Court dismisses request for injunction to extend voting in PC leadership race

A Superior Court judge has dismissed a request for an injunction that would have extended the voting in the Ontario Progressive Conservative leadership election by one week.

The Friday evening decision means the party can proceed with its plans to announce the winner of the leadership race Saturday afternoon at a convention hall in Markham, plans that are costing the party $250,000.

In his decision, Justice Todd Archibald wrote that that the disenfranchised didn't avail themselves of the party's internal dispute-resolution mechanism before turning to the court. "On this grounds alone, I would dismiss this application," he wrote.

The judge also found that extending the voting period would do more harm to the party, and to the members who had voted, than to those who were unable to vote.

"One more week without a leader impacts every member of the Progressive Conservative [Party] of Ontario. The Convention would have to be rescheduled and perhaps relocated if I were to extend the voting period," Archibald wrote.

Lawyer Jeffrey Radnoff had filed the application on behalf of PC party member Christopher Arsenault. He said the party won't be asking his client to pay costs, as it understands that the issue at stake was an important one.

Radnoff said his client remains disappointed that he can't vote — but said the court challenge was worth it.

"Hopefully, everyone pays attention and if there are going to be elections like this they're going to be done more carefully."

Radnoff had told the court that Arsenault and five other party members filed affidavits stating they'd paid for their memberships but have not yet received letters in the mail that contain a unique voter verification PIN that is required for them to vote.

The window for voting in the election closed at noon Friday, barring a decision in Arsenault's favour.

Since the legal challenge hit the media on Thursday, Radnoff said he received emails from party members saying they had the same problem casting their vote: “Just regular people who paid their fee and want to be involved in the democratic process,” he said.

The party had initially planned to allow voting in the leadership election between March 2 and 8, but extended the deadline to March 9 at noon, because of problems with the process. However, the PCs' Leadership Election Organizing Committee (LEOC) issued a statement saying it could not be extended further because it would violate the party's constitution.

But Radnoff argued that disenfranchised Tories would suffer "irreparable harm" if the voting deadline was not extended.

PC Party lawyer Gina Brannan did not dispute that some members were not able to vote but argued that the "irreparable harm" would be to the party if the voting was extended by a week. In that case, the party would be deprived of having a leader on the hustings — and the general election is only three months away.

She also characterized pushing back the voting cutoff date as "moving the goal posts" in the election: “These rules are specific for a very good reason, to maintain a process that has some integrity. That’s what they’re there for."

Brannan also made a legal "process" argument, saying the application for an injunction was not appropriate and the issues must be dealt with by a judicial review — so the injunction should not be granted. She also argued there is internal appeal process set out within the party’s rules that was not exhausted.

She said the problem with people not receiving their PINs in the mail "has been outstanding from the get-go," and the applicant had only sought an injunction at the last possible minute.

“I ask you to draw an inference that there’s some sort of mischief at foot,” she said, adding she would not guess what that mischief is.

“I probably would not draw that inference,” Archibald replied.

Archibald said he was aware of the time pressure on the case. The period in which Tories could verify their memberships, using their PINs, had ended on Thursday evening. The voting period closed at noon Friday while court was in session. The official announcement of the new leader at a convention hall in Markham was planned for Saturday afternoon.

"I have to get this thing out to you people today, because you have something tomorrow," the judge said, adding he had to decide whether to "put the brakes" on the leadership election.

Archibald, who spoke plainly, directly and somewhat gruffly at times, sent Radnoff's co-counsel hustling out of the courtroom to satisfy his demand that the applicant's side come up with at least one case that would support their view against the legal process argument put forward by the party.

LEOC issued a statement calling the court action "unfortunate."

The chair, Hartley Lefton, gave oral evidence at the hearing. He said that as of 8 a.m. Friday, 71,402 people had had their party memberships verified and had been sent email ballots; of those, 60,876 had voted, calling it "an all-time high for the PC Party of Ontario."

He said the total number of party members is in the "ballpark" of 190,000, which would mean that a little under a third had voted.

Lefton also suggested that many of the complaints about being unable to vote came from people who thought they were party members, but actually were not.

While the applicant in the case is a member, Lefton said he hadn't had time to verify if the other five people who filed affidavits are also party members.

He noted that the party has spent $1.5 million on the leadership election, $250,000 of that on the announcement event planned for Saturday in Markham, which would be at risk if the voting deadline is extended.

Daniel Santoro, a lawyer representing Tanya Granic Allen and her leadership election campaign, intervened in the case to support the request for an injunction. He provided an affidavit from John Beishlag, a senior organizer on Granic Allen's campaign, who also hasn't received his voter verification PIN in the mail.

Addressing the party's argument that the applicant had chosen the wrong legal process for seeking a remedy from the court, he argued that it was only a problem with the paperwork. If the judge would have granted the injunction if it had been filed properly, then he should allow the paperwork to be amended and grant the injunction, Santoro said.

"We have real people who are coming to court looking for a remedy," he said.

Santoro disputed a key point in the party's argument about how its rules on internal appeals should be applied — something the judge appeared to agree with, calling it his "best point so far."

The two sides also sparred over the party's constitution. Lefton had said the party didn't extend voting past March 9 because it would violate a clause that says the cut-off date for the leadership election — the last dates candidates can join the race and people can join the party and still vote — "shall not be earlier than the mid-point between the date the election is called and the date voting is scheduled to conclude."

Radnoff suggested retroactively moving the cut-off date, but Brannan said that would lead to new members becoming eligible to vote and requiring a letter of their own — creating a "never-ending story."

Radnoff's overarching argument was that the party members were being denied their right to vote. However, the judge did not immediately accept his contention that the vote in a party's leadership race is on par with the constitutional right to vote in provincial and federal general elections.

“There may be some marked differences in the right to vote as a Canadian citizen and the right to vote as a member of a political party,” Archibald said.

The request for an injunction was brought to the public's attention on Thursday evening, via tweets from lawyer John Nunziata, a former Liberal MP. Nunziata was present in court Friday as a spectator.

Doug Ford, Caroline Mulroney and Granic Allen — three out of the four PC leadership candidates — had already been calling on the party to extend the voting period by a week, because many members have complained that they have not yet received a letter in the mail that contains the code required for them to verify their identity and then vote online.

Ford has been particularly outspoken on the issue, calling the vote "corrupted" in an email blast to party members, and suggesting it was because the party favoured Christine Elliott, the only leadership candidate who did not call for voting to be extended.

"The party insiders are siding with Christine against the thousands of regular members who can’t vote," he said.

Arsenault, the applicant in the case, donated $1,222, the legal maximum, to Ford's leadership campaign.

Ford's campaign hasn't been involved in the legal application, and learned about it on Twitter, a spokesperson said. However, his mother, Diane Ford, is also among those who haven't received their letter, and thus cannot vote.