Campbell et al. v. Canada (Chief Electoral Officer), (2010) 361 F.T.R. 114 (FC)

JudgeMartineau, J.
CourtFederal Court (Canada)
Case DateNovember 23, 2009
JurisdictionCanada (Federal)
Citations(2010), 361 F.T.R. 114 (FC);2010 FC 43

Campbell v. Can. (2010), 361 F.T.R. 114 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. JA.021

L.G. Callaghan, in his capacity as official agent for Robert Campbell, and David Pallet, in his capacity as official agent for Dan Mailer (applicants) v. The Chief Electoral Officer of Canada (respondent)

(T-838-07; 2010 FC 43)

Indexed As: Campbell et al. v. Canada (Chief Electoral Officer)

Federal Court

Martineau, J.

January 18, 2010.

Summary:

Following the 2006 federal election, the Chief Electoral Officer refused to certify certain advertising expenses claimed by election candidates as election expenses to be reimbursed by the Receiver General under the Canada Elections Act. The expenses were the candidate's share of their federal party's voluntary "regional media buy" advertising program. The refusal was based on insufficient evidence that the expenses attributed to and paid by each candidate were actually "incurred" by the candidates. It was suspected that the "regional media buy" program was a sham allowing the federal party to illegally transfer to participating candidates the liability incurred by the party for national advertising to circumvent spending limits. Two candidates applied for certiorari and mandamus. They sought to have the Officer's decision set aside and an order compelling the Officer to deliver new certificates to permit partial reimbursement of the claimed advertising expenses.

The Federal Court allowed the application and remitted the matter to the Officer with directions respecting the payment of the claimed expenses.

Administrative Law - Topic 3551

Judicial review - Mandamus - Conditions precedent - General - The Federal Court stated that "mandamus is a remedy used to compel the performance of a public legal duty. In order for the court to grant an order of mandamus, there must exist a legal public duty to act; the duty must be owed to the applicant; the court must be satisfied that the applicant has a clear right to the performance of that duty; there must be no other adequate remedy available; the order must be of some practical value or effect; there must be no equitable bar to the relief sought; and, the balance of convenience must warrant the issuance of the order. ... When a decision must be made, mandamus will apply even if there is discretion as to how the decision can be decided." - See paragraphs 63 to 64.

Administrative Law - Topic 9102

Board and tribunals - Judicial review - Standard of review - The Federal Court stated that "unless there is an extricable question of law, questions of mixed fact and law are generally reviewed on the same standard as questions of fact, namely reasonableness. However, where there is an extricable question of law, depending upon whether the question is one of central importance to the legal system or outside the scope of the decision-maker's powers, the question may be reviewed on either a standard of correctness or a standard of reasonableness." - The court held that the Chief Electoral Officer's interpretation of the reimbursement provisions of s. 407(1) of the Canada Elections Act was an extricable question of law subject to review on the correctness standard - The application of the Officer's interpretation to the facts was reviewable on the reasonableness standard - See paragraphs 71 to 72.

Elections - Topic 7458

Election financing - Election expenses - Reimbursement of - By the state (incl. funding of political parties) - Following the 2006 federal election, the Chief Electoral Officer refused to certify certain advertising expenses claimed by two election candidates as election expenses reimbursable by the Receiver General under the Canada Elections Act - The expenses were the candidates' share of their federal party's voluntary "regional media buy" advertising program - The refusal was based on insufficient evidence that the expenses were actually "incurred" by the candidates - It was suspected that the "regional media buy" program was a sham allowing the federal party to illegally transfer to participating candidates the liability incurred by the party for national advertising to circumvent spending limits (matter currently under investigation by Commissioner) - The Federal Court allowed the candidates' application for certiorari and mandamus, remitting the matter to the Officer with directions respecting reimbursement - The same expenses for 17 other candidates had been reimbursed according to the existing practices of Elections Canada - The claimed expenses were actually "incurred" by the candidates and reimbursable - That said, the court held that "the amounts reported by each [candidate] must be corrected to have the difference between the commercial value of the claimed advertising expenses and the amount actually invoiced by the Fund reported as a non-monetary contribution" - The evidence did not support a finding that the program was a sham to transfer federal party advertising liability to candidates participating in the program - The court stated that "whether the court examines the legality of the impugned decisions from the point of view of the correctness or the reasonableness standard, the result is the same. Either, the respondent erred in determining that the claimed advertising expenses were not incurred by the applicants or the findings made by the respondent are not otherwise supported by the evidence and are unreasonable in the circumstances." - See paragraphs 117 to 226.

