The Question of Profound Importance is this: Who can be a Party to the LPAT's proceedings? And as far as I can tell, the answer appears to be 'hardly anyone'.
The Old World
Let's step back for a moment and review what would have happened with appeals to the Ontario Municipal Board. First, my appeal to the LPAT was made under subsection 34(19) of the Planning Act - an appeal made to a decision of Council to change the zoning designation on certain lands, in order to permit an arena. Several others also filed an appeal to the same matter. There are related matters - two additional zoning amendments - one to permit a casino, the other to permit a parking lot - and one official plan amendment (for the casino), that were also appealed. While these matters are related (the City refers to this collective initiative as the "Kingsway Entertainment District"), they are 3 different issues.
The appellants are: myself (arena only); Casino-Free Sudbury, and the Downtown Sudbury BIA (all 3 matters); Dr. Christopher Duncanson-Hales (OPA for the casino only) and John Lindsay (parking lot only). The appeals all pertain to decisions made by Greater Sudbury Council on applications filed by 1916596 Ontario Ltd., a number company under the control of developer Dario Zulich. All of the applications pertain to land within a draft approved, but unregistered plan of subdivision owned by the numbered company (You can read more about all of this in my blogseries, which started with this post: "The Kingsway Cases at the LPAT: An (Unrepresented) Party's Observations, Part 1: In the Beginning")
Had this matter gone to the Ontario Municipal Board, all of the appellants, along with the approval authority (the City of Greater Sudbury) and the applicant would have automatically been parties to the proceedings. Each would have been given the opportunity to make its case to the OMB through a hearing de novo process, and the OMB would have ultimately made a decision on each of the matters.
Additional parties or participants also could have potentially taken part in the proceedings. Parties could have been added by the Board on its own initiative. Existing parties might have been able to object to the addition of certain parties, but the rules were clear: the Board had the ability to add parties, with few or no restrictions.
The New World - Rule 26 Proceedings
Fast forward to the LPAT. Guess what? The LPAT's hands are really tied - at least for the purpose of adding parties to Rule 26 proceedings like this one (appeals to decisions related to official plan amendments and zoning by-law amendments).
Let's look at the Local Planning Appeal Tribunal Act and see what it has to say about adding new parties.
The process starts in subsection 40(1) (note that the matters in front of the LPAT are appeals as described in 38(1) of the LPAT Act). To be added as a party, a person must make a written submission to the Tribunal that outlines a), b) and c) - and as per 40(2), that written submission needs to be made 30 days in advance of the Case Management Conference.
In the matters before the LPAT here in Greater Sudbury, two 'people' have followed this process, and have asked the LPAT to be added as parties to all of the matters in front of the LPAT. Those 'persons' are: 1) 1916596 Ontario Ltd. (the applicant); and, 2) Gateway Casinos.
Yes, the applicant apparently is not a party to the proceedings. As per the LPAT, only the appellants and the City are identified as parties.
So Zulich and Gateway are following the process outlined in subsections 40(1) and (2), underlined in green in above. They submitted their written requests. The written requests included statements respecting whether the decision was inconsistent with the PPS (they said it was not), failed to conform or does conflict with the Growth Plan for Northern Ontario (they said it conformed and did not conflict with the GPNO), and fails to conform with the City's official plan (they said it did not fail to conform). And they made their submissions to the LPAT at least 30 days before the CMC.
New Parties Can Only 'Participate in the Appeal'
But here's where it gets interesting. Note that language used in 40(1) and 40(4) (underlined in red). The reference here is clear: 'participate in an appeal'. Section 40 of the LPAT Act is clearly set up in a way as to restrict who the LPAT can add as a Party - and it's only those who want to participate in an appeal.
Note that elsewhere in the LPAT Act, and especially in subsection 33, "Powers of Tribunal re: proceedings" matters in front of the LPAT are called "proceedings". So for example, the Case Management Conference is a proceeding - it's not an "appeal".
