Court of Appeal Decision of the Week

What’s a “Mere Guideline”, & What’s the “Law”

Case: Anglin v Chief Electoral Officer, 2018 ABCA 296 (CanLII)

Keywords: Campaign Advertising; Election Act, RSA 2000, c E-1.

Synopsis:

Former MLA Joe Anglin alleges he is singled out and unfairly treated by Alberta’s Chief Electoral Officer after receiving a $250 fine. Mr. Anglin is fined because the size and contents of his election signs and advertising do not comply with Guidelines established under the Election Act, RSA 2000, c E-1.

On Appeal, Mr. Anglin maintains that the Guidelines, which are established by the Chief Electoral Officer, do not constitute law and that a breach of the Guidelines is not a contravention of the Election Act. The Court of Appeal disagrees.

Importance:

Without referring to any specific cases, the Alberta Court of Appeal noted as follows with respect to the appropriate standard of review applicable to the decision of the Chief Electoral Officer:

There is a strong trend in Supreme Court of Canada jurisprudence toward deference in reviewing the decisions of administrative bodies. This case involves an officer interpreting his home statute, indeed his own Guidelines, and the standard of review is presumptively deferential. (See para. 5).

The Court of Appeal anticipates a future debate with respect to the reviewability of so-called “jurisdictional questions” in a trilogy of cases at the Supreme Court of Canada in the coming months (see at para. 6): Bell Canada, et al v Attorney General of Canada; National Football League, et al v Attorney General of Canada; and Minister of Citizenship and Immigration v Vavilov. For more information about these or any other upcoming cases, consult the Supreme Advocacy LLP Newsletter: https://supremeadvocacy.ca/newsletter/.

For the Court of Appeal, the Election Act compels compliance with the provisions of s. 134(2), which provides that candidate advertisements comply with requirements “in accordance with the guidelines of the Chief Electoral Officer”:

The language of the Act is clear. The Act expressly requires that candidates must act “in accordance with the guidelines” with respect to advertisements. The Act compels compliance with the provisions of s 134(2) in accordance with the Guidelines; the Guidelines form part of the requirements set out in the section. The legislature has the authority to establish this regulatory scheme, which includes Guidelines that must be considered and complied with.  It also has the power to delegate and the guidelines, like other forms of subordinate or delegated legislation are all forms of law. See Ruth Sullivan, Statutory Interpretation, 3rd ed (Toronto: Irwin Law, 2016) at 14.

The Guidelines are statutorily required and the Chief Electoral Officer is specifically authorized and required to make them. The delegation of the authority to establish Guidelines by the Legislature to the Chief Electoral Officer is incidental to legislative sovereignty. The requirement that advertisements contain certain information in a legible form is within that delegation of authority. The Act also provides for a mechanism of enforcement; s 153.1(1) of the Act grants the Chief Executive Officer power to impose a reprimand or an administrative penalty. (See paras. 9, 10).

As such, the Court of Appeal determined that general principles of statutory interpretation cannot sustain the argument that Guidelines established by the Chief Electoral Officer are “merely guidelines” – which is to say, unenforceable under the Act. (See paras. 7-11).

Counsel for the Appellant: Donald Bur

Counsel for the Respondent: William Shores & Andrea Simmonds (Shores Jardine LLP, Edmonton)

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Posted: Tuesday, September 25, 2018