Elections - Topic 7458

Election financing - Election expenses - Reimbursement of - By the state (incl. funding of political parties) - The Federal Court discussed the scope of the Chief Electoral Officer's duties under s. 465 of the Canada Elections Act respecting the certification of claimed election expenses - The Officer had a right and duty to audit the candidate's submitted returns - He was not a rubber stamp - However, there was no unfettered discretion to decline to certify claimed expenses - The court stated that "the powers and duties of the CEO under sections 435 and 465 of the Act are presently limited to the power to audit and verify the accuracy or reasonableness (in light of the legislative reference to 'commercial value') of expenses reported by candidates and registered parties for the purpose of reimbursement by the Receiver General. ... the CEO has no power under the Act to conduct a general investigation into the manner that a registered party spends its funds or helps finance its candidates' campaigns during an election. Indeed, in cases where the CEO suspects that a person is not complying with the Act, his duty is to refer the matter for investigation by the Commissioner" - See paragraphs 80 to 104.

Elections - Topic 7458

Election financing - Election expenses - Reimbursement of - By the state (incl. funding of political parties) - The Federal Court stated that to constitute an election expense under s. 407(1) of the Canada Elections Act "the following three criteria must be met: (i) the expense must be incurred by the entity reporting the expense; (ii) the goods or services for which the expense is incurred must be used during the election period; and (iii) the goods or services for which the expense is incurred must be used 'to directly promote or oppose a registered party, its leader or a candidate'" - See paragraph 120.

Elections - Topic 7458

Election financing - Election expenses - Reimbursement of - By the state (incl. funding of political parties) - Section 407(1) of the Canada Elections Act provided that "an election expense includes any costs incurred ... by a registered party or a candidate, to the extent that the property or service for which the cost was incurred ... is used to directly promote or oppose a registered party, its leader or a candidate during an election period" - The Federal Court rejected the submission that a candidate's election expenses were limited to those directly promoting the candidate - The court stated that "an election expense for a candidate can be one that exclusively promotes both a candidate and a registered party or its leader" - See paragraph 131.

Cases Noticed:

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, refd to. [para. 8].

Harper v. Canada (Attorney General) (2004), 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 9].

Conservative Fund Canada v. Canada (Chief Electoral Officer), [2009] O.T.C. Uned. V58 (Sup. Ct.), refd to. [para. 22].

Rae v. Canada (Chief Electoral Officer), 2008 FC 246, refd to. [para. 60].

Stevens v. Conservative Party of Canada (2004), 264 F.T.R. 64; 2004 FC 1628, affd. (2005), 343 N.R. 275; 2005 FCA 383, refd to. [para. 60].

Apotex Inc. v. Merck & Co. and Merck Frosst Canada Inc., [1994] 1 F.C. 742; 162 N.R. 177 (F.C.A.), affd. [1994] 3 S.C.R. 1100; 176 N.R. 1, refd to. [para. 63].

Democracy Watch v. Campbell et al. (2009), 387 N.R. 261; 2009 FCA 79, refd to. [para. 71].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 73].

Eli Lilly & Co. et al. v. Apotex Inc. (2009), 351 F.T.R. 1; 2009 FC 991, refd to. [para. 78].

Longley et al. v. Canada (Attorney General) (2007), 231 O.A.C. 244; 2007 ONCA 852, refd to. [para. 100].

Bell ExpressVu Limited Partnership v. Rex et al. (2002), 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 111].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 111].

Somerville v. Canada (Attorney General) (1996), 184 A.R. 241; 122 W.A.C. 241; 136 D.L.R.(4th) 205 (C.A.), refd to. [para. 134].

Grenier v. Canada (2005), 344 N.R. 102; 2005 FCA 348, refd to. [para. 267].

Manuge v. Canada (2009), 384 N.R. 313; 2009 FCA 29, refd to. [para. 267].

Statutes Noticed:

Canada Elections Act, S.C. 2000, c. 9, sect. 407(1) [para. 119].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (2009 Looseleaf Update), vol. 1, paras. 1:3230 [para. 64]; 1:3300 [para. 65].

Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy (1991), vol. 1, pp. 324, 339 [para. 7].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 111].

Counsel:

Michel Decary and Stephen Hamilton, for the applicants;

Barbara McIsaac and Nadia Effendi, for the respondent.

Solicitors of Record:

Stikeman Elliott, LLP, Ottawa, Ontario, for the applicants;

Borden Ladner Gervais, LLP, Ottawa, Ontario, for the respondent.