So we're back to subsection 40, which makes it clear: the only 'persons' that can be added to a proceeding have to join the appeal. Even the (strange to planners) language used in 40(1)(a), (b) and (c) suggests that this is the case - because it would only be the appellants that would be arguing on the basis of inconsistency and lack of conformity. It is true that all of this is complicated by the use of the word "whether" in 40(1) - but frankly that's probably the right term to use - just in case a potential Party might be of the opinion that a matters wasn't consistent with the PPS, but might have conformed with an older Official Plan (for example: a development on lands identified as a Provincially Significant Wetland, but identified in an official plan as being in a residential area). Or maybe there is no provincial plan in effect. So while "whether" might at first appear to give some hope to new parties who, like Gateway and Zulich, want to argue in favour of decisions, that's not really why it's there.
And there are no other sections of the Act which speak to adding parties for these sorts of proceedings.
And there are no other sections of the Act which speak to adding parties for these sorts of proceedings.
It does not appear that either Zulich or Gateway can be added as 'parties' to the matters presently in front of the LPAT. While there may be some discretion for non-party participants found 40(4), again there is the reference to participating in "the appeal". And that's not what Gateway or Zulich want to do. They want to provide insight to the Tribunal in support of the City's decisions.
Sorry Zulich and Gateway - that's just not in the cards.
What the Rules Say
What the Rules Say
Or is it? Do the LPAT's Rules of Practice and Procedure offer any hope?
Initially, it appears that they might - but ultimately, I think it slams the door shut even further. Let's look at what the Rules have to say specifically about this circumstance: the addition of parties at the Case Management Conference. Here's Rule 26.19 in its entirety:
"26.19 Participation in the Case Management Conference A person other than the Appellant, the municipality or approval authority who wishes to participate in an appeal initiated
under subsections 17(24), 17(36), 17(40) 22(7), 34 (11), 34(19) or 51(34) of the Planning Act
must file a written submission with the Registrar, at least 30 days before the date of the case
management conference, and that submission shall explain the nature of their interest in the
matter and how their participation will assist the Tribunal in determining the issues in the
proceeding. In addition, a person shall explain whether the decision or non-decision of the
municipality or approval authority was inconsistent with a policy statement under subsection
3(1) of the Planning Act, fails to conform with or conflicts with a provincial plan, or fails to
conform with an applicable official plan. Any submission shall also be provided to the
municipality or to the approval authority whose decision or failure to make a decision is
appealed and a certificate of service shall be filed with the Registrar to confirm service of any submission."
See what I mean? There's no reference here to "participate in the appeal". If you were reading this Rule in isolation, you might conclude that if a 'person' believes it can assist the Tribunal, there's a chance that it can be added as a Party - no matter whether than assistance is being made in support of the appeal - or, as in the case of Zulich and Gateway - in support of Council's decision.
But Rule 26.20, which identifies what the Tribunal can do at a CMC, indicates that the Tribunal can: (a) identify persons other than the Appellant, the municipality or approval authority, who wish to participate in the appeal, based on written submissions provided by these persons to the
Tribunal;
But Rule 26.20, which identifies what the Tribunal can do at a CMC, indicates that the Tribunal can: (a) identify persons other than the Appellant, the municipality or approval authority, who wish to participate in the appeal, based on written submissions provided by these persons to the
Tribunal;
So 26.20 takes us back to 'participate in the appeal'. Even in (b), which allows the Tribunal to determine whether a person can be a 'party' or 'participant', there is reference to 'participate in the appeal'. And there are no other references outside of (a) and (b) in 26.20 that speak to the addition of parties or participants at the CMC. Clearly, the Tribunal is restricted by the Rules to only identifies parties to proceedings that are there to support the appeal - and not, as in this case, the City's decision.
Even the definition of "Party" is of no help to Zulich and Gateway. The LPAT's Rules of Practice and Procedure's define "Party" as: "includes a person entitled by the statute under which the proceeding arises to be a party to the proceeding and includes those persons whom the Tribunal accepts or adds as parties on such terms as the Tribunal may determine."
In this case, neither Zulich nor Gateway are parties as per the 'statute' under which the proceeding has arisen (the "Planning Act"). But can the Tribunal accept and add Zulich and Gateway as 'parties' as per the second half of the definition?
