Jim Karygiannis to lose Toronto city council seat after latest court ruling, June 24, 2020 CBC article reports; Sept. 24, 2020 CBC article notes Karygiannis leaving politics after being removed from office for 3rd time

Updates: An Aug. 5, 2020 Toronto Star article reads: “Jim Karygiannis gets his Toronto city council seat back once again.”

A Sept. 24, 2020 tweet from Toronto Star reporter Jennifer Pagliaro notes that for a third and final time, Jim Karygiannis has been kicked out of office. The Supreme Court of Canada has rejected his last-ditch effort to keep his Scarborough seat. The tweet notes a story is to follow in the Toronto Star.

A Sept. 24, 2020 CBC article is entitled: “Jim Karygiannis leaving politics after being removed from Toronto city council for 3rd time.”

An excerpt reads:

Karygiannis was first removed from office in November 2019 after details about the alleged spending violations were first reported by Toronto.com.

He was reinstated later that month by a Superior Court judge, who said that Karygiannis “acted in good faith” and did not appear to have deliberately skirted election laws.

Karygiannis described the spending violation as a “clerical error.”

Following the first reinstatement, Adam Chaleff, a local fair elections advocate, successfully appealed the Ontario Superior Court ruling in June, which triggered Karygiannis’ second removal from office.

An Oct. 27, 2020 Toronto Star article reads: “Byelection to be held in Scarborough-Agincourt to fill Jim Karygiannis’ council seat.”

An excerpt reads:

Karygiannis first lost his seat after the clerk discovered that he had overspent a strict campaign limit by nearly $26,000. After a lengthy legal battle, including a final and failed attempt to have the Supreme Court of Canada hear his case, Karygiannis was permanently removed from office.

Under provincial rules, he is ineligible to run again until after the next general election in 2022.

Karygiannis, in an earlier statement, said he is “leaving politics.”

[End]

*

A June 24, 2020 CBC article is entitled: “Jim Karygiannis to lose Toronto city council seat after latest court ruling. Karygiannis allegedly violated campaign spending rules during the 2018 election.”

An excerpt reads:

Toronto city councillor Jim Karygiannis has been removed from office for a second time after the Ontario Court of Appeal overturned his previous reinstatement.

Karygiannis initially lost his council seat due to alleged campaign spending violations dating to the 2018 municipal election.

He was reinstated by a Superior Court judge in November 2019 after being removed from office earlier that month.

Adam Chaleff, the Toronto voter who appealed the Superior Court ruling, confirmed his victory at the Court of Appeal on Wednesday morning.

Chaleff argued that the judge made errors in his decision to reinstate Karygiannis, and that his return to council “would signal to every local politician in the province that they can overspend with impunity on their election campaigns because they can run to court afterwards to keep their office.”

Text of ruling

The Ontario Court of Appeal decision can be accessed here.

The online document (see link in previous sentence) does not make for easy reading given the enormous line length and lack of margins; for enhanced ease of reading, I post the text below:

COURT OF APPEAL FOR ONTARIO

CITATION: Karygiannis v. Toronto (City), 2020 ONCA 411

DATE: 20200624

DOCKET: C67742

Benotto, Zarnett and Thorburn JJ.A.

BETWEEN

James Karygiannis

Applicant (Respondent)

and

City of Toronto and Ulli S. Watkiss

Respondents (Respondents)

and

Adam Chaleff

Intervenor (Appellant)

Stephen Aylward and Zachary Al-Khatib, for the appellant

Sean Dewart and Adrienne Lei, for the respondent James Karygiannis

Mark Sibioni for the respondents, the City of Toronto and Ulli S. Watkiss

Heard: May 27, 2020 by teleconference

On appeal from the judgment of Justice William S. Chalmers of the Superior Court of Justice, dated November 25, 2019.

Thorburn J.A.:

1. OVERVIEW

[1] The appellant, Adam Chaleff is a Toronto voter. He appeals the application judge’s decision to grant the respondent, James Karygiannis, relief from forfeiture of his office arising out of the Municipal Elections Act, 1996, S.O. 1996, c. 32, Sched. (“the Act”) provisions relating to campaign finances.

[2] The respondent was re-elected a Councillor for the City of Toronto on October 22, 2018. Like all candidates for City Council, he was required to provide a financial statement outlining his campaign income and expenses.

[3] The respondent filed his financial statement on March 27, 2019.

[4] Two complaints were received about his allocation of expenses and a compliance audit was ordered. The respondent was therefore allowed to file a Supplementary Financial Statement.

[5] On October 28, 2019, the respondent filed a Supplementary Financial Statement that showed he exceeded the allowable spending limit for expressions of appreciation during the 2018 election. Section 88.23(2) of the Act provides that the penalty for doing so is, among other things, automatic forfeiture of office.

[6] On November 6, 2019, after reviewing the Supplementary Financial Statement, the City Clerk noted that the expenses he had submitted exceeded the allowable limit and advised the respondent that he was removed from office.

[7] Five days later, the respondent applied for relief from forfeiture, claiming this was simply a good faith error in categorizing his expenses. On November 25, 2019, the application judge granted relief from forfeiture.