This application was heard on November 23, 2009, at Ottawa, Ontario, before Martineau, J., of the Federal Court, who delivered the following judgment on January 18, 2010.

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6 practice notes
  • Table of cases
    • Canada
    • Irwin Books The Laws of Government. Second Edition
    • 14 Junio 2011
    ...1 (1976)..............................................................................101–2 Callaghan v. Canada (Chief Electoral Off‌icer), 2010 FC 43.............................................111 Cameron v. Boyle, [1994] O.J. No. 782 (Gen. Div.) ................................................
  • Voting and Elections
    • Canada
    • Irwin Books The Laws of Government. Second Edition
    • 14 Junio 2011
    ...they know that in each quarter, in this case, they will receive” an allowance. 213 208 Callaghan v. Canada (Chief Electoral Off‌icer) , 2010 FC 43. 209 Elections Act , above note 2, s. 435.01. The Ontario Court of Appeal upheld these 2 and 5 percent vote percentages as constitutional (in te......
  • PC Ontario Fund et al. v. Essensa, 2011 ONSC 2641
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • 27 Abril 2011
    ...Electoral Officer) - see Campbell et al. v. Canada (Chief Electoral Officer). Campbell et al. v. Canada (Chief Electoral Officer) (2010), 361 F.T.R. 114; 2010 FC 43, revd. (2011), 413 N.R. 248; 2011 FCA 74, refd to. [para. Jacko v. McLellan (2008), 247 O.A.C. 318; 306 D.L.R.(4th) 126 (Div. ......
  • Samideh v. Canada (Citizenship and Immigration), 2023 FC 854
    • Canada
    • Federal Court (Canada)
    • 16 Junio 2023
    ...for a writ of mandamus does not require a determination of the applicable standard of review: Callaghan v Canada (Chief Electoral Officer), 2010 FC 43 at para IV. Analysis [23] The legal test to be applied when determining whether to grant an order for mandamus is set out in Kalachnikov v C......
  • Request a trial to view additional results
4 cases
  • PC Ontario Fund et al. v. Essensa, 2011 ONSC 2641
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • 27 Abril 2011
    ...Electoral Officer) - see Campbell et al. v. Canada (Chief Electoral Officer). Campbell et al. v. Canada (Chief Electoral Officer) (2010), 361 F.T.R. 114; 2010 FC 43, revd. (2011), 413 N.R. 248; 2011 FCA 74, refd to. [para. Jacko v. McLellan (2008), 247 O.A.C. 318; 306 D.L.R.(4th) 126 (Div. ......
  • Samideh v. Canada (Citizenship and Immigration), 2023 FC 854
    • Canada
    • Federal Court (Canada)
    • 16 Junio 2023
    ...for a writ of mandamus does not require a determination of the applicable standard of review: Callaghan v Canada (Chief Electoral Officer), 2010 FC 43 at para IV. Analysis [23] The legal test to be applied when determining whether to grant an order for mandamus is set out in Kalachnikov v C......
  • R. v. Del Mastro, 2017 ONCA 711
    • Canada
    • Court of Appeal (Ontario)
    • 13 Septiembre 2017
    ...it is paid or unpaid. [20] The parties endorse the test for an election expense set out in Callaghan v. Canada (Chief Electoral Officer), 2010 FC 43, [2011] 2 F.C.R. 3, rev’d 2011 FCA 74, [2011] 2 F.C.R. 80, at para. 120: (i) it must have been incurred by the candidate reporting it; (ii) th......
  • Campbell et al. v. Canada (Chief Electoral Officer), 2011 FCA 74
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • 28 Febrero 2011
    ...new certificates to permit partial reimbursement of the claimed advertising expenses. The Federal Court, in a judgment reported (2010), 361 F.T.R. 114, allowed the application and remitted the matter to the CEOC with directions respecting the payment of the claimed expenses. The CEOC appeal......
2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books The Laws of Government. Second Edition
    • 14 Junio 2011
    ...1 (1976)..............................................................................101–2 Callaghan v. Canada (Chief Electoral Off‌icer), 2010 FC 43.............................................111 Cameron v. Boyle, [1994] O.J. No. 782 (Gen. Div.) ................................................
  • Voting and Elections
    • Canada
    • Irwin Books The Laws of Government. Second Edition
    • 14 Junio 2011
    ...they know that in each quarter, in this case, they will receive” an allowance. 213 208 Callaghan v. Canada (Chief Electoral Off‌icer) , 2010 FC 43. 209 Elections Act , above note 2, s. 435.01. The Ontario Court of Appeal upheld these 2 and 5 percent vote percentages as constitutional (in te......

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