No Mechanism for Pro-Decision Persons to be Added as Parties
No, I don't think the LPAT has that authority, given Rule 26.20, and given the limitations placed on it by another statute - the LPAT Act, and specifically subsection 40, as identified above - which restricts the addition of 'parties' to those who 'participate in the appeal'. The language found in the LPAT's Rules has to be there because of other proceedings, such as those related to appeals of plans of subdivision or minor variances. Essentially, to appeals not proceeding under a Section 26 process (so yes, the LPAT retains discretion for adding parties to proceedings related to the appeal of minor variances - but not to appeals related to decisions made on official plan amendments and zoning amendments. I'll leave it with you to determine whether that makes any sense - but remember, one of the purposes of getting rid of the OMB and replacing it with the LPAT was to streamline the appeal process. It could very well be that eliminating opportunities for applicant/land owners like Zulich or those with stated interests in matters like Gateway Casinos will lead to those efficiencies.
Ultimately, the City is on its own to make a case that its decision met the tests of consistency with the PPS, and conformity with the Growth Plan and the City's official plan. It doesn't really need any help doing so - or if it did, the time to lend a hand would have been before a decision was made. Zulich, the applicant, at least did that: his planner, Karl Tanner of Dillon Consulting, submitted a Planning Justification Report for the casino applications, and several memos for the arena applications (and perhaps something for the parking lot as well).
Gateway Casinos, however, has not participated in the land use planning processes for any of these applications. If the LPAT Act didn't already prohibit their participation as a Party, I as a party to the matter, would certainly be opposing their johnny-come-lately request to be a Party now.
What Can They Offer, Anyway?
But even if there were a way for Gateway to become a Party, what would they be able to do as a Party? The answer is 'not much'.
42(1) of the LPAT Act here indicates that only Parties can participate in oral hearings. However, even those parties are restricted in what they can do at oral hearings: they can make a submission that doesn't exceed to prescribed time (which for these matters has not been determined, but will not exceed 75 minutes). They can call witnesses, but they can't cross-examine other witnesses. And as for evidence? Well, it seems that new evidence can't be brought forward at this time (presumably, all of the evidence would have been 'adduced' through earlier submissions).
No Hope
So with that in mind, what could Zulich or Gateway Casinos actually bring to an oral hearing? Just experts who will speak to evidence already entered into the record. What's the point of that?
Could Gateway Casinos or Zulich still get in front of the LPAT in some manner, even if not as a Party (which they've both requested) or as a participant (which they aren't contemplating but which also appears to be a door closed to them due to the 'participate in the appeal language of 26.20 (b)) Well, in Rule 26.20 (e), the LPAT at a CMC could, "obtain admissions that may simplify the hearing, which may include the examination of persons by the Tribunal as part of the case management conference".
So maybe if the LPAT is of the opinion that these 'persons' have something to offer which might 'simplify the hearing', the LPAT may be able to examine those persons - but only at the CMC.
At first glance, 26.20 (g) might be an 'out' for Zulich and Gateway. It indicates that the Tribunal may : "provide directions that a person or persons attend the hearing for examination by the Tribunal, including persons to provide expert opinion evidence." But for Zulich or Gateway to "attend" the hearing, the hearing will have to be a written hearing, because Section 42(3) of the LPAT Act restricts participation at oral hearings to just the parties - and we know Zulich and Gateway Casinos cannot be a party to these proceedings.
So there might be some way for Zulich and Gateway Casinos to participate in a written hearing. But not as parties, or participants, but instead as 'persons' as per 26.20 (g). And I don't know what a 'person' is, except maybe an expert witness of one of the appellants. Whatever it is, I don't think the Rules intend to establish a new category of hearing participants - although they might do just that. If Gateway Casinos and Zulich can't be parties, can't be participants, aren't identified as witnesses by any of the parties, but still want to somehow be involved in the process - well, maybe the LPAT will take them on as 'persons'.
But doing so will almost certainly create an incredible degree of uncertainty in all future LPAT proceedings. Why? Well, we know what the roles and responsibilities of 'parties' and 'participants' in hearings are - those roles and responsibilities are defined in the LPAT's Rules of Practice and Procedure. But 'persons'? No - there's no definition.