[8] The appellant, who intervened in the proceedings below, claims the application judge had no jurisdiction to grant relief from forfeiture. Even if he did, he should not have exercised his discretion to do so in the circumstances of this case.

[9] In addressing the issue of whether there is jurisdiction to grant relief from forfeiture, I will first examine the rules governing spending limits for election campaigns and then look at the interpretation of the penalty provision of s. 88.23 based on the wording of the section, its meaning when considered in the context of the Act as a whole, and the intention of the legislators. I will then examine whether there is jurisdiction pursuant to s. 98 of the Courts of Justice Act, R.S.O. 1990, c. C.43, to allow relief from forfeiture.

[10] For reasons that follow, I conclude there is no jurisdiction to provide relief from forfeiture in the circumstances of this case. I would grant the appeal and set aside the order below. I would substitute a declaration that the respondent is subject to the penalties under s. 88.23(2) of the Municipal Elections Act, including forfeiture of his office.

2. THE RULES GOVERNING CANDIDATES’ CAMPAIGN CONTRIBUTIONS AND EXPENSES

A. LIMITS ON CONTRIBUTIONS AND EXPENSES

[11] The Act includes rules governing a City Council candidate’s campaign income and expenses and penalties for contravening those rules.

[12] There is no rule against raising more income than required to cover the candidate’s allowable expenses, but all surplus funds must be paid to the City at the end of the election campaign period.

[13] The Act prohibits candidates from exceeding the spending limits allowed under the formulae prescribed by the Minister.

[14] For the purposes of this appeal, there are three relevant categories of expenses: general spending, expressions of appreciation, and fundraising.

[15] Spending allocations are tied to the number of electors in the ward. According to the prescribed formula, the respondent was informed that he was allowed:

(a) General expenses of up to $61,207.80;

(b) Expressions of appreciation expenses of up to 10% of the general spending limit, or $6,120.80; and

(c) Fundraising expenses that are not subject to any spending limit.

[16] Section 88.8(2) of the Act provides that a candidate can only receive contributions during a campaign period, which, in the case of this election, ended on December 31, 2018. However, under subparagraph 5 of s. 88.24(1), the election campaign period is deemed to re-commence if, among other things, the candidate incurs expenses related to a compliance audit.

B. FINANCIAL DISCLOSURE TO THE CITY

[17] Section 88.25 provides that all campaign expenses are required to be listed in a financial statement provided to the City Clerk. A campaign expense is defined in s. 88.19 as the cost of goods or services used in the campaign.

[18] If a candidate files a supplementary financial statement, the supplementary financial statement may update what was in the first financial statement but cannot change the information in the first financial statement: s. 88.25(6).

[19] Councillors may make corrections to a financial statement provided those corrections are made before the filing deadline: s. 88.25(3).

C. PROCESS FOR ELECTOR COMPLAINTS

[20] An elector may file an application with the City Clerk for a compliance audit if the elector believes on reasonable grounds that a candidate has contravened a provision of the Act relating to election campaign finances. The City Clerk is then required to forward the application to a three-member compliance audit committee comprised of members of the public appointed before the election.

[21] Within 30 days of the committee’s receipt of the application, the committee must decide whether to grant the application and provide brief written reasons for their decision. The decision to grant the application may be appealed to the Superior Court of Justice within 15 days after the decision is made, and the court may make any decision the committee could have made: ss. 88.33(7)-(9).

[22] If the committee decides to grant the application for an audit, it appoints an auditor licensed under the Public Accounting Act, 2004, S.O. 2004, c. 8, to conduct a compliance audit of the candidate’s election campaign finances. The auditor must provide a report to the compliance audit committee outlining any apparent contravention of the Act by the candidate.

[23] If the auditor’s report finds there was an apparent contravention of the Act, the compliance audit committee is required to decide whether to commence a legal proceeding against the candidate. The committee must provide brief reasons for the decision: ss. 88.33(17)-(18).

[24] Legal proceedings for Municipal Elections Act offences are brought before the Ontario Court of Justice: s. 92(2).

D. TWO DIFFERENT PROCESSES AND TWO DIFFERENT PENALTIES

[25] Sections 88.23(1)(c) and (2) of the Act provide that when a candidate files a document that shows on its face that the candidate incurred expenses exceeding the allowable expenses, the candidate forfeits his or her office and is ineligible to be elected again until the next election has taken place.

[26] The full section reads as follows:

Effect of default by candidate

88.23 (1) A candidate is subject to the penalties listed in subsection (2), in addition to any other penalty that may be imposed under this Act,

(a) if the candidate fails to file a document as required under section 88.25 or 88.32 by the relevant date;

(b) if a document filed under section 88.25 shows on its face a surplus, as described in section 88.31, and the candidate fails to pay the amount required by subsection 88.31 (4) to the clerk by the relevant date;

(c) if a document filed under section 88.25 shows on its face that the candidate has incurred expenses exceeding what is permitted under section 88.20; or

(d) if a document filed under section 88.32 shows on its face a surplus and the candidate fails to pay the amount required by that section by the relevant date.

