Court jurisdiction and political parties: Beware of zombies | Heather MacIvor

Heather MacIvor

In early July, Brampton, Ont., Mayor Patrick Brown was disqualified as a candidate to lead the Conservative Party of Canada (CPC) for alleged violations of the Canada Elections Act (CEA) and the party’s internal rules. Brown is now seeking re-election in Brampton but has said that he is “still pursuing legal options” against the CPC. Do those “legal options” include judicial review, damages or injunctive relief?

There is recent precedent for such a case. In 2017, the Ontario Divisional Court heard an application for judicial review by Brian Graff, challenging the rejection of his candidacy for the leadership of the federal New Democratic Party (NDP). In 2020 the Ontario Superior Court of Justice quashed the disqualification of CPC leadership candidate Jim Karahalios on procedural grounds. In March 2021 the same court reversed a decision to disqualify the CPC National Council candidacy of Ghada Melek. And in December 2021 the Manitoba Court of Queen’s Bench heard an application by defeated candidate Shelley Glover to set aside the result of the Manitoba Progressive Conservative (PC) leadership vote.

All four legal challenges ultimately failed: Glover’s and Graff’s applications were dismissed, Karahalios was quickly redisqualified in accordance with party rules, and Melek was defeated. More fundamentally, the Manitoba and Ontario courts likely erred by assuming jurisdiction in the first place. There is no common law basis, either public or private, for judicial intervention in the internal affairs of political parties. There is some statutory jurisdiction; for example, the CEA regulates the financing of nomination and leadership contests. But at present, the “legal options” available to a disqualified leadership candidate do not include an action against the party or an application for judicial review.

In Graff v. New Democratic Party, 2017 ONSC 3578, Justice Ian Nordheimer (as he then was) assumed jurisdiction on public law grounds. He rejected the NDP’s self-description as “simply a private voluntary association of individuals,” holding (at para. 16) that “The voting public … 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.” This public “interest” justified judicial involvement in disputes between parties and their leadership candidates.

Shortly afterward, a Divisional Court panel expressly repudiated Graff. In Trost v. Conservative Party of Canada, 2018 ONSC 2733, a dispute between the party and a former leadership candidate, the court disclaimed jurisdiction and dismissed the application. In so doing, the panel affirmed the traditional status of political parties as private voluntary associations whose internal decisions are exempt from judicial review.

A few weeks later, a unanimous Supreme Court of Canada declared that “Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character.” (Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 at para. 14.) The court expressly disapproved Graff and similar cases where the “public importance” of a decision was found to confer jurisdiction, emphasizing (at paras. 19-20) that judicial review is confined to “the legality of state decision making.”

As for private law remedies, Highwood also rejected the notion of a “free standing right to procedural fairness with respect to decisions taken by voluntary associations” (para. 18). Justice Malcolm Rowe declared (at para. 24) that courts can only assume jurisdiction over such decisions in “the presence of a legal right which a party seeks to have vindicated.” Where the claimed right is contractual, the party seeking a remedy must prove “an intention to form contractual relations” (para. 29). There was no evidence of a contract in Highwood, and the claim was dismissed.

In early 2020, in a case similar to Highwood, the Ontario Court of Appeal reached a different conclusion. The motion judge had found no evidence of a contract between the Ethiopian Orthodox Church and five former members who had been expelled for unspecified “heresy” (Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2019 ONSC 7600). Relying on Highwood, she dismissed the claim for lack of jurisdiction.

The Court of Appeal reversed (Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10 (Aga OCA). The panel did not address the Highwood requirement of intention to create contractual relations; it simply declared (at para. 40) that the written constitution and bylaws of a voluntary organization automatically “constitute a contract” between the organization and its members. To make matters worse, the panel erroneously cited the 2004 Court of Appeal ruling in Ahenakew v. MacKay (71 O.R. (3d) 130) for the proposition that “voluntary associations are ‘a complex of contracts between each and every other member.’” The actual holding in Ahenakew is the opposite: the common law fiction of the “web of contracts” has been obviated by the statutory recognition of political parties (among other private associations) as legal entities (e.g., s. 504(a) of the CEA). There is nothing in Ahenakew to suggest that mere membership in a private association establishes an enforceable contract.

The Supreme Court unanimously reversed Aga OCA and restored the decision of the motion judge (2021 SCC 22). Justice Rowe reiterated his holding in Highwood that the courts lack jurisdiction over the affairs of private associations absent objective proof of the parties’ intent to create binding and justiciable legal relations. Justice Rowe also pointed out the error in the Court of Appeal’s treatment of Ahenakew.  

By the time Aga OCA was overturned, the Superior Court had relied on it to assume jurisdiction in two cases involving the CPC. In Karahalios v. Conservative Party of Canada, 2020 ONSC 3145 (at para. 180), Justice Paul Perell held that the CPC Constitution and Rules formed a binding contract between the party and its members, and that the party itself was a “web of contracts.” He did not address the intent to create contractual relations, as required by Highwood, perhaps because Aga OCA seemed to render it unnecessary. Justice Edward Belobaba’s subsequent assumption of jurisdiction in Melek v. Conservative Party of Canada, 2021 ONSC 1959 relied on both Aga OCA and Karahalios. Melek was issued two months before the Supreme Court kicked the jurisprudential props out from under the Court of Appeal ruling — and, by extension, Karahalios.

So, Karahalios is no longer good law, and it is now settled that there is no enforceable contract between Patrick Brown and the CPC. Right?

Wrong. Karahalios has become a jurisprudential zombie, rising from its grave to wreak legal mischief. The Manitoba Court of Queen’s Bench relied on Karahalios to assume jurisdiction in Glover v. Progressive Conservative Party of Manitoba, 2021 MBQB 246 case in November 2021, almost six months to the day after the Supreme Court effectively laid it to rest. The court referred (at para. 16) to “[Glover’s] contractual right to an election conducted in accordance with the Rules and Procedures and the [Party] Constitution.” On that basis, it agreed to hear her application for relief against alleged procedural irregularities in the counting of leadership ballots.

In February 2022 the B.C. Supreme Court relied on Karahalios to find that “the Constitution, and the Leadership Rules” of the provincial Liberal Party “are contractual in nature,” and to assert “jurisdiction to intervene in the affairs of the Party” on that basis. (Bajwa v. BC Liberal Party, 2022 BCSC 194 at para. 44) As in Glover, there was no consideration of the parties’ intention to create contractual relations (or lack thereof). The zombie struck again.

If Patrick Brown sought a judicial remedy for his disqualification, and the court applied Highwood and Aga OCA rather than Karahalios, it would almost certainly decline jurisdiction. The current leadership contest rules provide (at para. 7.1.5) that the decision to disqualify a candidate is final and binding, and “not subject to internal appeal or judicial review.” In Karahalios, Justice Perell wrote (at para. 191) that giving effect to a similar provision would “lead to the absurd conclusion that unincorporated associations governed by contract are beyond the rule of law.” With respect, this dictum assumes what must be proved: that the relationship between a political party and its leadership candidates is “governed by contract.”

The material point, in light of the current law, is that the language of the Rules belies any suggestion that the CPC intended to assume judicially enforceable obligations toward its leadership contestants. One hopes that Brown’s lawyers have recognized that Karahalios is defunct, and advised him accordingly.

Heather MacIvor is a content development associate at LexisNexis Canada. She is co-author, with the Honourable Stephen Goudge, of Halsbury’s Laws of Canada — Public Inquiries (2019) and Commissions of Inquiry (2019).

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437- 828-6772.