So it seems unlikely to me that the LPAT will go along with any of this.
Follow the Rules - Even When They're A Raw Deal
But mostly, I hope that the LPAT sticks to its own legislation and Rules - and refuses to entertain the participation of either Zulich or Gateway Casinos in the proceedings. You know what? That's actually only partially true. Let me be blunt here - Yes, the LPAT needs to follow its rules, but following those rules leads to a very raw deal for Dario Zulich - the landowner and applicant. Through his agents, and by filing applications with the City, it's clear that Zulich has been involved in these matters throughout the process. Why applicants - many of whom have retained their own experts, as Zulich has done - should be told now at this point in the process that they can no longer participate - well, I think that's unfair, and unjust - especially since the LPAT will be making a decision that pertains directly to their land holdings.
Look, I know this isn't going to happen, but for the sake of fun and giggles, let's say a new Council is elected here in Greater Sudbury, and after the CMC, they pull the plug on participating in the LPAT hearing. A new Council decides that it's no longer going to defend the decision it made. That's always something that a municipality can decide on doing - not showing up. But in their absence, what of the applicant - the land owner - who has been sidelined by this new process? Sorry - but it's just not fair.
Gateway Casinos is in a different spot. Sure, they may have an interest in the lands, but so what? They haven't participated in any public process under the Planning Act. That they have the audacity to show up now and want in on a public process that they don't appear to be able to join - I have no sympathy or time for them. Surely they've got a lot of money and access to lawyers who can interpret legislation, regulations and guidelines much better than I do. There was an outside chance that Council might have said 'no' to the casino applications. Why didn't they protect their appeal rights by making some kind of submission in support of the applications?
And keep in mind, Gateway isn't just requesting party status for the casino matters. It's requesting party status for all of the matters in front of the LPAT - including the arena - something it claims to have an interest in. Which is - well, very interesting given the City's position that these are separate matters.
Anyway, if I'm wrong about my interpretation regarding adding parties - and the LPAT entertains the requests, I will not oppose having Dario Zulich added as a Party - but I will vehemently oppose Gateway Casinos.
Now: Who's going to join me for a drink?
(opinions expressed in this blog are my own and should not be interpreted as being consistent with the views and/or policies of the Green Parties of Ontario and Canada)
Gateway Casinos, however, has not participated in the land use planning processes for any of these applications. If the LPAT Act didn't already prohibit their participation as a Party, I as a party to the matter, would certainly be opposing their johnny-come-lately request to be a Party now.
What Can They Offer, Anyway?
But even if there were a way for Gateway to become a Party, what would they be able to do as a Party? The answer is 'not much'.
No Hope
So with that in mind, what could Zulich or Gateway Casinos actually bring to an oral hearing? Just experts who will speak to evidence already entered into the record. What's the point of that?
Could Gateway Casinos or Zulich still get in front of the LPAT in some manner, even if not as a Party (which they've both requested) or as a participant (which they aren't contemplating but which also appears to be a door closed to them due to the 'participate in the appeal language of 26.20 (b)) Well, in Rule 26.20 (e), the LPAT at a CMC could, "obtain admissions that may simplify the hearing, which may include the examination of persons by the Tribunal as part of the case management conference".
So maybe if the LPAT is of the opinion that these 'persons' have something to offer which might 'simplify the hearing', the LPAT may be able to examine those persons - but only at the CMC.
At first glance, 26.20 (g) might be an 'out' for Zulich and Gateway. It indicates that the Tribunal may : "provide directions that a person or persons attend the hearing for examination by the Tribunal, including persons to provide expert opinion evidence." But for Zulich or Gateway to "attend" the hearing, the hearing will have to be a written hearing, because Section 42(3) of the LPAT Act restricts participation at oral hearings to just the parties - and we know Zulich and Gateway Casinos cannot be a party to these proceedings.
So there might be some way for Zulich and Gateway Casinos to participate in a written hearing. But not as parties, or participants, but instead as 'persons' as per 26.20 (g). And I don't know what a 'person' is, except maybe an expert witness of one of the appellants. Whatever it is, I don't think the Rules intend to establish a new category of hearing participants - although they might do just that. If Gateway Casinos and Zulich can't be parties, can't be participants, aren't identified as witnesses by any of the parties, but still want to somehow be involved in the process - well, maybe the LPAT will take them on as 'persons'.