Penalties

(2) Subject to subsection (7), in the case of a default described in subsection (1),

(a) the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant; and

(b) until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies.

[27] The compliance audit committee may also decide to commence legal proceedings where a candidate appears to have committed an offence pursuant to s. 92(1). Section 92(1) reads as follows:

92 (1) A candidate is guilty of an offence and, on conviction, in addition to any other penalty that may be imposed under this Act, is subject to the penalties described in subsection 88.23 (2),

(a) if the candidate incurs expenses that exceed the amount determined for the office under section 88.20; or

(b) if the candidate files a document under section 88.25 or 88.32 that is incorrect or otherwise does not comply with that section.

[28] Legal proceedings are brought before the Ontario Court of Justice. In such case, the candidate may be subject not only to the penalties listed above, but also a fine of up to $25,000, repayment of any excess amount, and/or up to six months’ imprisonment.

[29] In a prosecution under s. 92, if the judge finds that the candidate, acting in good faith, committed the offence inadvertently or simply made an error in judgment (together referred to as “the good faith exception”), the penalties described in subsection 88.23(2) do not apply: s. 92(2). The good faith exception affords additional protection in circumstances where a candidate faces greater jeopardy from penalties that can be imposed upon conviction for a s. 92 Act offence.

3. THE EVENTS IN QUESTION

A. THE SANTORINI GRILL DINNER

[30] On December 21, 2018, approximately two months after the election, the respondent hosted a dinner party at Santorini Grill. His affidavit states that the dinner was only for donors and that these donors were invited to the dinner in exchange for their agreement to contribute to his campaign:

Following voting day, I was approached by a number of people who expressed an interest in donating to my campaign. On December 21, 2018, I held a dinner party at Santorini Grill to which I invited persons who had agreed to contribute to my election campaign following election day. This was not an event to which my supporters in general were invited, but rather, was an event to which I invited only those persons who agreed to make contributions to my election campaign. It was an opportunity for people who had agreed to contribute to my campaign to network with one another, and was not open to the public or to my supporters in general.

…

It was not a party for my supporters generally, but rather was a function only for persons who were invited in exchange for their agreement to contribute to my campaign.

[31] The respondent spent $27,083.50 on the dinner and related expenses.

[32] It is not clear from the record whether and if so, how many of the guests actually donated to his campaign, and when the funds were received.

B. THE RESPONDENT’S FINANCIAL STATEMENTS

The First Financial Statement

[33] The respondent filed his Form 4 Financial Statement on March 27, 2019 (“the first Financial Statement”). The first Financial Statement provides that the respondent raised $217,669.44 and incurred the following expenses:

REVENUE

$217,699.44

ALLOWABLE EXPENSES LIMITS

ACTUAL EXPENSES

GENERAL SPENDING

$61,207.80

$43,812.55

EXPRESSIONS OF APPRECIATION EXPENSES

$6,120.80

0

FUNDRAISING EXPENSES

No spending limit

$47,259.86, including $27,083.50 for the Santorini dinner

OTHER EXPENSES NOT SUBJECT TO SPENDING LIMITS

No spending limit

$5,000 for a victory night party

[34] The first Financial Statement was audited by the respondent’s accountant before it was signed by the respondent and filed.

The Complaints

[35] The appellant and another candidate who ran against the respondent in the election filed applications for a compliance audit. They alleged that the respondent violated the Act’s campaign finance provisions by misallocating his expenses.

[36] The appellant complained that the respondent miscategorized the Santorini dinner, held two months after the election, as a fundraising event and that he did so to circumvent the general spending limit. The appellant also complained of honoraria to 19 supporters allocated as a post rather than pre-voting expense, and the recording of promotional flyers as a fundraising expense.

[37] The Compliance Audit Committee for the City of Toronto granted both applications and ordered a compliance audit in accordance with s. 88.33(10) of the Act.

[38] The respondent re-opened his campaign to raise funds for the compliance audit.

The Supplementary Financial Statement

[39] The respondent filed a Supplementary Financial Statement on October 28, 2019. This was the last day he could have filed without being subject to automatic forfeiture for failure to file.

[40] The Supplementary Financial Statement was prepared by a forensic auditor retained by the respondent. The respondent’s accountant also audited the Supplementary Financial Statement before the respondent signed and filed it with the City Clerk.

[41] Contrary to s. 88.25(6), the Supplementary Financial Statement contained information different from the first Financial Statement: the Santorini dinner and victory party were reported as expressions of appreciation events not fundraising and “other” expenses, as they were in the first Financial Statement. A comparison of the information in the first and Supplementary Financial Statement is set out below:

REVENUE

FIRST FINANCIAL STATEMENT

$217,669.44

SUPPLEMENTARY FINANCIAL STATEMENT

$320,934.69

EXPENSES

ALLOWABLE EXPENSES

FIRST FINANCIAL STATEMENT

SUPPLEMENTARY FINANCIAL STATEMENT

GENERAL SPENDING LIMIT

$61,207.80

$43,812.55

$44,212.55

EXPRESSIONS OF APPRECIATION SPENDING LIMIT

$6,120.80

0

$32,083.50 including $27,083.50 for the Santorini dinner and $5,000 for a victory night party

EXPENSES NOT SUBJECT TO SPENDING LIMITS (including Fundraising expenses)

No spending limit

$146,645.67 including $47,259.86 for fundraising (which included $27,083.50 for the Santorini dinner) and $5,000 for a victory night party

$143,525.04 including $21,125.60 for fundraising expenses

SURPLUS PAYABLE TO THE CITY

$27,211.22

$101,113.60

[42] The City Clerk reviewed the Supplementary Financial Statement and saw that in the Supplementary Financial Statement, the respondent reported that he incurred expenses for expressions of appreciation in the amount of $32,083.50. This greatly exceeded the spending limit for expressions of appreciation of $6,120.80.

