Longley et al. v. Canada (Attorney General), (2007) 223 O.A.C. 102 (CA)

• Judge: Weiler, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 26, 2007
• Jurisdiction: Ontario
• Citations: (2007), 223 O.A.C. 102 (CA);2007 ONCA 149;[2007] OJ No 929 (QL);153 CRR (2d) 224;156 ACWS (3d) 280;223 OAC 102

Longley v. Can. (A.G.) (2007), 223 O.A.C. 102 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MR.094

Blair T. Longley, Kevin Peck, Miguel Figueroa, Jim Harris, Marijuana Party, Canadian Action Party, Communist Party of Canada, Green Party of Canada Christian Heritage Party and Progressive Canadian Party (responding parties/respondent) v. The Attorney General (moving party/appellant)

(M34627; C46236)

Indexed As: Longley et al. v. Canada (Attorney General)

Ontario Court of Appeal

Weiler, J.A.

March 7, 2007.

Summary:

Section 453.01 of the Canada Elections Act entitled registered political parties to receive an additional measure of public funding in the form of $1.75 per vote per annum based on the level of voter support that the parties received in the previous federal election. Eligibility for that funding was restricted to parties that obtained 2% of the national vote or 5% of the votes in electoral districts in which the party fielded candidates. An application judge declared that ss. 453.01(1)(a) and (b) of the Act were unconstitutional and of no force and effect. The Attorney General of Canada appealed and applied for a stay of two paragraphs of the application judge's order pending the appeal.

The Ontario Court of Appeal, per Weiler, J.A., granted the application for a stay.

Practice - Topic 5948

Judgments and orders - Enforcement of orders - Stay of - [See Practice - Topic 8950 and Practice - Topic 8952 ].

Practice - Topic 8950

Appeals - Stay of proceedings pending appeal - General principles - An application judge declared that the thresholds for public funding for political parties in s. 453.01(1)(a) and (b) of the Canada Elections Act were unconstitutional and of no force and effect - Paragraph 2 of the application judge's order ordered that s. 435.01(1) read: "The Chief Electoral Officer shall determine, for each quarter of a calendar year, an allowance payable to a registered party whose candidates for the most recent general election preceding that quarter received at that election at least one vote" - The Attorney General of Canada appealed and applied for a stay of paragraph 2 of the order pending the appeal - The Attorney General argued that the prospective payments ordered in paragraph 2 were an order for the payment of money and the filing of a notice of appeal automatically stayed that portion of the order pursuant to Civil Procedure Rule 63.01 - The Ontario Court of Appeal, per Weiler, J.A., held that paragraph 2 of the order was not a fixed debt obligation and it was not an order for the payment of money within the meaning of rule 63.01(1) - See paragraphs 11 to 13.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - An application judge declared that the thresholds for public funding for political parties in s. 453.01(1)(a) and (b) of the Canada Elections Act were unconstitutional and of no force and effect - Paragraph 2 of the application judge's order ordered that s. 435.01(1) read: "The Chief Electoral Officer shall determine, for each quarter of a calendar year, an allowance payable to a registered party whose candidates for the most recent general election preceding that quarter received at that election at least one vote" - The Attorney General of Canada appealed and applied for a stay of paragraph 2 of the order pending the appeal - The Ontario Court of Appeal, per Weiler, J.A., granted a stay of paragraph 2 - There was a serious issue to be determined on the appeal - If paragraph 2 of the order was not stayed, the potential for greater politicization of the role of the Chief Electoral Officer and the resulting risk of a loss of public confidence was a valid concern and irreparable harm would ensue if that confidence was undermined - The balance of convenience clearly favoured the Attorney General - It was in the interests of justice to maintain the status quo pending the hearing of the appeal - See paragraphs 16 to 29.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See Practice - Topic 8952 ].

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - [See Practice - Topic 8952 ].

Cases Noticed:

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912; 306 N.R. 70; 176 O.A.C. 89, consd. [para. 3].

Dickie v. Dickie (2006), 206 O.A.C. 257; 78 O.R.(3d) 1 (C.A.), revd. (2007), 357 N.R. 196; 2007 SCC 8, refd to. [para. 11].

Lee v. Lee, [1995] O.J. No. 1196 (Div. Ct.), refd to. [para. 11].

Circuit World Corp. v. Lesperance et al. (1997), 104 O.A.C. 59; 33 O.R.(3d) 674 (C.A.), refd to. [para. 14].

Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al. (1994), 95 Man.R.(2d) 241; 70 W.A.C. 241 (C.A.), refd to. [para. 15].

International Corona Resources Ltd. v. Lac Minerals Ltd. (1986), 21 C.P.C.(2d) 252 (Ont. C.A.), refd to. [para. 15].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 16].

Horsefield v. Registrar of Motor Vehicles (Ont.) (1997), 102 O.A.C. 285; 35 O.R.(3d) 304 (C.A.), refd to. [para. 16].

Henco Industries Ltd. v. Haudenosaunee Six Nations (2006), 82 O.R.(3d) 338 (C.A.), refd to. [para. 20].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 63.01(1) [para. 11].

Counsel:

Roslyn J. Levine, Q.C., and Gail Sinclair, for the moving party;

Peter Rosenthal, for the responding parties.

This application was heard in Chambers on February 26, 2007, before Weiler, J.A., of the Ontario Court of Appeal, who released the following decision on March 7, 2007.