But doing so will almost certainly create an incredible degree of uncertainty in all future LPAT proceedings. Why? Well, we know what the roles and responsibilities of 'parties' and 'participants' in hearings are - those roles and responsibilities are defined in the LPAT's Rules of Practice and Procedure. But 'persons'? No - there's no definition.
So it seems unlikely to me that the LPAT will go along with any of this.
Follow the Rules - Even When They're A Raw Deal
But mostly, I hope that the LPAT sticks to its own legislation and Rules - and refuses to entertain the participation of either Zulich or Gateway Casinos in the proceedings. You know what? That's actually only partially true. Let me be blunt here - Yes, the LPAT needs to follow its rules, but following those rules leads to a very raw deal for Dario Zulich - the landowner and applicant. Through his agents, and by filing applications with the City, it's clear that Zulich has been involved in these matters throughout the process. Why applicants - many of whom have retained their own experts, as Zulich has done - should be told now at this point in the process that they can no longer participate - well, I think that's unfair, and unjust - especially since the LPAT will be making a decision that pertains directly to their land holdings.
Look, I know this isn't going to happen, but for the sake of fun and giggles, let's say a new Council is elected here in Greater Sudbury, and after the CMC, they pull the plug on participating in the LPAT hearing. A new Council decides that it's no longer going to defend the decision it made. That's always something that a municipality can decide on doing - not showing up. But in their absence, what of the applicant - the land owner - who has been sidelined by this new process? Sorry - but it's just not fair.
Gateway Casinos is in a different spot. Sure, they may have an interest in the lands, but so what? They haven't participated in any public process under the Planning Act. That they have the audacity to show up now and want in on a public process that they don't appear to be able to join - I have no sympathy or time for them. Surely they've got a lot of money and access to lawyers who can interpret legislation, regulations and guidelines much better than I do. There was an outside chance that Council might have said 'no' to the casino applications. Why didn't they protect their appeal rights by making some kind of submission in support of the applications?
And keep in mind, Gateway isn't just requesting party status for the casino matters. It's requesting party status for all of the matters in front of the LPAT - including the arena - something it claims to have an interest in. Which is - well, very interesting given the City's position that these are separate matters.
Anyway, if I'm wrong about my interpretation regarding adding parties - and the LPAT entertains the requests, I will not oppose having Dario Zulich added as a Party - but I will vehemently oppose Gateway Casinos.
Now: Who's going to join me for a drink?
(opinions expressed in this blog are my own and should not be interpreted as being consistent with the views and/or policies of the Green Parties of Ontario and Canada)
89 comments:
The Planning Act is a provincially enacted law. Planning Act subs. 8(2) permits the City to have a Planning Committee in accordance with s. 8 because Sudbury is a single tier municipality within the territorial district of Sudbury.
Planning Act s. 8 has six subsections that must be complied with in their entirety. The word “shall” in subs. 8(4) is imperative and since 2015 statutorily requires at least one resident be on the Planning Committee who is neither a member of our municipal council nor an employee of the municipality.
A municipality cannot bypass a provincial enacted process and City Council failed to include a required resident on the Planning Committee as the Planning Committee only has five City Council members. Thus the City has acted in bad faith; interfered with its statutory duty; and breached the doctrine of procedural fairness and legitimate expectations by failing to follow the provincially established and mandated procedure.
See Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999]2 S.C.R. 817, [1999] S.C.J. No. 39.
In the result, the 2018 Planning Committee hearings regarding KED were not duly convened because the Planning Committee does not have at least one statutorily required resident on the Committee.
Therefore, like it or not, the Planning Committee recommendations / resolutions are a nullity void ab initio and at law something that is void does not exist.
City Council claims they then approved the void Planning Committee’s Official Plan and rezoning decisions that do not even exist, however, City Council’s confirming by-laws of the non-existing void Planning Committee's recommendations / resolutions are also a nullity void ab initio as there are no Planning Committee Official Plan and rezoning decisions to confirm.