[43] Section 88.23(2) of the Act requires automatic forfeiture of office if a financial statement filed under s. 88.25 shows on its face that the candidate exceeded the permitted spending limits. As a result, on November 6, 2019, the respondent was advised by the City Clerk that he had been removed from office.

[44] Because the Supplementary Financial Statement was filed on the last day, there was no opportunity to correct the information contained in it.

[45] The respondent claims the forensic auditor incorrectly allocated the expenses.

[46] On November 12, 2019, the respondent brought an application before the Superior Court for relief from forfeiture. As of the application date, the compliance audit process had not yet concluded.

4. THE APPLICATION JUDGE’S DECISION

[47] The application judge accepted that s. 88.23(2) of the Act stipulates that the respondent must automatically forfeit his office, since he submitted filings that, on their face, showed that he exceeded the spending limits provided in the Act. He also accepted that s. 88.23 contains no exception for inadvertence or good faith.

[48] The application judge expressed doubt about whether s. 98 of the Courts of Justice Act could be invoked to grant relief from forfeiture. He questioned “whether the general provisions of the CJA can supersede the specific penalties set out in the MEA.”

[49] However, he held that s. 92(2) of the Act, which deals with campaign finance offences and provides relief from forfeiture for similar conduct to that covered by s. 88.23(1)(c), allowed him to grant relief from forfeiture in these circumstances. Although the respondent had not been charged with or convicted of an offence under s. 92(1) of the Act, the application judge held that the good faith exception in s. 92(2) also applies to the forfeiture of a candidate’s office pursuant to s. 88.23(2) of the Act.

[50] The application judge found that “the error that set out the Santorini Grill in a different section in the Supplementary Financial Statement was made inadvertently” and “there was no attempt to hide the expense”. He held that it would be absurd not to interpret the legislation to allow relief from forfeiture as “this result could not have been intended by the Legislature.” He therefore found that “the exception set out in s. 92(2) of the MEA applies in the case of the automatic penalties set out in s. 88.23 of the MEA.”

[51] In exercising his discretion to grant relief from forfeiture, he noted that his decision “applies only to the penalty of forfeiture as it relates to the fact that in the Supplementary Financial Statement the expense related to the Santorini Grill dinner under the heading of expenses related to parties and other expressions of appreciation”. He made no determination as to whether the expense is a fundraising expense, or an expense relating to an expression of appreciation saying: “Those issues are properly before the Committee and are the subject matter of the compliance audit.”

5. THE POSITIONS OF THE PARTIES

[52] The issue of jurisdiction is a question of law reviewable on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-10. The exercise of discretion (assuming jurisdiction exists) involves questions of mixed fact and law and will not be interfered with in the absence of a palpable and overriding error: Housen, at para. 36

The Appellant’s Position

[53] First, the appellant claims the words in s. 88.23 are clear and unambiguous and provide no exception for good faith errors. This, the appellant contends, is consistent with the intention of the legislators and a contextual analysis of the legislation. The legislature intended to provide a cost-effective and expeditious penalty for filing a financial statement under s. 88.25 that shows on its face that the candidate exceeded the permitted spending limits under the Act. There is therefore no jurisdiction to provide relief from automatic forfeiture of office.

[54] Second, the appellant disputes the respondent’s assertion that s. 98 of the Courts of Justice Act applies, as the appellant claims this is a statutory penalty and that, in any case, the statutory regime necessarily precludes relief from forfeiture.

[55] Third, the appellant claims this was not a good faith error and therefore, even if there were jurisdiction to grant relief from forfeiture, such relief is not warranted in this case.

The Respondent’s Position

[56] First, the respondent argues s. 98 of the Courts of Justice Act provides jurisdiction to grant relief from forfeiture in these circumstances and that to hold otherwise would lead to an absurd result.

[57] Second, the respondent submits that the application judge properly exercised his discretion to grant relief from forfeiture in these circumstances. The respondent submits that the application judge correctly found that the forensic auditor mistakenly put the Santorini dinner in the wrong category in the Supplementary Financial Statement and the document therefore mistakenly shows that he spent more than he was permitted to pursuant to s. 88.20. He claims, however, that he did not spend more than he was permitted and that the Santorini dinner was correctly classified in the original filing as a fundraising expense.

6. ISSUES

[58] The appellant raises two issues on this appeal:

i. Whether there is jurisdiction to grant relief from forfeiture, and if so

ii. Whether relief from forfeiture should be granted.

7. ANALYSIS AND CONCLUSION

A. OVERVIEW: JURISDICTION UNDER SECTION 98 OF THE COURTS OF JUSTICE ACT

[59] The parties agree that the application judge erred in asserting there was jurisdiction to provide relief from forfeiture in this case by invoking s. 92 of the Act to impute a good faith exception to the penalties set out in s. 88.23. A similar good faith exception was removed from what is now s. 88.23 in 2002. As such, the good faith exception in s. 92, which may be exercised by a judge of the Ontario Court of Justice upon convicting a candidate of an offence, cannot be interpreted as creating a power in a Superior Court judge to relieve a candidate from the automatic consequences in s. 88.23.

[60] As such, the only issue in respect of the question of jurisdiction is whether relief from forfeiture is available under s. 98 of the Courts of Justice Act given the meaning of s. 88.23 as set out in the words of the provision, the context of the legislation and the intention of the legislators.

[61] Section 98 of the Courts of Justice Act states that “[a] court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.”

[62] The mere fact that a statutory scheme is involved does not preclude relief under s. 98: Poplar Point First Nation Development Corporation v. Thunder Bay (City), 2016 ONCA 934, 135 O.R. (3d) 458, at para. 55, leave to appeal refused, [2017] S.C.C.A. No. 60. However, this court held in Poplar Point, at paras. 7, 44-45, 57, and 61, that relief from penalties or forfeiture is not available under s. 98:

(a) in cases involving a true statutory penalty, or

(b) when the statutory regime expressly or by necessary implication precludes relief.

[63] To determine whether relief is available under s. 98 of the Courts of Justice Act in the circumstances of this case, it is important to start by examining the relevant provisions and the intention of the legislators who crafted those provisions.

B. THE STATUTORY CONTEXT

The Words in the Relevant Provision: Section 88.23 of the Act

[64] Whether a statute gives jurisdiction to grant relief is a matter of statutory interpretation. Words in a statute are to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R 601, at para. 10, citing 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50.

[65] Where the words in a statute are clear and precise, the ordinary meaning of those words plays a dominant role in the interpretive process: Canada Trustco Mortgage Co., at para. 10.

[66] The words in s. 88.23 are clear: “if a document filed under section 88.25 shows on its face that the candidate has incurred expenses exceeding what is permitted under section 88.20 … the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant and until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies.”

[67] The ordinary meaning of those words is that where a document is submitted that on its face shows a candidate exceeded and thus violated the spending limit, the penalty is forfeiture of office.

[68] The parties agree that the respondent contravened s. 88.23(1)(c) as the Supplementary Financial Statement filed shows on its face that the respondent incurred expenses exceeding what is permitted under s. 88.20 of the Act. The Supplementary Financial Statement provides that the respondent exceeded the allowable expenses for expressions of appreciation for supporters by over $25,000. Moreover, that allocation of funds is different than the allocation in the first Financial Statement.

Section 88.23 in the Context of the Act: Comparing and Contrasting s. 88.23 and s. 92

[69] The conduct captured by s. 92(1) overlaps with the conduct captured by s. 88.23(1)(c).

[70] Subsections 88.23(1) and (2) stipulate that it will be an act of “default” to file a document that, on its face, shows that the candidate exceeded the permissible spending limit. Section 92(1) makes it an offence for a candidate to exceed the permissible spending limits or file a financial statement under s. 88.25 that is incorrect or otherwise does not comply with the Act. In that sense, the conduct captured under s. 88.23(1)(c) is also captured by s. 92(1).

[71] Both sections set out specific penalties for candidates who contravene those provisions that include forfeiture of office.

[72] However, unlike s. 88.23, s. 92:

a) provides broader penalties than just forfeiture of office and ineligibility to run in the next election, as provided in s. 88.23(2); and

b) allows a judge to grant relief from the penalties set out in s. 88.23(2). This exception under s. 92(2) reads as follows:

[I]f the presiding judge finds that the candidate, acting in good faith, committed the offence inadvertently or because of an error in judgment, the penalties described in subsection 88.23(2) do not apply.

[73] The respondent concedes, and I agree, that s. 92(2) does not authorize a judge to grant relief from forfeiture before prosecution and conviction.

[74] The respondent has not been charged with an offence under the Act as the compliance audit process is still ongoing. As a result, the application judge erred by relying on s. 92(2) to grant relief in these circumstances.

The Purposive Interpretation of s. 88.23 of the Act

[75] The legislature made a deliberate choice to simplify the process for enforcing the Act and remove the court’s ability to grant relief from forfeiture under s. 88.23.

[76] Prior to 2002, what is now s. 88.23 of the Act included a provision that allowed relief from forfeiture of office upon an act of default. The exemption from forfeiture provision that was in effect until 2002 reads as follows:

(6) The candidate may, on or before the 11th day after the notice is mailed, apply to the Ontario Court (Provincial Division) for a declaration that the penalties do not apply to him or her.

(7) The court shall make the declaration if it is satisfied that the candidate, acting in good faith, committed the default inadvertently or because of an error in judgment.

[77] In 2002, the provincial government decided to amend this provision of the Act to remove the court’s ability to grant relief from automatic forfeiture.

