COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Independent Contractors and Businesses Association v. British Columbia, |
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2018 BCCA 429 |
Date: 20181102
Docket: CA45572
Between:
Independent Contractors and Businesses Association,
Canada West Construction Union, and Kenneth Baerg
Appellants
(Petitioners)
And
Lieutenant Governor in Council of the Province of
British Columbia and Attorney General of British Columbia
Respondents
(Respondents)
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Before: |
The Honourable Mr. Justice Fitch (In Chambers) |
On appeal from: An
order of the Supreme Court of British Columbia, dated
August 28, 2018 (Independent Contractors and Businesses Association v.
British Columbia, 2018 BCSC 1597, Vancouver Docket S187284).
Oral Reasons for Judgment
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Counsel for the Appellants: |
A. Tomkins |
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Counsel for the Respondents |
S.A. Bevan K.A. Wolfe |
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Counsel for the Proposed Intervenor, BC Government and Services Employees’ Union: |
J. Mistry S. Sandhu, Articled Student |
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Counsel for the Chief Electoral Officer of British Columbia (attended, but did not make submissions): |
J.D. Waddell, Q.C. |
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Place and Date of Hearing: |
Vancouver, British Columbia October 29, 2018 |
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Place and Date of Judgment: |
Vancouver, British Columbia November 2, 2018 |
Summary:
The applicants sought leave to appeal an order dismissing their application for an interlocutory injunction to suspend regulatory restrictions on advertising in advance of a provincial referendum on Proportional Representation, and to prohibit the Chief Electoral Officer from counting and announcing the results of the vote. Held: Leave to appeal denied. The outcome of the application turned on the chambers judge’s assessment of the balance of convenience at the third stage of the RJR-MacDonald framework. The determination of this issue involved an exercise of discretion that would attract a highly deferential standard of appellate review. Leave to appeal is rarely granted in these circumstances and the applicants failed to show that the proposed appeal raised an arguable ground meriting the attention of this Court. The memorandum of argument filed by the BCGEU on the application for leave to appeal was struck. No application for leave to intervene had been made by the BCGEU in this Court, and Rule 36 of the Court of Appeal Rules contemplates an application for leave to intervene on an appeal, not on an application for leave to appeal.
[1] FITCH J.A.: The applicants, petitioners in the court below, seek leave to appeal an order made by a Supreme Court judge on August 28, 2018, dismissing their application for an interlocutory injunction. The relief sought was an order: (1) suspending regulatory restrictions on advertising in advance of the upcoming referendum on the voting system British Columbia should use for provincial elections; and (2) prohibiting the Chief Electoral Officer from counting the referendum vote and reporting on the results of the vote to the Speaker of the Legislative Assembly.
[2] It is common ground that the order sought to be appealed was made pursuant to Rule 10-4 of the Supreme Court Civil Rules, B.C. Reg. 168/2009. It is, therefore, a limited appeal order requiring leave to appeal by virtue of s. 7(2) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, and Rule 2.1 of the Court of Appeal Rules, B.C. Reg. 297/2001. The application for leave to appeal is opposed by the provincial respondents (hereinafter the “AGBC”).
[3] I will address, at the outset, some procedural irregularities that have arisen in relation to this application.
[4] First, for reasons that are unclear to me, the Chief Electoral Officer was not named as a respondent on the underlying petition even though the remedy the applicants seek would necessarily restrain him from performing his statutory duties. Special counsel for the Chief Electoral Officer attended the injunction hearing and this leave application but did not seek to make submissions. The chambers judge was alert to this problem but proceeded to hear and resolve the injunction application. The parties recognize the oversight but take the position that I should, nevertheless, resolve the leave application on its merits and I have determined to do so.
[5] Second, the order from which leave to appeal is sought has not been entered. I raised this as a concern with counsel on the hearing of the leave application and was advised this morning that, despite the efforts of counsel, the order remains unentered. In the unique circumstances of this case, I have determined to proceed to give judgment on the application with the expectation that the order (which is uncontroversial in its terms) will be entered very shortly.
[6] Third, the BC Government and Service Employees’ Union (the “BCGEU”) appeared on this application, purportedly as an intervenor. As I understand it, the BCGEU was granted leave to intervene on the petition in the court below following resolution of the interim injunction application. The BCGEU filed a notice of appearance and a memorandum of argument in this Court opposing the application for leave to appeal and seeking an order for costs in the event the application is dismissed. At the outset of the hearing, I questioned the basis upon which the BCGEU could participate in this application. They had not made an application for leave to intervene pursuant to Rule 36 of the Court of Appeal Rules, and it appears well-established that a party granted leave to intervene in the court below is not automatically entitled to intervenor status in this Court: see Ross River Dena Council v. Government of Yukon, 2012 YKCA 14 at paras. 8-15. Rather, they must apply to this Court for leave to intervene.
[7] In response to this concern, the BCGEU applied, on short notice, for an order pursuant to Rule 36 for leave to intervene on this application. The difficulty is that Rule 36 provides that “[a]ny person interested in an appeal may apply to a justice for leave to intervene …” (emphasis added). There is no appeal in this matter unless leave is granted. The language of the rule does not appear to contemplate the making of an application for leave to intervene before leave has been granted. In light of this additional difficulty, counsel for the BCGEU withdrew its intervention application but sought to adopt and rely on the written submissions of the AGBC. As the BCGEU has no participatory rights in relation to this application, it has no right to make submissions either directly or by adopting the position advanced by another party. In these circumstances, I declined to hear from counsel for the BCGEU and struck its memorandum of argument.