Furthermore, the five City Council members who sit on the Planning Committee improperly voted as City Council members to confirm their own Planning Committee decisions when only the other eight City Council members who do not sit on the Planning Committee are entitled to vote on confirming Planning Committee decisions.
And just like the five City Council Planning Committee members, the resident on the Planning Committee does not get to vote on confirming their own Planning Committee decision, either.
Planning Act, R.S.O. 1990, c. P.13
https://www.ontario.ca/laws/statute/90p13#BK11
PART II
LOCAL PLANNING ADMINISTRATION
Planning advisory committee
Optional for other municipalities
8(2) The council of a lower-tier municipality, THE COUNCIL OF A SINGLE-TIER MUNICIPALITY THAT IS IN A TERRITORIAL DISTRICT or the council of the Township of Pelee may appoint a planning advisory committee in accordance with this section.
…
Membership
(4) The members of a planning advisory committee shall be chosen by the council AND SHALL INCLUDE AT LEAST ONE RESIDENT of the municipality who is neither a member of a municipal council nor an employee of the municipality. 2015, c. 26, s. 16.
The Planning Committee
https://www.greatersudbury.ca/city-hall/mayor-and-council/committees-of-council/planning-committee/
Chair: Councillor Deb McIntosh
Vice-Chair: Councillor René Lapierre
Committee Members:
Councillor René Lapierre,
Councillor Mike Jakubo,
Councillor Al Sizer,
Councillor Deb McIntosh,
Councillor Joscelyne Landry-Altmann
Six City Council members forfeited office before the June 2017 vote so the real vote was 4-2 for building the arena downtown. Only the votes of those members entitled to vote actually count and the 7 council members who attended the meeting still had a quorum during the valid binding recorded vote.
I will now take you through each of the six who forfeited office. I cannot add the campaign statement attachments but you can find them on the City's website.
The June 2017 vote to build the arena downtown was a tie (6-6) and a tie defeats the vote.
Downtown supporters:
Signoretti
*Lapierre
Sizer
McIntosh
Cormier
*Bigger
Downtown opposers:
*Kirwan
Vagnini
*Dutrisac
Jakubo
*Reynolds
*Landry-Altmann
However, Bigger, Kirwan, Dutrisac, Reynolds, Landry Altmann and Lapierre votes are a nullity void ab initio.
The Municipal Elections Act imposes immediate and automatic Ontario Legislature administrative office forfeiture penalties by operation of law. What this means is that the Ontario Legislature expressly sets out the penalty in MEA s. 80(2) if a candidate violates s. 80(1).
The courts have already determined that the delay in enforcement does not defeat the MEA or defeat the imposed penalties under the MEA. Supreme Court of Canada decision Toronto (City) v. Polai, 1972 CanLII 22 (SCC), [1973] S.C.R. 38 (S.C.C.) stands for the proposition that delay in enforcement does not defeat a statute and it is inappropriate for private actions to defeat a statute in which the public has an interest. The policy for such a rule is that public enactments would otherwise have no meaning if violators could continue to breach a statute simply because others, and in this case the Clerk, deliberately failed to exercise their statutory duties.
The 2010 and 2014 municipal elections occurred under the MEA. The MEA was amended in 2016, but for purposes of the 2010 and 2014 elections the old MEA provisions apply to Bigger, Landry-Altmann, Dutrisac Lapierre and Kirwan because they were elected under the old MEA.
Brian Bigger
Brian Bigger forfeited office for falsely reporting a primary period deficit of $1,010.10 when he actually had a $438.70 surplus. Bigger deliberately failed to report $1,248.80 of primary period cash income to generate a fake primary period deficit so he could falsely claim a deficit and extend his campaign period and continue campaigning to recoup the $10,000.00 that he invested in his own campaign.
Bigger failed to give this $438.70 surplus to the Clerk and immediately and automatically forfeited office by operation of law at 2pm on the March 27, 2015 primary period filing date.
Bigger then reports a surplus of $8,447.71 in his supplementary period and immediately fortified office AGAIN at 2pm on the September 25, 2015 supplementary period filing date for failing to give the Clerk this surplus.
