrejection. The second rejection, however, relies on some additional concerns. I reject the contention that the difference between thereasons demonstrates bias.

In the first private process, the National Director was not required to set out every reason for his conclusion. Indeed, there is evidence that the National Director expressly did not get into certain issues (e.g. the prior criminal charges) because ofthe nature of those events and certain personal reasons that the applicant had given relating to those events. However, the secondprocess was a much more public one. The National Director knew that he was giving reasons to the applicant that would likely becomea matter of public record and that could (and as it happens did) become part of a court record.

In that situation, I can understand why theNational Director would include all of the reasons for his conclusion. The fact that he changed the emphasis that he placed among thedifferent reasons is of little consequence and certainly does not establish bias.

As the National Director made clear in his reasons, it wasthe combination of the concerns that led to the conclusion to reject the applicant’s candidacy as opposed to any one single concern. [34] Finally, on the issue of bias, it seems to me that the presence of an internal appeal process does, to a certain degree, help toalleviate some of the concern that arises in a situation where a reasonable apprehension of bias is said to arise. I appreciate the point thatthe applicant makes, drawn from Newfoundland Telephone Co. v.

Newfoundland (Board of Commissioners of Public Utilities) (at para.40QL), that the “damage created by apprehension of bias cannot be remedied”. In that decision, however, there was a finding that theapprehension of bias had led to an unfair hearing. There was no internal appeal process in that case. Rather, resort had to be had to thecourts.

That decision does not address the point that I make which is that, in a situation such as the one here, where a concern is raisedthat the same person is making the second decision, as made the first decision, and that some bias might be perceived from that fact, thepresence of an internal review or appeals process tends to alleviate the concern such that it would not render the ultimate decision aninvalid one. [35] Lastly, there is the applicant’s contention that the decisions are unreasonable.

This contention is based on the submission thatthe concerns relied upon by the National Director are not borne out by the record that was before him. [36] I do not intend to review each of the concerns identified by the National Director and match the information from the recordto which each relates. I do not consider that necessary where the standard of review is reasonableness as opposed to one of palpable andoverriding error.

What the applicant’s position distills down to, in my view, is that he does not agree that the matters in issue ought tohave raised the concerns (or the level of concern) that the National Director drew from them. With respect, the fact that there are otherviews that might have been taken with respect to the matters in question, does not render the concerns expressed by the National Directorunreasonable. As I have found, the National Director had the express role of approving all candidates in the first instance.

His role wasto act in the best interests of the respondent including to protect the respondent from what might turn out to be embarrassing candidates. The National Director reached the conclusion, for the reasons that he outlined, that the candidacy of the applicant was not in the bestinterests of the respondent. He said, in part: You assert that I have put the worst possible

interpretation on errors or omissions as they have arisen – and discount the legitimacy ofthose concerns. But our Party and others have ample experience of candidates – whether willfully or unwittingly – who have doneserious damage to our electoral fortunes when actions from their past have emerged to derail a campaign. [37] In my view, the decision reached by the National Director is a reasonable one. It is especially so when his decision isaccorded the high degree of deference to which, in my view, it is entitled.

While I have concluded that decisions like this, that are madeby political parties, are subject to review by the courts, that review does not mean that the courts should readily second guess thosedecisions or micro manage them. Within the broad compass of fairness, political parties ought to be entitled to make their owndecisions.

Within those fairness constraints, whether the resulting decision is an appropriate one is for the respondent’s members todetermine, not the courts. [38] Consequently, I conclude that the application for judicial review must be dismissed. [39] If the parties cannot agree on the appropriate disposition of the costs of this application, they may file written submissions. The respondent shall file its submissions within fifteen days of the date of the release of these reasons and the applicant shall file his

submissions within ten days thereafter. The submissions of each party shall not exceed ten pages in length. No reply submissions shall be filed without leave of the court. NORDHEIMER J. Date of Release: June 9, 2017 CITATION : Graff v. New Democratic Party, 2017 ONSC 3578 DIVISIONAL COURT FILE NO.: 221/17 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: BRIAN GRAFF Applicant – and – NEW DEMOCRATIC PARTY Respondent REASONS FOR JUDGMENT NORDHEIMER J. Date of Release: