FEDERAL COURT. - and -

Transcription

1 Court File No. T FEDERAL COURT BETWEEN: LEEANNE BIELLI Applicant - and - ATTORNEY GENERAL OF CANADA, MARC MARYLAND (Chief Electoral Officer), URMA ELLIS (RETURNING OFFICER FOR DON VALLEY EAST), JOE DANIEL, YASMIN RATANSI, MARY TRAPANI HYNES, AKIL SADIKALI, RYAN KIDD Respondents REPLY WRITTEN REPRESENTATIONS OF THE RESPONDENT, JOE DANIEL CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Arthur Hamilton Tel: Fax: ahamilton@casselsbrock.com Theodore Frankel Tel: Fax: tfrankel@casselsbrock.com Lawyers for the Respondent, Joe Daniel

2 2 TO: SACK GOLDBLATT MITCHELL LLP 30 Metcalfe Street Suite 500 Ottawa, ON K1 P 5L4 Steven Shrybman Tel: Fax: Lawyer for the Applicant AND TO: DEPARTMENT OF JUSTICE Bank of Canada Building East Tower, Room Wellington Street Ottawa, ON K1A OH8 Robert MacKinnon Zoe Oxaal Tel: Fax: Solicitors for the Respondent, Attorney General of Canada AND TO: BORDEN LADNER GERVAIS LLP Barristers and Solicitors World Exchange Plaza Queen Street Ottawa, ON K1P 1J9 Barbara Mclsaac, Q.C. Tel: Fax: Nadia Effendi Tel: Fax: Solicitors for the Respondent, Marc Maryland

3 3 AND TO: COWLING LAFLEUR HENDERSON LLP Barristers and Solicitors 160 Elgin Street Suite 2600 Ottawa, ON K1 P 1 C3 Guy Regimbald Tel: Fax: Solicitors for the Respondent, Yasmin Ratansi

4 Court File No. T FEDERAL COURT BETWEEN: LEEANNE BIELLI Applicant -and - ATTORNEY GENERAL OF CANADA, MARC MAYRAND (Chief Electoral Officer), URMA ELLIS (Returning Officer Don Valley East), JOE DANIEL, YASMIN RATANSI, MARY TRAPANI HYNES, AKIL SADIKALI, RYAN KIDD Respondents REPLY WRITTEN REPRESENTATIONS OF THE RESPONDENT, JOE DANIEL 1. The respondent's position is that the applicant's case, as set out in the pleading, has no chance of success. This is not, however, a "pleadings motion" concerned with the style or form of legal drafting. The applicant has failed to plead facts necessary to obtain a remedy pursuant to section 531(2) of the Canada Elections Act (the "Act"). This cannot be corrected through a fresh or amended pleading. 2. The notice of application does not plead facts which would support a finding that a practice or occurrence "affected the result in the election" in the electoral district of Don Valley East. The notice of application also does not plead facts which would support a finding that the number of votes affected by the alleged practice or occurrence exceeded the plurality of votes cast in the electoral district of Don Valley East, such that the Court might annul the election result. As such, even if accepted as true, the facts pleaded

5 cannot meet the requirements of section 524(1)(b) of the Act and cannot possibly lead to the Court granting a remedy pursuant to section 531(2) of the Act. 3. ~'he applicant overlooks or wishes to obscure the fact that the application is brought pursuant to Part 20 of the Act. It is not an application for judicial review pursuant to the Federal Courts Act and the David Bull standard does not apply. 4. The proceeding herein is akin to an action. There is no record being scrutinized as with a judicial review application. The applicant creates the record through the procedures set out in Part 20 of the Act. This proceeding is analogous to other statute-mandated applications which have been characterized by the Federal Court of Appeal as proceedings "de novo". Where such an application as this one does not disclose or even introduce fundamental elements which the applicant is required to prove to obtain the relief sought, the application is a nullity, unjust and a waste of Court resources, such that it should be immediately struck or dismissed. 5. Furthermore, early disposition of election challenges are explicitly provided for in section 531(1) of the Act which permits the Court to dismiss frivolous, vexatious or bad faith applications "at any time." The facts alleged do not address fundamental elements the applicant must prove 6. The applicant's written representations focus on the technical elements of pleadings. but this is not a pleadings motion. 7. ~y failing to put forward any facts which, if proven, would support an order declaring the election null and void, the applicant has completely ignored the

6 3 requirements of Part 20 of the Act. The respondent's challenge is not that the notice of application could have been drafted better. Rather the respondent states that the scope of the applicant's case, which the applicant has articulated by the notice of application, does not address each of the indicia which she must prove pursuant to section 524(1)(b) before the Court can consider annulling the election result. This failure renders the application fatally flawed. 8. Specifically, the allegations pleaded assumed to be true fall well short of establishing that a practice or occurrence "affected the result of the election" in the electoral district of Don Valley East. In other words, even if all the allegations pleaded are accepted as proven, the applicant could not possibly achieve the desired relief of a by-election pursuant to subsection 531(2). It is the utter lack of material facts not the quality or merit of the facts pleaded -that makes the application frivolous, vexatious, and completely devoid of merit. 9. The applicant's position, at its root, is that it would be too difficult to actually prove her case and that therefore she ought not be required to do so. Paragraphs 35 and 36 of her responding submission so state. In the recent Wrzesnewskyj decision, Justice Lederer specifically rejects this type of argument: [46] Counsel for the applicant pointed out that, given the limitations on the available evidence, it would be equally difficult for the applicant to prove the irregularities affected the result of the election, as it would be for the respondent to disprove this proposition. I am not sympathetic to this complaint. I referred earlier to the conundrum that would result if elections were easily overturned. It is not supposed to be easy to overturn an election. If it was, the frequent efforts to set aside elections would challenge the confidence of Canadians in the efficacy of our election process.

7 Reference Wrzesnewskyj v. Attorney General (Canada), 2012 ONSC 2873 at pars Justice Lederer considered what would constitute a practice or occurrence that could be sufficient to set aside an election result. Citing the reasoning in Wright v. Koziak, Justice Lederer noted that in that case the Court considered whether the cumulative impact of non-compliance or irregularities could impact the result of the election. Lederer J. was careful to distinguish between a "sort of general assessment proposed by counsel for the applicant" and instead noted that "it is required that the result of the election be shown to have been affected": [86] In other words, he considered whether the total number of votes affected by the different irregularities would affect the result. This is nothing more than adding up all the discounted votes to see if there are enough to overcome the plurality. This is consistent with determining if the "magic number" had been met. It is not the sort of general assessment proposed by counsel for the applicant. The Canada Elections Act does not allow for elections to be set aside simply by the accumulation of errors. It is required that the result of the election be shown to have been affected. [Emphasis added.] Reference Wrzesnewskyj v. Attorney General (Canada), 2012 ONSC 2873 at paras The material facts pleaded by the applicant to support the application are simply incapable of establishing either a right to a remedy or establishing an evidentiary record that would permit the Court to exercise its direction to grant the remedy of annulling the result of the election. The facts as pleaded by the applicant show only a generalized assessment of alleged conduct without disclosing even one single voter, beyond the applicant herself, who was prevented from voting by the alleged conduct.

8 5 This is a proceeding de novo and is "akin to an action" 12. The applicant argues that this motion does not "constitute the type of exceptional case that may be subject to summary dismissal" pursuant to the common law test established in David Bull. This submission is misguided and incorrect at law. David Bull has no application in this case. 13. Subsection 531(1) of the Act provides the Court with the authority to dismiss the application "at any time." An order by this Court to that effect is pursuant to the Act and is therefore not subject to the common law as established by David Bull. 14. David Bull concerns applications for judicial review, not applications pursuant to the Act. By contrast, an application pursuant to the Act is akin to an action in that there is no pre-existing record to be reviewed, there is fresh or first-instance evidence, the possibility for extensive cross-examinations, expert evidence, and oral evidence in appropriate circumstances. 15, The Federal Court of Appeal has recognized that certain proceedings, required to be constituted as "applications" by statute, are akin to actions and ought to be treated as such. For example, applications commenced under the Official Languages Act and the Personal Information Protection and Electronic Documents Act, provide for applications that are said to be a "proceeding de novo akin to an action", where "Parliament has created a 'remedy' in the Federal Court" and where such remedy "differs from an application for judicial review." Reference Englander v. Telus Communications Inc., 2004 FCA 387 at pars ; Forum des maires de la

9 0 Peninsule acadienne v. Canada (Food Inspection Agency), 2004 FCA 263 at paras and 30; Knopf v. Canada (House of Commons), 2006 FC 808 at para Similar to Part 20 of the Act, Part X of the Official Languages Act ("OLA") provides a complete procedural code for the adjudication of disputes under that part. The OLA also provides a time limit for the commencement of an application, provides express remedial powers to the Court beyond what is provided in the Federal Courts Act, and provides that an application under that Part of the OLA "shall be heard and determined in a summary manner." 17. I n Forum des maires de la Peninsule acadienne v. Canada (Food Inspection Agency), the Federal Court of Appeal considered an appeal from an application pursuant to Part X of the OLA and determined that Part X of the OLA differs from an application for judicial review within the meaning of the Federal Courts Act. The Federal Court of Appeal described this statutory process as a hearing de novo, similar to an action: [17] However, to ensure that the Official Languages Act has some teeth, that the rights or obligations it recognizes or imposes do not remain dead letters, and that the members of the official language minorities are not condemned to unceasing battles with no guarantees at the political level alone, Parliament has created a "remedy" in the Federal Court that the Commissioner herself (section 78) or the complainant (section 77) may use. This remedy, the scope of which I will examine later, is designed to verify the merits of the complaint, not the merits of the Commissioner's report (subsection 77(1)), and, where applicable, to secure relief that is appropriate and just in the circumstances (subsection 77(4))... [18] Thus we see that the remedy differs from an application for judicial review within the meaning of section 18.1 of the Federal Courts Act. It does not attack the "decision" of the federal institution as such. It may be undertaken by a person or a group, which may not be "directly affected by the matter in respect of which relief is sought" (see subsection 18.1(1) of the Federal Courts Act). The relief the applicant may be seeking is not limited to the remedies prescribed in subsection 18.1(3) of the Federal Courts Act, as the Court, by way of exception, has the discretion that it "considers appropriate and just in the circumstances" (subsection 77(4)). New evidence is admissible (section 79). The matter is heard and determined in a summary manner (section 80).

10 7 [19] There are some important implications to the fact that the remedy under Part X is basically similar to an action. [20] For example, the judge hears the matter de novo and is not limited to the evidence provided during the Commissioner's investigation. The remedy is constantly shifting in the sense that even ifthe merit of the complaint is determined as it existed at the time of the alleged breach, the remedy, if there is one that is appropriate and just, must be adapted to the circumstances that prevail at the time when the matter is adjudicated. The remedy will vary according to whether or not the breach continues. Reference Forum des maires de la Peninsule acadienne v. Canada (Food Inspection Agency), 2004 FCA 263 at paras and 31; see also Knopfv. Canada (House of Commons), 2006 FC 808 at pars The Federal Court of Appeal has applied a similar analysis in respect of other applications pursuant to federal statutes that are, in fact, a "proceeding de novo akin to an action." In Englander v Telus Communications Inc., the Court of Appeal considered applications pursuant to sections 14 and 15 of the Personal Information and Protection of Electronic Documents Act ("PIPEDA"): [48] As found in Forum des maires, therefore, the hearing under subsection 14(1) of the Act is a proceeding de novo akin to an action and the report of the Commissioner, if put in evidence, maybe challenged or contradicted like any other document adduced in evidence. I may add a further argument in support of this finding: according to section 15 of the Act, the Commissioner may appear as a "party" at the hearing. To show deference to the Commissioner's report would give a head start to the Commissioner when acting as a party and thus could compromise the fairness of the hearing. The Official Languages Act contains a similar provision, subsection 77(1). Reference Englander v. Telus Communications Inc., 2004 FCA 387 at pars. 48; 19. Section 17(1) of PIPEDA provides, in a manner similar to the Act, and the OLA, that "an application made under section 14 or 15 [of PIPEDA] shall be heard and determined without delay and in a summary way unless the Court considers it inappropriate to do so." 20. The authority to strike the notice of application emanates directly from the Act. The applicant's resort to David Bull is, therefore, simply not applicable in this context. The

11 :, David Bull jurisprudence is specifically geared to judicial review applications. The proceeding herein is akin to an action and ought to be treated as such including proper scrutiny of pleadings which frame the issues and define relevance for the remainder of the case. Conclusion 21. The applicant brings this application under section 524(1)(b) of the Act, which places the burden on an applicant to show that there were irregularities, fraud, corrupt or illegal practices that affected the result of the election in the specific electoral district which is the subject of the application. 22. In this application, the applicant alleges no practice or occurrence that, if proven, affected the result of the election in the electoral district of Don Valley East. In fact, even though the applicant baldly asserts "suppression" of votes, the applicant's pleading discloses only one,person in that electoral district who intended to vote but did not the applicant herself. In addition, the applicant's reasons for not voting are ambiguous at best, and in any event, given that the margin of victory for the respondent was 870 votes, she fails to plead facts that could establish at least that the election result in Don Valley East was "affected." The applicant is thus unable to establish at least one of the critical elements required by section 524(1)(b), and cannot obtain a remedy pursuant to section 531(2). 23. As section 524 of the Act provides, in the absence of a circumstance where the elected candidate was not eligible to be a candidate, the only basis for the court to declare the election null and void is where a practice or occurrence affected the result

12 0 of the election in the specific electoral district identified. As section 522(1) makes clear, there is no basis otherwise to contest the election of a candidate. 24. In this application, as demonstrated on the face of the notice of application, the applicant has failed to allege facts which, if proven, could be the only basis by which the Court could declare the election in Don Valley East null and void. The notice of application is therefore fatally flawed and the applicant has no chance of succeeding in upsetting the election result in Don Valley East. 25. The application therefore can only be characterized as being frivolous and vexatious or not made in good faith. It must therefore be dismissed, in accordance with section 531(1) of the Act. ALL OF WHICH, IN CONJUNCTION WITH OUR PREVIOUS~Ia(RI/~~,PI~SUBMI,6SIONS, IS RESPECTFULLY SUBMITTED this 22nd day of June,~'0~2. CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Arthur Hamilton Tel: Fax: ahamilton@casselsbrock.com Theodore Frankel Tel: Fax: tfrankel@casselsbrock.com Lawyers for the Respondent, Joe Daniel

13 SCHEDULE B LIST OF SUPPLEMENTARY AUTHORITIES 1. Wrzesnewskyj vattorney General (Canada), 2012 ONSC Englander v Telus Communications Inc, 2003 FCA Forum des maires de la Peninsule acadienne v Canada (Food Inspection Agency), 2004 FCA Knopf v Canada (House of Commons), 2006 FC 808

14 LEEANNE BIELLI and ATTORNEY GENERAL OF CANADA, Applicant et al. Respondents Court File No. T FEDERA~COURT REPLY WRITTEN REPRESENTATIONS OF JOE DANIEL Cassels Brock &Blackwell ~~P 2100 Scotia Plaza 40 King Street West Toronto, Ontario M5H 3C2 Arthur Hamilton LSUC #: 39474W Tel: Fax: Theodore Frankel LSUC #: 49784Q Tel: Fax: Lawyers for the Respondent, Joe Daniel