Bigger stole the $8,447.71 when he refunded it to himself because the money belongs to the City of Greater Sudbury in accordance with MEA ss. 69(1)(n) and 69(2).
There is no such thing as a supplementary campaign period surplus because Bigger’s campaign ended when Bigger collected enough money to eliminate his alleged $1,010.10 deficit and $1,404.58 of supplementary period expenses.
MEA s. 68(1) v. the day A equals the total of B and C, where,
A = any further contributions,
B = the expenses incurred during the extension of the election campaign period, and
C = the amount of the candidate’s deficit at the start of the extension of the election campaign period.
When Bigger failed, in accordance with s. 69(1)(m), to return the over contributions to the contributors who gave him the over contributions Bigger had a duty to give the surplus to the Clerk when he filed his campaign statement in accordance with s. 69(1)(n) and Bigger failed to do so and forfeited office.
Duties of candidate
69. (1) A candidate shall ensure that,
(m) a contribution of money made or received in contravention of this Act is returned to the contributor as soon as possible after the candidate becomes aware of the contravention;
(n) a contribution not returned to the contributor under clause (m) is paid to the clerk with whom the candidate’s nomination was filed;
Contributions paid to clerk
(2) Contributions paid to the clerk under clause (1) (n) or (o) become the property of the local municipality.
See Bigger’s primary campaign statement and his supplementary statement on the links below.
https://www.greatersudbury.ca/sudburyen/assets/File/Brian%20Bigger%20-%20Primary%20Filing.pdf
chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://www.greatersudbury.ca/city-hall/election-2018/past-election-results/2014-financial-statements-and-related-documents-mayor/brian-bigger-mayor-supplementary-filing/
In the result, Bigger’s June 2017 vote in support of the downtown arena location is a nullity void ab initio as Bigger was not mayor when he voted.
Joscelyne Landry-Altmann
In Landry-Altmann’s 2010 election campaign statement Laundry falsely reported a $614.25 primary period surplus and refunded the surplus to herself as evidenced in Box “B” line 8, Box “D”, Box “E” and Schedule 1.
However Landry-Altmann failed to report on line 5 in the Box C subject to spending limit expense portion of her campaign statement the $1,200.00 of expenses listed in Schedule 3.
Therefore, Landry-Altmann does not have total expense of $2,504.50 as she fraudulent reports on line C4 of Box C because in reality, and at law; she has expenses of $3,704.50.
This means Landry-Altmann’s did not have a $614.25 surplus as she fraudulently reports because she has a $585.75 deficit.
Landry-Altmann immediately and automatically forfeited office at 2pm on the March 28, 2011 primary period filing date because not only is her campaign statement not correct, but she also stole $614.25.
This $585.75 deficit carries over into the next 2014 election. This means even if Landry-Altmann could be a 2014 candidate, which is denied, she started the 2014 election with a deficit of $585.75.
Surplus and deficit
79. (1) A candidate has a surplus if the total credits exceed the total debits, and a deficit if the reverse is true.
Total debits
79.(3) For the purposes of subsection (1), the total debits are the sum of,
(a) the candidate’s expenses under section 67; and
(b) any deficit from a previous election campaign of the candidate if that campaign,
(i) related to an office on the same council or local board as the present campaign, and
(ii) was in the previous regular election or a subsequent by-election.
However Landry-Altmann’s 2014 sworn under oath election campaign statement is also fraudulent because she deliberately failed to carry over the $585.75 deficit and she fraudulently reports to have a balanced 2014 campaign when in reality, and at law; she has another $585.75 deficit.
Since Landry-Altmann immediately and automatically forfeited office at 2pm on the March 28, 2011 primary period filing date, she was barred from being a candidate in the 2014 election.
And even if she could be a candidate, which is denied, her 2014 campaign statement is incorrect and fraudulent and she forfeited office again at 2pm on the March 27, 2015 primary period filing date.
See Landry-Altmann’s fraudulent 2014 election campaign statements below.
chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://www.greatersudbury.ca/sudburyen/assets/File/Joscelyne%20Landry-Altmann%20-%20Councillor%20Ward%2012.pdf
In the result, Landry-Altmann’s June 2017 vote against the downtown arena location is a nullity void ab initio as Landry-Altmann’s was not a city councillor when she voted.