[8] The background giving rise to this matter and the well-known test generally applied on interim injunction applications were conveniently summarized by the chambers judge in her Reasons for Judgment [RFJ] which are indexed as 2018 BCSC 1597:
[1] A referendum vote will be conducted in British Columbia between October 22 and November 30, 2018. Voters will be asked to answer two questions:
1. Which system should British Columbia use for provincial elections? (Vote for only one.)
(a) The current First Past the Post voting system
(b) A proportional representation voting system
2. If British Columbia adopts a proportional representation voting system, which of the following systems do you prefer? (Rank in order of preference. You may choose to support one, two or all three of the systems.)
(a) Dual Member Proportional (DMP)
(b) Mixed Member Proportional (MMP)
(c) Rural-Urban Proportional (RUP)
[2] If more than 50 percent of the validly cast votes are in favour of the proportional representation voting system in British Columbia, the government is bound to take steps to implement a system of proportional representation.
[3] If more than 50 percent of validly cast votes in answer to the second question favour the same system of proportional representation, then the government is bound to take steps to implement that specific proportional representation voting system.
[4] The petitioners assert that the manner by which the provincial respondents intend to proceed is inconsistent with the rule of law and with fundamental constitutional rights and values.
[5] They say the government is seeking to implement a fundamental constitutional change through a rushed and confusing referendum process that is unable to effectively ascertain whether a majority of British Columbians are in favour of replacing the present electoral system with a new proportional representation system.
[6] They also assert that the manner by which the referendum is being conducted imposes significant limitations on the rights of British Columbians under the Charter of Rights and Freedoms [Charter].
[7] The petitioners seek an interlocutory injunction against the Provincial respondents to:
1. suspend the operation of all regulatory restrictions on referendum advertising; and
2. prohibit the Chief Electoral Officer from carrying out his legislative duties to count the referendum vote and report on the results to the Speaker of the Legislative Assembly and to the electorate.
[8] Notably, the petitioners are not seeking that the referendum not be held.
[9] As the applicants for an interim injunction, the onus is on the petitioners to satisfy the three-part test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 [RJR-MacDonald] in order for the injunction to be granted. The test is:
1. there is a fair issue or serious question to be tried;
2. the applicant will suffer irreparable harm if relief is not granted; and
3. the balance of convenience favours the granting of the relief sought.
The Parties
[10] The petitioners are private litigants who assert their discrete and distinct interests. They do not have public interest standing.
[11] The petitioners are two groups and one individual who oppose proportional representation. The Independent Contractors and Businesses Association (ICBA) is a voluntary association of construction businesses in British Columbia who advocate for free enterprise and an open-shop construction industry. The Canada West Construction Union (CWCU) describes itself as an independent union. Kenneth Baerg is the Director of Labour Relations with CWCU.
[12] The petitioners say that their opposition to proportional representation is premised on their belief that business in British Columbia is better served by having a stable majority government, which they say results from the first-past-the-post electoral system. This is the system that is currently in effect.
[13] The ICBA says that it wishes to engage in a $2.6 million advertising campaign during the referendum voting period. Mr. Baerg proposes that he would like to engage in advertising, but is dissuaded from participating because of the cost and complexity of registering as an advertising sponsor with the Chief Electoral Officer.
[14] The provincial respondents are also referred to as the government or the Legislature in these reasons.
[15] The Chief Electoral Officer is not a party to these proceedings. The Chief Electoral Officer is an independent officer of the Legislature responsible for administering electoral processes in British Columbia. The Chief Electoral Officer and his office, Elections BC, are separate from any Ministry of the Provincial Crown. Neither the Chief Electoral Officer nor his office are named in the petition, although the petitioners and the provincial respondents consider that they ought to have been, as part of the relief sought in this injunction is to restrain the Chief Electoral Officer from his functions under the impugned legislation.
[16] Counsel for the Chief Electoral Officer attended the injunction hearing, but did not make any submissions on behalf of the Chief Electoral Officer.
[Emphasis added.]
[9] The referendum is to be conducted pursuant to the Electoral Reform Referendum 2018 Act, S.B.C. 2017, c. 22 [Act] which came into force on November 30, 2017. Section 2(1) of the Act requires a provincial referendum to be held on the subject of Proportional Representation. The outcome of the referendum will determine whether British Columbia should retain its First Past the Post system for electing members of the Legislative Assembly or adopt a Proportional Representation voting system.
[10] Section 9(1) of the Act provides that the outcome of the referendum is binding on the government if more than 50 percent of validly cast ballots vote in the same way on a question stated, if the question has the option of two answers; or are in favour of the same voting system, if the question has the option of more than two answers. Section 9(2) of the Act provides that if the result of the referendum favours adoption of a system of Proportional Representation and the vote is binding on the government, the government must take the steps it considers necessary to implement the result of the referendum, including introducing the legislation necessary to implement a new voting system, in time for the next provincial election.
[11] Section 23(2) of the Constitution Act, R.S.B.C. 1996, c. 66, as amended, requires the next general election in British Columbia to be held on October 16, 2021, subject to the possibility that an earlier general election might be called as a result of the Lieutenant Governor’s exercise of her power to dissolve the Legislative Assembly.
[12] The introduction of the Act followed a process of public engagement undertaken by the Attorney General between November 23, 2017 and February 28, 2018. The chambers judge summarized input received through the public engagement process and the subsequent recommendations of the Attorney General in these terms:
[26] On May 30, 2018, the Attorney General published a report on the outcome of that engagement process entitled How We Vote: 2018 Electoral Reform Referendum Report and Recommendations of the Attorney General (How We Vote report).
[27] In the How We Vote report, the Attorney General made a number of recommendations about the process for the referendum, including the wording of the referendum ballot questions, the voting systems to be included on the referendum ballot, the campaign process, and the process for post-referendum deliberation and implementation.