[78] As early as 1986, the Advisory Committee on Municipal Elections had outlined the shortcomings of the previous elector-based enforcement model and therefore recommended a “mandatory and self-enforcing” enforcement mechanism. The Committee discussed the fact that many candidates fail to report their campaign contributions and expenses and observed that:

Legal and court costs tend to discourage an elector from taking action so as to ensure that candidates comply with the provisions of s. 121 [the campaign finance provisions of the Municipal Elections Act and related municipal by-laws.]

…

We are of the view that disclosure should be mandatory and self-enforcing: we do not believe that electors should have to initiate legal action to ensure compliance. Therefore, if a candidate fails to comply with the proposed reporting requirements, he/she should be subject to the following penalties:

1. loss of deposit,

2. disqualification from office if elected; and

3. ineligibility to seek or hold municipal office for a specified period.

[79] The opposition critic for Municipal Affairs and Housing outlined the same concern about the costs of enforcing the Act when proposing his own amendments during the discussion of the Standing Committee on General Government in 2002:

Mr. Prue: If I could, by way of background, we have started to see that the section which was previously in the act is causing some considerable problems in municipal councils in Ontario.

The two most famous cases probably are those that involve the city of Mississauga and the city of Toronto. In the case of the city of Mississauga, upon looking at the case of a person the council believed may have contravened the act, they set about a process, the hiring of an auditor, to get to the bottom of the case. It involved some $100,000 of the city of Mississauga’s tax money. They then voted as a council near unanimously to take the alleged offender to court. That has so far resulted in about another $100,000 in legal fees, and it probably will not be finalized before the next election. So in effect you have a person serving the full three-year term of office whom the auditor, the city council, the mayor, everyone, believe probably has contravened the Municipal Elections Act to get there.

Alternately, you have the case of the city of Toronto, which had two clearly well-documented cases of alleged improprieties against two of the members of the Toronto council. Upon the advice of the council and the mayor, who chose to do nothing, the aggrieved people are still before the courts nearly some two years later trying to get redress and to get people to listen to the complaint. Obviously, it is not working.

So in the case where a city does something, there is a $200,000 bill attached to it; in the case where a city does nothing, the citizens get no redress. [Emphasis added]

Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., G-13 (18 November 2002), at p. G-230.

[80] In 2002, the provincial government ultimately decided to address the problem by abolishing the saving provision in what is now s. 88.23, thus requiring the automatic removal of a candidate from office for any infraction listed in that section in all cases.

[81] The Parliamentary Assistant to the Minister of Municipal Affairs explained that:

[The amendment] proposes more stringent penalties for candidates who either fail to file their required campaign records or file them late. Most candidates file their financial records on time, but some haven’t met the deadline. Currently, a candidate who does not file on time is supposed to be disqualified from office and ineligible to run in the next election. What actually happens, though, is that candidates always appeal to the courts, and the courts invariably allow them to file later without penalty. This diminishes the accountability of the election process by allowing candidates to avoid disclosure.

Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37th Parl., 3rd Sess., No. 38B (7 October 2002), at p. 1902.

[82] These discussions related primarily to the cost of enforcing the Act’s disclosure requirements.

[83] However, it is clear from excerpts of the debate preceding the amendment that the overall purpose for removing a good faith exception in what is now s. 88.23 was to deter the significant non-compliance by candidates, including elected councillors, in a cost-effective way.

[84] As noted by Dunphy J. in Giannini v. City of Toronto, 2017 ONSC 1489, 137 O.R. (3d) 109, at para. 27, “[t]he fact that more than 100 candidates from the last election in Toronto alone are currently in default strongly suggests that great caution should be exercised in considering disturbing the scheme of the legislation in question.”

[85] Legislators noted the problem of allowing a good faith exception to be asserted, thus enabling an expensive process to go on for years while the councillor who violated the Act remained in office. The debates articulate policy reasons for making this amendment, including the desire to deter those who would not comply with filing deadlines and to enable the Act to be enforced expeditiously and in a cost-effective manner.

[86] It is clear from looking at the legislative debates that the legislators intended to remove the good faith exception in what is now s. 88.23 of the Act.

C. WHETHER S. 98 OF THE COURTS OF JUSTICE ACT GIVES THE COURT JURISDICTION TO GRANT RELIEF FROM FORFEITURE

[87] Section 98 of the Courts of Justice Act provides that “[a] court may grant relief against penalties and forfeitures, on such terms as to compensation or otherwise as are considered just.”

[88] Applying the rationale from Poplar Point, in order to obtain relief from forfeiture pursuant to s. 98 of the Courts of Justice Act, the respondent must establish both that:

(1) s. 88.23(2) is not a true statutory penalty, and

(2) the statutory regime does not expressly or by necessary implication preclude relief: Poplar Point, at paras. 7, 44-45, 57, and 61.

[89] The reason s. 98 is not applicable to a true statutory penalty is that “granting relief from forfeiture would amount to rewriting or repealing the statute, revoking the very consequence for breach of the statute that the legislature prescribed”: Poplar Point, at para. 61.

Automatic Forfeiture is a Statutory Penalty

[90] The respondent claims the automatic forfeiture rule is not a “true statutory penalty”. The respondent contends that a statutory penalty only includes criminal or statutory offences and that s. 88.23(2) of the Act by itself does not create a statutory offence as it is a “purely administrative provision.”

[91] I do not agree.

[92] In Poplar Point, this court made clear that a “statutory penalty” is any penalty imposed for breach of any requirement of the statute: Poplar Point, at paras. 7, 58.

[93] The observation at para. 61 of Poplar Point that “the ability to grant such relief from forfeitures and penalties is in the context of civil proceedings, and not criminal or statutory offences” simply acknowledges that s. 98, as part of Part VII of the Courts of Justice Act, only applies to “civil proceedings in courts of Ontario”: Courts of Justice Act, s. 95(1).

[94] Nor do I accept the respondent’s characterization of s. 88.23 as an “automatic and purely administrative provision” which does not clearly preclude the ability of the court to exercise its discretion to grant relief from forfeiture. Section 88.23 sets out statutory requirements and consequences for breach of those statutory requirements.

[95] While a breach of those same obligations can also be the basis of a proceeding under s. 92, that same breach still attracts a “statutory penalty” immediately upon default within the meaning of Poplar Point. Moreover, nothing in Poplar Point suggests a distinction between statutory penalties that are enforced through administrative or other means.

[96] As a result, I conclude that s. 88.23(2) is a statutory penalty. Section 98 of the Courts of Justice Act cannot apply where granting relief would undermine the very consequences that the legislature prescribed for violating the provisions of the Act.

[97] Because s. 88.23(2) is a statutory penalty, relief from forfeiture is not available to the respondent. In any event, I will address the second part of the test for obtaining relief from forfeiture pursuant to s. 98 of the Courts of Justice Act.

Relief under s. 98 of the Courts of Justice Act is Necessarily Precluded by the Statutory Scheme

[98] The respondent claims that in previous cases, relief was granted to some extent relying on s. 98. He says these cases highlight the absurdities that would result if relief under s. 98 were not available in this case.

[99] Consideration of hypotheticals or other examples is useful when interpreting the meaning of legislation: Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75, 114 O.R. (3d) 321, at para. 38. It is presumed that the legislature does not intend to produce absurd consequences. It is important to look at the words read in their entire context, in their grammatical and ordinary meaning, seen harmoniously with the scheme of the Act: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 27. This is important to ensure that the true intention of the legislators is given effect.

[100] The respondent points to cases such as Niagara Falls (City) v. Diodati, 2011 ONSC 2180, 106 O.R. (3d) 154, when the court ordered relief from forfeiture because the mayor filed a financial statement that misallocated one of his campaign expenses. The financial statement showed that the candidate had exceeded the limit by $72.74, when he had in fact spent $82.07 less than the limit. The basis for this decision was that it would be absurd to do otherwise.

[101] However, Diodati predates the decision of this court in Poplar Point, as do the decisions in Obina v. City of Ottawa, 2014 ONSC 4614, 28 M.P.L.R. (5th) 116, and Braid v. Georgian Bay (Township), 2011 ONSC 3618, 83 M.P.L.R. (4th) 335, referred to by the respondent.[1]

[102] In Poplar Point, the court noted that “[t]he question is … whether the language and scheme of the statute would exclude relief from forfeiture under s. 98”: at para. 55. See also Kingsway General Insurance Co. v. West Wawanosh Insurance Co. (2002), 58 O.R. (3d) 251 (C.A.), at para. 13.

[103] The respondent submits that candidates who commit trifling errors that do not warrant prosecution forfeit their seat automatically and with no further recourse, while candidates who are subject to prosecution under s. 92 are able to request relief from forfeiture. The respondent says that without relief from forfeiture under s. 98 of the Courts of Justice Act, his only recourse is to encourage the compliance audit committee to bring legal proceedings against him pursuant to s. 88.33(17) of the Act so that he can be prosecuted and convicted under s. 92(1) and then seek relief from forfeiture under s. 92(2). That, he submits is absurd.

[104] I disagree.

[105] It is true that after a prosecution and conviction, s. 92(2) authorizes the Ontario Court of Justice to grant relief from the consequences of filing a document that shows on its face that the candidate exceeded one or more of the relevant spending limits where the judge is satisfied that the candidate acted in good faith and the error was inadvertent or the result of an error in judgment, as opposed to a deliberate act.

[106] However, s. 88.23 provides clear automatic consequences for breach of very specific statutory requirements and the clear implication is that a candidate is not entitled to apply for relief from forfeiture in circumstances other than a s. 92 conviction. This is evidenced by the legislature’s deliberate choice to simplify the enforcement process and remove the ability of the court to grant relief from forfeiture under s. 88.23. The reasons for the removal were made clear in the legislative debates.

[107] Unlike s. 92, s. 88.23 was meant to be a cost-effective and expeditious means of deterring and enforcing specific violations of the Act. Councillors are given the opportunity to change their financial statements before the filing deadline. Where there is a clear violation of these specific provisions of the Act, the municipality can remove the candidate immediately and at little cost. The legislative policy discussions describe the challenges resulting from including a good faith exception in s. 88.23 and the reasons for its removal.

[108] Under the pre-2002 version of s. 88.23 of the Act, a candidate could apply to the Ontario Court (Provincial Division) for relief against automatic forfeiture of office, even if the candidate was not convicted of an offence. When that right existed, it by implication would have excluded s. 98 of the Courts of Justice Act, since it would have made no sense to have overlapping powers in the Superior Court to relieve against matters the legislature had already provided for in the Ontario Court. The removal of the right to apply to the Ontario Court, and the reasons why that was done, are inconsistent with a legislative intention to provide a right to apply to the Superior Court under the Courts of Justice Act. To so hold would undermine the very reason for the removal of the right to apply to the Ontario Court.

[109] As such, s. 88.23 is a statutory penalty and the language and scheme of the statute, in light of its history, exclude relief from forfeiture under s. 98 of the Courts of Justice Act in these circumstances.

8. CONCLUSION

[110] Municipal councillors are required to submit a financial statement outlining their income and expenses from the election campaign. Expenses are subject to clear spending limits and any income that exceeds the allowable expenses must be remitted to the City.

[111] Section 88.23 of the Act provides for forfeiture of office where a candidate files a document that shows the candidate incurred expenses that exceed the spending limits. The wording of this penalty provision is express and clear. What is now s. 88.23 was amended in 2002 to remove a good faith exception.

[112] Section 88.23 was meant to be a cost-efficient mechanism to deter contraventions of the Act. A review of the debates prior to enactment suggests there were serious concerns about non-compliance and the costs and delays of enforcing the Act. Legislators discussed expensive and time-consuming proceedings that left electors with unsatisfactory results sometimes years later after considerable sums in legal fees had been incurred.

[113] This is to be contrasted with s. 92, which does provide relief from forfeiture but also carries greater jeopardy for the candidate, including fines and possible imprisonment.

[114] This case is not about whether the respondent hid expenses as suggested by the application judge, but how he allocated his expenses and whether he exceeded the expense limits.

[115] The respondent concedes that his Supplementary Financial Statement shows he exceeded his spending limit for the 2018 election by a significant amount and contrary to the rules. This triggered his automatic removal from office pursuant to s. 88.23(2).

[116] The penalty imposed pursuant to s. 88.23 may be harsh in some cases but forfeiture is clearly what the legislators intended. It should be noted that honest errors can be corrected before the deadline for filing and, had the respondent submitted the Supplementary Financial Statement earlier, the statement could have been withdrawn and refiled to correct the errors in the statement.

[117] Granting relief from forfeiture would amount to rewriting or repealing the statute, revoking the very consequence for breach of the statute that the legislature prescribed. The statutory penalty in s. 88.23 precludes relief from forfeiture under s. 98 of the Courts of Justice Act.

[118] For these reasons I conclude there is no jurisdiction to grant relief from forfeiture.

[119] As a result, I need not consider whether, if there were jurisdiction, the discretion ought to be exercised on the facts of this case.

[120] In any event, unlike the cases in Diodati and Obina, the respondent has not clearly demonstrated to this court that this was a mere “clerical error”.

[121] For these reasons, I would grant the appeal and set aside the order below. I would grant a declaration that the respondent is subject to the penalties under s. 88.23(2) of the Act.

[122] No costs are sought and accordingly, I would award none.

Released: June 24, 2020 (“M.L.B.”)

“J.A. Thorburn J.A”

“I agree. M.L. Benotto J.A.”

“I agree. B. Zarnett J.A.”

[1] In addition to the fact that these cases predate Poplar Point, they do not assist for the reasons set out below:

Obina v. City of Ottawa, 2014 ONSC 4614, 28 M.P.L.R. (5th) 116: The respondent claimed a candidate could be required to forfeit their seat for filing financial statements three minutes late. However, in Obina, the candidate was barred from running in the next election not just because she filed her financial statements three minutes late, but also because she submitted her auditor’s report over three years past the deadline. In any case, the legislation has since been amended such that a candidate who files the financial statement within 30 days after the filing deadline is no longer subject to the penalties in s. 88.23(2) provided the late filing fee is paid: s. 88.23(9).

Braid v. Georgian Bay (Township), 2011 ONSC 3618, 83 M.P.L.R. (4th) 335: The respondent also argues a candidate could be required to forfeit his/her seat for filing an auditor’s report audited by someone eligible to be licensed under the Public Accounting Act, 2004, but who is not. In Braid, the court held that doing so would not require a candidate to forfeit a seat under s. 88.23(2) (then s. 80).

Braid is distinguishable as in Braid, the candidate had not failed to file an auditor’s report contrary to s. 88.23(1)(a) (then s. 80(1)(a)). Instead, the candidate filed one that did not comply with the Act. This constitutes an offence under s. 92(1) of the Act (then s. 92(5)), which makes it an offence to file a document under s. 88.25 (then s. 78) that is incorrect or otherwise does not comply with that section. However, it would not trigger automatic forfeiture of office and ineligibility to run in the next election unless the candidate was prosecuted and convicted.