[28] Regarding the referendum campaign process, the Attorney General recommended that the Chief Electoral Officer be responsible for providing neutral and factual information to voters about the referendum, including informing voters about the voting systems that appear on the referendum ballot.
[29] Feedback from the public engagement process favoured the provision of public funding for comprehensive neutral public education on the referendum.
[30] The predominant view of the public expressed through the public engagement process was that the campaign advertising and finance rules from the Election Act, R.S.B.C. 1996, c. 106 [Election Act] should apply to the referendum campaign. This included contribution limits; restrictions on third party advertising; and registration, attribution and disclosure requirements for third party advertising sponsors.
[31] The Attorney General recommended that referendum advertising sponsors be regulated in a manner similar to election advertising sponsors under Part 10 and 11 of the Election Act.
[32] The Attorney General also recommended that public funding be provided to a designated group advocating retention of the first-past-the-post voting system and to a designated group advocating a switch to proportional representation in the amount of $500,000 each, with both groups to be selected by the Chief Electoral Officer.
[33] In the section of the How We Vote report addressing matters for the post- referendum decision, the Attorney General recommended that the post-referendum design and implementation details be decided through a multi-party process. An all-party committee of the Legislative Assembly would receive input from independent experts, election administrators, and the public on the remaining design details of the voting system to be adopted and to issue a report with recommendations.
[34] On June 7, 2018, Premier Horgan announced that Cabinet had accepted all of the Attorney General's recommendations. On the invitation from the Premier, the Chief Electoral Officer subsequently provided input on the simplicity and clarity of the referendum ballot questions, which included suggestions for minor revisions.
[13] The Electoral Reform Referendum 2018 Regulation, B.C. Reg. 125/2018 [Regulation] was approved on June 22, 2018. The questions to be placed on the referendum ballot are set out in Part 2 of the Regulation in s. 5. They reflect the revisions suggested by the Chief Electoral Officer.
[14] Part 4 of the Regulation sets out a process for selection of the opponent and proponent groups. Section 30 authorizes the Chief Electoral Officer to pay each group a total of $500,000 to be used for defined purposes, including to sponsor referendum advertising opposing or supporting Proportional Representation.
[15] Parts 5 and 6 regulate “referendum advertising sponsors” – defined in s. 1 to mean “an individual or organization, other than the opponent group or the proponent group, that sponsors referendum advertising” – through the adoption, with some modification, of the provisions of the Election Act, R.S.B.C. 1996, c. 106. Section 49 of the Regulation provides as follows:
Referendum advertising limit
49 In relation to the referendum, a referendum advertising sponsor must not sponsor, directly or indirectly, referendum advertising during the referendum campaign period
(a) such that the total value of the referendum advertising is greater than $200 000 overall, or
(b) in combination with one or more referendum advertising sponsors such that the total value of that referendum advertising is greater than $200 000.
[16] The distribution of voting packages must commence no later than October 22, 2018. Voting on the referendum closes on November 30, 2018. The counting of the ballots is to be carried out by the Chief Electoral Officer, and individuals he appoints to act as referendum officials, between November 30, 2018 and mid-December 2018, when the results of the referendum will be announced.
[17] If the result of the referendum supports a change to a Proportional Representation voting system, the post-referendum steps recommended by the Attorney General and adopted by government include: the constitution of an all-party committee of the Legislative Assembly to consider and make recommendations on any remaining matter necessary for the design and implementation of the voting system; the appointment of an Electoral Boundaries Commission tasked with making proposals to the Legislative Assembly on required changes to the number, area, boundaries, and names of the electoral districts of British Columbia consequent upon adoption of a Proportional Representation voting system; the enactment of a new Electoral Districts Act; S.B.C. 2015, c. 39 and the implementation of a new voting system by Elections BC. Each of these steps is subject to a tight timeline. In his affidavit filed by the AGBC for use on the petitioner’s interim injunction application, Neil Reimer, Director of Policy and Legislation for the Ministry of Attorney General of British Columbia, deposes that “any delay in the completion of the referendum creates a risk with respect to the implementation of a new voting system in sufficient time for a general election … that takes place on October 16, 2021”.
[18] The applicants reiterated in their memorandum of argument (but did not press in oral submissions before me) a claim made in the court below that the AGBC is responsible for the delay in the hearing of their petition. I would simply note that the chambers judge found no evidence to support the assertion that the respondents have delayed the hearing of this petition: RFJ at para. 122. To the extent that the point might conceivably be relevant to an assessment of the interests of justice on this application, I say only that nothing before me casts doubt on the conclusion of the chambers judge on this point.
[19] In their petition, the applicants challenge the referendum questions on the ballots and the third party advertising restrictions reflected in the Regulation. They argue that the questions on the ballot are unclear and inconsistent with both the Act and unwritten constitutional principles because they are incapable of determining whether a majority of voters are in favour of a fundamental change to the electoral system.
[20] In addition, the applicants challenge the provisions of the Regulation which impose monetary restrictions on referendum advertising and require advertisers to register and comply with reporting, auditing and banking requirements. They argue that these provisions violate their right to freedom of expression and association guaranteed by ss. 2(b) and (d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. They also say that the Regulation violates the right to vote in an election of members of the House of Commons or of a legislative assembly guaranteed by s. 3 of the Charter and that the option of Rural-Urban Proportional Representation, if adopted, would violate both ss. 3 and 15 (the equality guarantee).
[21] The petition is scheduled to be heard January 21-25, 2019, after voting on the referendum is closed and the results of the vote are scheduled to have been announced.
[22] In applying the three-part test for granting injunctive relief from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 [RJR-MacDonald], the chambers judge was satisfied that the applicants had met the low threshold of showing that there was a serious issue to be tried: RFJ at para. 81.
[23] Citing RJR-MacDonald at 341, the judge held that at the second stage of the test (irreparable harm) the court must decide whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits did not accord with the result of the interlocutory application. She noted the observation in RJR-MacDonald that the assessment of irreparable harm on interlocutory injunction applications involving Charter rights will often be more difficult than a comparable assessment in a private law application: RFJ at para. 83. This is because, while the notion of irreparable harm is closely tied to the remedy of damages, damages are not the primary remedy in Charter cases (and are not being sought by the applicants in this case).
[24] She noted the applicants’ argument that they will not be able to meaningfully participate in the referendum process because the impugned provisions restrict them from fully expressing themselves on the referendum or associating for that purpose. She noted the applicants’ position that these harms are irreversible and cannot be compensated in damages. She also noted the applicants’ position that if they are ultimately successful in their challenge to the legislation, the referendum will have been tainted by unconstitutional restrictions on freedom of expression and association. In addition, she noted the applicants’ argument that if the results of the referendum are announced before the outcome of the petition is known, and the petition succeeds, the public will be hopelessly divided over the legitimacy of the democratic process leading to the outcome of the referendum.
[25] The chambers judge also summarized the position advanced on behalf of the AGBC that the applicants will not suffer irreparable harm if the injunction is not granted. Counsel for the AGBC pointed out that ordinary British Colombians are able to express themselves on matters pertaining to the referendum without having to register as a sponsor with the Chief Electoral Officer. Further, there will be publicly funded proponent and opponent groups, each of which may spend up to $500,000 in public money on advertising. In addition, each third party advertising sponsor is able to spend up to $200,000 to advertise in support of its perspective on the issue in advance of the vote. In response to the applicants’ argument that counting the votes and reporting on the result will undermine the legitimacy of the electoral system and public confidence in the democratic processes of government if the referendum is later found to be unconstitutional, the AGBC argued that this “harm” was speculative and did not constitute irreparable harm.
[26] On the issue of advertising restrictions, the judge was not persuaded that the applicants would suffer irreparable harm unless the interlocutory injunction was granted. She emphasized, in this regard, the point made in RJR-MacDonald that “irreparable” refers to the nature of the harm suffered rather than its magnitude. She said this:
[89] The petitioners are not silenced by the restrictions imposed by the Regulation. Their argument is that advertising restrictions prevent them from meaningfully participating in the process. Their members are entitled to engage in the process, as any individual British Columbian can. The petitioners themselves are able to participate and are entitled to advertise up to the spending limit. What the petitioners seek in this injunction is an order preventing the imposition of any limits whatsoever.
[90] They have not persuaded me that unless this is granted they will suffer irreparable harm. I reiterate what is stated in [RJR-MacDonald]: irreparable refers to the nature of the harm suffered, rather than the magnitude. The petitioners concentrate on the magnitude of the harm they will suffer, expressing it as the difference between participation and meaningful participation.
[91] I have no basis upon which to conclude that what the petitioners propose to do without the restrictions imposed will be more meaningful. It is a quantitative analysis. It will be more meaningful, in the petitioners' opinion, but I cannot find that as irreparable harm.
The judge was not prepared to “assume that the … voting will be constitutionally tarnished or that this represents irreparable harm”: RFJ at para. 94.
[27] With respect to the applicants’ contention that announcing the outcome of the referendum before the petition is decided would lead to irreparable harm, the chambers judge characterized the argument as “hypothetical”. She noted that if the applicants are ultimately successful in the petition and the legislation (or aspects of it) is struck down, the AGBC has options, including implementing another vote if the government wishes to proceed: RFJ at para. 93.
[28] As the chambers judge noted, the third part of the RJR-MacDonald test (the balance of convenience stage) requires a determination of which of the two parties will suffer greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. She took account of the comments in RJR-MacDonald at 342 that in light of the relatively low threshold of the first part of the test, and the difficulties applying the irreparable harm part of the test in Charter cases, many interlocutory applications of this kind will be determined at this stage: RFJ at para. 95.
[29] She noted that in constitutional cases, the public interest factor weighs heavily in this assessment. She also noted that the public interest weighs more heavily in “suspension cases” where the applicant seeks to suspend the effect of broadly applicable legislative measures than in “exemption cases” where a limited number of applicants seek to be exempted from the law: RFJ at para. 99. Relying on RJR-MacDonald and Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 [Metropolitan Stores] she noted that “special considerations” arise at the balance of convenience stage where the injunction would suspend the operation of duly enacted legislation that must be assumed to advance the public good: RFJ at para. 96. She further noted that where a private litigant alleges that the public interest is at risk from the enforcement of legislation, rather than benefitting from it, such harm is not assumed and must be proven: RFJ at para. 100. Consistent with the holding in Harper v. Canada (Attorney General), 2000 SCC 57 at para. 9 [Harper], she concluded that in suspension cases, interlocutory injunctions against the enforcement of the law on the grounds of alleged unconstitutionality will only be issued in exceptional circumstances: RFJ at para. 99.
[30] The chambers judge determined that suspending regulatory restrictions on referendum advertising in this case would tip the balance entirely in favour of the applicants. She said this:
[118] The petitioners are seeking an interim injunction that will provide them with the benefits of a successful result of their petition for alleged breaches of the Constitution Act, before the court has an opportunity to consider the case on the merits. Although the petitioners maintain that they have a very strong case, I have only concluded that it is not frivolous or vexatious and meets the low threshold required.
...
[121] The petitioners suggest that allowing them to advertise to the extent they consider meaningful, and enjoining the Chief Electoral Officer from counting and announcing the result of the votes until their petition is heard, better addresses the public interest.
...
[123] In constitutional litigation, as was noted by McLachlin C.J.C in Harper v. Canada (Attorney General), 2000 SCC 57 at para. 9:
...only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.
[124] In relation to the petitioners' argument regarding freedom of expression, the Chief Justice also said at para. 11:
...the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the applicant Harper even though the trial has not been completed. Moreover, applying [RJR-MacDonald], we must take as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose. Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, we conclude that the balance of convenience favours staying the injunction granted by the trial judge.
[125] In spite of their increased obligation due to their Charter arguments to demonstrate that the public interest is in the enforcement of legislation enacted or regulatory action taken is for the broader public benefit, I find the petitioners have not done so. They have equated their private interests with that of the public without proof. As noted in [RJR-MacDonald], private litigants are normally presumed to be pursuing their own interests, rather than those of the public at large.
[126] The petitioners have not overcome that presumption. They merely state it to be so. The petitioners offer their own view of the timeline of the process that is underway and suggest that it could be moved to accommodate engaging in unrestricted advertising now, before the vote is taken.
...
[130] I find that the suspension of regulatory restrictions on referendum advertising is not supported. It does not balance the convenience. It tips it entirely in favour of the petitioners. Presumably, the petitioners are of the view that, with their extensive advertising against proportional representation, that will affect the outcome of the vote, such that it will favour no change from the first-past-the-post system. This explains why they are not seeking the referendum vote itself not be cancelled.
[131] Granting the remedies sought and allowing unrestricted third party advertising will determine that the petitioners, without having their petition heard and decided, will enjoy the fruits of potential success before the court has had an opportunity to adjudicate the matter.
...
[134] The petitioners also seek to restrict the Chief Electoral Officer, who has not been added as a respondent to this petition or to this application for an injunction, although the petitioners did allow that the Chief Electoral Officer should be a party. I am not granting this order either.
[135] I am not convinced that the balance of convenience favours an issuance of the interlocutory injunction in the form that the petitioners seek.
[31] The test for determining whether leave to appeal should be granted was set out in Goldman, Sachs & Co. v. Sessions, 2000 BCCA 326 (Saunders J.A. in Chambers) [Goldman, Sachs & Co.]:
[10] The criteria for leave to appeal are well known. As stated in Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (C.A.) they include:
(1) whether the point on appeal is of significance to the practice;
(2) whether the point raised is of significance to the action itself;
(3) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and
(4) whether the appeal will unduly hinder the progress of the action.
[32] The overarching concern is whether it is in the interests of justice to grant leave: Hanlon v. Nanaimo (Regional District), 2007 BCCA 538 at para. 2 (Saunders J.A. in Chambers).
[33] The party seeking leave to appeal bears the onus of showing that the requirements for leave have been met: British Columbia Teachers’ Federation v. British Columbia (Attorney General) (1986), 4 B.C.L.R. (2d) 8 at 11 (McLachlin J.A. in C.A. Chambers).
[34] The merits threshold on an application for leave to appeal is relatively low: Bartram v. Glaxosmithkline Inc., 2011 BCCA 539 at para. 16 (Prowse J.A. in Chambers). The test is whether the applicant has an arguable case of sufficient merit to warrant scrutiny by a division of this Court: A.L.J. v. S.J.M. (1994), 46 B.C.A.C. 158 at para. 10 (Hinds J.A. in Chambers).
[35] Leave to appeal from a discretionary order will only be granted where the order is clearly wrong, a serious injustice will occur, or the discretion was not exercised judicially or was exercised on a wrong principle: Strata Plan LMS 1212 v. Coquitlam (City), 2004 BCCA 500 at para. 2 (K. Smith J.A. in Chambers); Strata Plan LMS 2019 v. Green, 2001 BCCA 286 at para. 6 (Proudfoot J.A. in Chambers); Rand v. The Anglican Synod of the Diocese of British Columbia, 2008 BCCA 294 at para. 4 (Rowles J.A. in Chambers); First Majestic Silver Corp. v. Davila, 2014 BCCA 11 at para. 25 (Neilson J.A. in Chambers).
[36] As Hinkson J.A. (as he then was) stated in Hagwilneghl v. Canadian Forest Products Ltd., 2011 BCCA 478 (in Chambers):
[31] Whether or not to grant or refuse injunctive relief is a matter of discretion. Where an application for leave to appeal relates to a discretionary order, the applicable test on the merits is whether there is an arguable case that the Chambers Judge erred in principle, made an order that is not supported by the evidence, or whether the order appealed will result in an injustice.
[37] The applicants submit that the points sought to be advanced on appeal are of significance to the practice and the parties, that the appeal has strong prospects of success and that granting leave would not unduly hinder the progress of the action as the appeal could be dealt with before the petition is argued.
[38] With respect to the merits of the appeal and its significance to the practice, the applicants submit that the judge made errors in principle in her understanding and application of the irreparable harm stage of the RJR-MacDonald test and that these errors tainted her assessment of the balance of convenience. The applicants therefore submit: (1) that the proposed appeal involves questions of principle of broad importance to the development of the law concerning the application of the irreparable harm stage of the RJR-MacDonald test to Charter cases; and (2) that the question is of importance to the parties because it had a material bearing on the resolution of the interlocutory injunction application.
[39] The errors in principle that counsel for the applicants pressed in oral argument of the application for leave to appeal were not clearly addressed (and certainly not developed) in their memorandum of argument. As I understand the applicants’ position, they argue that the chambers judge erred in principle in her assessment of irreparable harm in two ways:
(1) With respect to the alleged breach of the applicants’ Charter rights to freedom of expression and association, by failing to presume that there was irreparable harm, given that a breach of those rights is incapable of being quantified or remedied by a damages award; and
(2) With respect to the alleged harm to public confidence in the democratic process and in the electoral system from announcing the results of a referendum that is subsequently found to have been unconstitutional, by:
a. conflating this type of harm with the harm flowing from the Charter breaches, and
b. failing to infer, or consider whether it was open to her to infer, that this type of harm would occur.
[40] On the first point, the applicants assert that irreparable harm was conceded by the AGBC before the chambers judge, a proposition strongly denied by counsel for the AGBC. In any event, the applicants assert that the presumption of irreparable harm in the context of Charter challenges to legislation is well-established in the jurisprudence. In support of their position, the applicants rely principally on RJR-MacDonald at 341-342 and Harper at para. 4. Briefly, Harper concerned an application for leave to appeal and an application to stay an interlocutory injunction restraining the enforcement of third party spending limits imposed by legislation in advance of the 2000 federal election. In addressing the application to stay the interim injunction order, the Court “assumed” that the legislative provisions in issue might occasion irreparable harm to the capacity of third parties to participate as they wished in the election campaign and moved directly to the balance of convenience stage of the RJR-MacDonald test. The applicants also rely on Ermineskin Cree Nation v. Canada, 1999 ABQB 791 at para. 32, where RJR-MacDonald was interpreted to stand for the proposition that where the alleged breach is a breach of a constitutional right, particularly a Charter right, the court may presume irreparable harm.
[41] On the second point, the applicant relies on Newbould v. Canada (Attorney General), 2017 FCA 106 at paras. 28-29 [Newbould] for the proposition that irreparable harm can be inferred from the whole of the circumstances. They say the chambers judge erred in principle by failing to infer, or consider whether she could infer, the existence of irreparable harm to the democratic process in this case. I note that Newbould involved reputational interests and circumstances that more readily permitted drawing an inference of irreparable harm. The AGBC says that it is factually distinguishable on that account.
[42] The AGBC submits that the chambers judge made no error in principle in her assessment of irreparable harm and, in any event, the irreparable harm analysis did not determine the result. The AGBC submits that neither RJR-MacDonald nor Harper stand for the broad proposition that irreparable harm must be presumed where a breach of Charter rights is alleged. The AGBC says the judge did not err by declining to infer irreparable harm to public confidence in the democratic process in the circumstances contemplated by the applicants, as the inference would have been speculative and unsupported by the evidence. The AGBC emphasizes that even if aspects of the referendum process are declared unconstitutional after it takes place, the matter of electoral reform will still be before a government committee and no irreversible steps towards implementation will have been taken. Therefore, there will be no irreparable harm on this account.
[43] In any event, the AGBC submits that the irreparable harm analysis did not determine the outcome. The decision to dismiss the interlocutory injunction application was a discretionary one based on a balancing of harms at the third stage of the RJR-MacDonald test. The AGBC says the applicants identify no error in principle in the judge’s approach to the balance of convenience, but merely seek to reargue on appeal her exercise of discretion. Given the deferential standard of review applicable to discretionary decisions, the AGBC submits that the proposed appeal is without merit. Furthermore, the AGBC notes that the judge’s decision is consistent with a well-established line of authority demonstrating that the courts have consistently refused to grant interlocutory injunctions in the context of challenges to election-related legislation, including challenges to advertising restrictions during an election period: Harper at paras. 5-11; Bob v. British Columbia, 2002 BCSC 733 at paras. 55-62 [Bob].
[44] The AGBC also emphasizes the impracticalities of the proposed appeal. It argues that, if leave is granted, the appeal could not be heard and resolved before November 30, 2018 – the date upon which the vote closes. In the result, an order granting leave would not assist the applicants insofar as their ability to engage in unrestricted advertising is concerned. In addition, the AGBC submits that, if leave is granted, the appeal could not realistically be resolved by mid-December when the results of the referendum are to be announced.
[45] The AGBC also submits that the practical effect of an order granting leave to appeal is that the timeline for the implementation of the post-referendum measures that must be taken if a Proportional Representation voting system is adopted would be thrown off to such an extent that those measures could not be completed before the general election on October 16, 2021. Finally, the AGBC submits that an appeal is likely to delay resolution of the petition in the court below.
[46] The parties spent a good deal of time emphasizing the merits of their respective positions on the interim injunction application. It is, of course, important now to assess the issues within the framework of the test applicable on leave applications.
[47] In this regard, I find it convenient in this case to address the first and third criteria together – whether the point on appeal is significant to the practice and the merits of the proposed appeal as that latter question has been framed in Goldman, Sachs & Co.
[48] I turn to the first error in principle alleged by the applicants: the failure of the chambers judge to presume irreparable harm from the alleged Charter breaches. As I do not have before me the record of the interim injunction application heard by the chambers judge, I am unable to resolve disagreements between the parties concerning the positions taken below. From the materials before me, it is far from clear that the AGBC conceded the existence of irreparable harm on the hearing of the application in the court below. Indeed, their application response takes direct aim at this issue. Obviously, the chambers judge did not consider the point to be conceded: RFJ at paras. 87-88.
[49] Further, it is not entirely clear whether or to what extent the applicants argued in the court below, as they did before me, that irreparable harm flowing from an alleged Charter breach must be presumed. In their notice of application before the chambers judge, they argued that the harms flowing from the alleged Charter breaches are neither reversible nor compensable in damages and are therefore “irreparable” by definition. The notice of application does not specifically reference para. 4 of Harper, nor does it explicitly assert the proposition that irreparable harm is to be presumed in a case of this kind. On the other hand, I note that the chambers judge, in reviewing the applicants’ position, said that they referred to RJR-MacDonald and Harper in arguing that irreparable harm should be assumed: RFJ at para. 84. It would seem that the AGBC did not understand this issue to have been raised as they advanced no argument on this point in their application response or, it would seem, in oral submissions in the court below. What can be said is that this Court does not have the benefit of the reasoned judgment of the court below on this issue.
[50] Fortunately, I need not resolve this dispute to rule on the application for leave to appeal. I am content to proceed on the footing that the argument was advanced below in some fashion. There is, however, nothing before me to support the applicants’ contention that the AGBC conceded the existence of irreparable harm.
[51] Turning to the analysis, I note that in Re Canadian Petcetera Ltd. Partnership, 2009 BCCA 255 at para. 19 (in Chambers), Justice Frankel said this in the context of an application for leave to appeal an order dismissing an application for injunctive relief:
[19] The law relating to the granting of injunctive relief is well-settled, and was applied by the chambers judge. In light of this, I do not see any issue of significance to the practice that would be resolved by an appeal. Moreover, I am unable to see much merit in the proposed appeal. This is very much a fact-driven case.
[52] But even accepting, for the purposes of this application, that the question of whether irreparable harm must be presumed on an interlocutory injunction application where a breach of constitutional rights is alleged is capable of raising a point of principle that is of significance to the practice, I do not accept that the applicants have demonstrated that they have a reasonably arguable ground of appeal. The merit inquiry must take account of the prospect of success of the proposed appeal, not the prospect of success in establishing that the judge below erred in one aspect of her analysis. I am not persuaded that the applicants have identified a reasonably arguable ground that the manner in which this issue was addressed by the chambers judge had any impact on the resolution of the central and governing issue on the application before her – whether the balance of convenience favoured granting the interim injunction.
[53] As noted earlier, the chambers judge recognized, on well-established authority, that the interim injunction application turned on her assessment of the balance of convenience – not irreparable harm. I am not persuaded that it is reasonably arguable that the alleged error in principle at the irreparable harm stage affected her analysis of the balance of convenience. Furthermore, the judge’s determination that the balance of convenience did not favour granting the injunction was a discretionary one. Absent an error in principle infecting the analysis, discretionary decisions attract a highly deferential standard of review: Metropolitan Stores at 154-156. As Ryan J.A. stated in Drader v. Abbotsford (City) (1997), 40 B.C.L.R. (3d) 16 at para. 27 (in C.A. Chambers), “it would be exceptional to grant leave in a case which turns upon where the balance of convenience lies”. I see no merit in, nor do I see any issue of importance to the practice based on an appeal that seeks to challenge the manner in which a judge resolved questions concerning the balance of convenience in a particular context.
[54] Further, the manner in which the judge exercised her discretion in assessing the balance of convenience is consistent with analogous and governing authorities. In these circumstances, I do not see how it could reasonably be argued on appeal that, absent the alleged error in principle on irreparable harm, she would have come to a different conclusion. I rely here on the reasoning of the majority in Harper which, for convenience, I set out below:
5 Applications for interlocutory injunctions against enforcement of still-valid legislation under constitutional attack raise special considerations when it comes to determining the balance of convenience. On the one hand stands the benefit flowing from the law. On the other stand the rights that the law is alleged to infringe. An interlocutory injunction may have the effect of depriving the public of the benefit of a statute which has been duly enacted and which may in the end be held valid, and of granting effective victory to the applicant before the case has been judicially decided. Conversely, denying or staying the injunction may deprive plaintiffs of constitutional rights simply because the courts cannot move quickly enough: R. J. Sharpe, Injunctions and Specific Performance (loose-leaf ed.), at para. 3.1220.
6 The trial judge found that the freedom of speech interest raised by the applicant Harper to be of great importance. On the other side of the balance, he found that the Attorney General of Canada had called no evidence on the harm that would result from suspending the operation of the law. In the absence of evidence, he characterized this harm as “notional unproven unfairness” (para. 35). Accordingly, he found that the balance of convenience favoured the grant of an injunction.
7 We cannot, with respect, agree. This application is governed by the principles set forth in previous cases. On appeal the applicant Harper may seek alteration of these principles, but for the moment they govern. Applying these principles, the balance of convenience in this case favours granting the stay of the injunction. One of these principles is the rule against granting the equivalent of final relief in interlocutory challenges to electoral statutes, even in the course of elections governed by those statutes: Gould v. Attorney General of Canada, [1984] 2 S.C.R. 124; see also Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, per Beetz J., at p. 144; Haig v. Canada, [1993] 2 S.C.R. 995. In this case, allowing the injunction to stay in place will in effect give Mr. Harper the ultimate relief he seeks in his action, at least with respect to the current election. The trial judge, however, did not address this factor, nor the case law which addresses it.
8 It may also be noted that, in Thomson Newspapers Co. v. Canada (Attorney General), S.C.C., No. 25593, May 7, 1997 (published in the Bulletin of Proceedings of the Supreme Court of Canada, 1997, at p. 882), this Court refused to grant a stay suspending the enforcement of the provisions mandating publication bans on opinion polls set forth in the Canada Elections Act, R.S.C., 1985, c. E-2, s. 322.1. In so doing, the Court relied on its previous decision in Gould, supra. The Court refused the stay even though the ultimate decision found the poll prohibition to be unconstitutional.
9 Another principle set out in the cases is that in considering the grant of an interlocutory injunction suspending the operation of a validly enacted but challenged law, it is wrong to insist on proof that the law will produce a public good. Rather, at this stage of the proceeding, this is presumed. As Sopinka and Cory JJ. stated in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 348-49:
When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must be assumed to do so. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.
It follows that in assessing the balance of convenience, the motions judge must proceed on the assumption that the law -- in this case the spending limits imposed by s. 350 of the [Canada Elections Act, S.C. 2000, c. 9] -- is directed to the public good and serves a valid public purpose. This applies to violations of the s. 2(b) right of freedom of expression; indeed, the violation at issue in RJR-MacDonald was of s. 2(b). The assumption of the public interest in enforcing the law weighs heavily in the balance. Courts will not lightly order that laws that Parliament or a legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.
10 Again, the trial judge appears not to have applied this principle in weighing the benefits of the law against its impact on free expression. Instead of assuming that the legislation has the effect of promoting the public interest as RJR-MacDonald directs, the trial judge based his conclusion on the fact that the Government “has not adduced any evidence to illustrate unfairness in any of these elections in Canada caused by third-party spending limits” (para. 33). He went on to repeat that the “Government simply asserts that third-party spending limits, if not controlled, may (and that is notional only) impact adversely on the fairness of elections” (para. 34), and moved directly from this to the conclusion that leaving the spending limits in place “would clearly cause more harm in the public interest than the notional unproven unfairness suggested by the Government” (para. 35). Moreover, the trial judge made no mention of the fact that the law may be seen not only as limiting free expression but as regulating it in order to permit all voices during an election to be heard fairly.
11 Applying the principles enunciated in previous decisions of this Court, and without prejudging the outcome of any appeal from the injunction, we are satisfied that the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the applicant Harper even though the trial has not been completed. Moreover, applying RJR-MacDonald, we must take as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose. Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, we conclude that the balance of convenience favours staying the injunction granted by the trial judge.
[55] I now turn to the second error alleged by the applicants: that the chambers judge erred by conflating the two types of harm identified and not inferring, or considering whether it was open to her to infer, that public confidence in the democratic process would be irreparably harmed if the referendum result was announced and the process was later found to have been unconstitutional.
[56] With respect to the first sub-issue, I do not see any merit in the applicants’ contention that the judge erred by conflating the two types of harm. It is apparent, and both counsel agree, that the focus of the hearing below was the harm flowing from the Charter breaches. Potential harm to public confidence in the democratic process was not emphasized in the court below to the same degree as it was before me. This likely explains why the judge focused her analysis at the irreparable harm stage on the alleged harm from the Charter breaches. In any event, the judge did separately consider the alleged harm to the democratic process, characterizing that harm as “hypothetical”: RFJ at para. 93. I see no merit in this proposed ground of appeal and certainly not one of general significance to the practice.
[57] With respect to the second sub-issue, I again see no merit in the applicants’ contention that the judge erred by failing to infer, or failing to consider whether it was open to her to infer, that public confidence in the democratic process would be irreparably harmed if the referendum result was announced and the process was later found to have been tainted by findings of constitutional infringement. I find no merit in the notion that the judge was unaware that it was open to her to draw an inference of intangible harm of the sort alleged by the applicants. It perhaps goes without saying that such harm could never be proven empirically – it could only ever be inferred. As I read the judge’s reasons, she was not prepared to draw that inference. This was (as it was in Bob, at paras. 43-44, 47-49) a matter for the chambers judge to assess. I see no point of principle or issue of general importance to the practice here and none that would raise an arguable ground of appeal given the deference accorded to discretionary decisions.
[58] In the result, I am not persuaded that the proposed appeal meets the low merits threshold contemplated on an application for leave to appeal.
[59] While resolution of this issue is all but dispositive of the application for leave to appeal, I will briefly consider the other criteria set out in Goldman, Sachs & Co. that feature less significantly in my analysis, as well as considerations that go more generally to the assessment of the interests of justice in this case. In my view, none of these considerations favour granting leave to appeal.
[60] The applicants submit that the appeal is of significance to the action because it is required to protect the legitimacy of the referendum process. They say that it would be difficult to fashion a remedy for the damage that would result if the referendum is found to have been unconstitutional while the implementation of the referendum is already under way. I am not satisfied that an appeal would be of significance to the action. It seems to me that the issues sought to be determined on appeal – regarding the application of the RJR-MacDonald criteria in this case – will not determine the outcome of the petition hearing. But I would prefer not to rest my analysis on this point.
[61] I cannot accept the position of the applicants that granting leave to appeal would not unduly hinder progress of the petition. In my view, granting leave would likely imperil the dates that have been fixed for the hearing of the petition.
[62] Turning next to issues that more generally engage assessment of the interests of justice, and having regard to both the calendar of this Court and the size and nature of the proposed appeal, it is unreasonable to suppose that this case can be heard and decided before November 30, 2018, the date upon which voting closes. As a practical matter, resolution of the appeal by this Court would occur after the vote and would not address the applicants’ constitutional concern about spending restrictions on referendum advertising. It is equally unreasonable to suppose that resolution of the appeal by this Court would occur before the results of the referendum are scheduled to be announced in mid-December.
[63] As set out in the affidavit of Mr. Reimer, any delay in the timeline of events that must occur from mid-December onward (if the result of the referendum favours adoption of a Proportional Representation voting system) would jeopardize the ability of government to implement a new voting system in time for the next scheduled general election.
[64] Finally, even assuming that the result of the referendum favours adoption of a Proportional Representation voting system, no irreversible implementation steps will have been taken by the time the petition is heard and decided in 2019.
[65] All of these considerations suggest to me that it is not in the interests of justice to grant leave to appeal in this case.
[66] For the foregoing reasons, I am not satisfied that the conditions for granting leave to appeal have been met. In the result, the application for leave to appeal is dismissed.
“The Honourable Mr. Justice Fitch”