Genius Evelyn Dutrisac
In Box C of Dutrisac’s 2010 election campaign statement Dutrisac reports $5,656.21 of income and $10,656.21 of expenses. According to Dutrisac’s sworn under oath election statement, $5,656.21 of income minus $10,656.21 of expenses equals zero and a balanced campaign, when in reality, and at law, it equals a $5,000.00 deficit.
Dutrisac immediately and automatically forfeited office at 2pm on the March 28, 2011 primary period filing date because her campaign statement is not true and correct.
Dutrisac also admits she had more than $10,000.00 dollars in expenses in 2010 and she was required by MEA s. 78(5) to have her 2010 statement audited. She failed to have it audited and forfeited office for the second time on March 28, 2011 for this reason alone. Having a statement audited means she had even more expenses that she failed to report because having a statement audited by an auditor cost money which is an election campaign expense that must be reported.
For clarity, if you have more than $10,000.00 in contributions and less than $10,000.00 in expenses you must have your statement audited. If you have more than $10,000.00 in expenses and less than $10,000.00 in contributions you must have your statement audited. It is either or, and the candidate must include in their campaign statement the expense incurred for having the campaign statement audited.
This $5,000.00 deficit in 2010 carries over into the next 2014 election. This means even if Dutrisac could be a 2014 candidate, which is denied, she started the 2014 election with a deficit of $5,000.00.
Surplus and deficit
79. (1) A candidate has a surplus if the total credits exceed the total debits, and a deficit if the reverse is true.
Total debits
79.(3) For the purposes of subsection (1), the total debits are the sum of,
(a) the candidate’s expenses under section 67; and
(b) any deficit from a previous election campaign of the candidate if that campaign,
(i) related to an office on the same council or local board as the present campaign, and
(ii) was in the previous regular election or a subsequent by-election.
However Dutrisac’s 2014 election campaign statement is also fraudulent because she deliberately failed to carry over the $5,000.00 deficit and she fraudulently reports to have a balanced 2014 campaign when in reality, and at law; she now has a $6,584.96 deficit.
Dutrisac claims to have $1,684.96 in expenses for the 2014 election. She claims $100.00 in income which means she has a deficit of $1,584.96 for her 2014 election. And just like in 2010, according to Dutrisac’s sworn under oath election statement, $100.00 in income minus $1,684.96 in expenses equals zero and a balanced campaign when in reality, and at law; it equals a $1,584.96 deficit. Plus we must add to this $1,584.96 amount the $5,000.00 deficit that she failed to carry over from her 2010 election, thus, at law; she has now has a $6,584.96 deficit in 2014.
Since Dutrisac immediately and automatically forfeited office at 2pm on the March 28, 2011 primary period filing date, she was barred by operation of law from even being a candidate in the 2014 election.
And even if Dutrisac could be a candidate, which is denied, her 2014 campaign statement is fraudulent and she forfeited office again at 2pm on the March 27, 2015 primary period filing date.
Dutrisac further failed to fill out Box D and Schedule 1 of her 2014 statement.
See Dutrisac’s fraudulent 2014 election campaign statements below.
chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://www.greatersudbury.ca/sudburyen/assets/File/Evelyn%20Dutrisac%20-%20Councillor%20Ward%204(1).pdf
In the result, Dutrisac’s June 2017 vote against the downtown arena location is a nullity void ab initio as Dutrisac was not a city councillor when she voted.
Rene Lapierre claims he has a 2014 campaign surplus of $9.60 and refunded this money to himself.
Lapierre reported $5,720.60 of income on line 1A in Schedule 1. Line 1A articulates this amount must be reported in Box C and Lapierre failed to report it.
Lapierre falsely claims only $100.00 of income in Box C. This $100.00 is the nomination fee refund from the City Clerk.
Lapierre then falsely claims $100.00 of income on line C1 minus $5,620.60 of expenses on line C4 equals $5,720.60 on line D1 in Box D.
This incompetent then falsely claims $5,720.60 on line D1 in Box D minus zero (0) on line D2 in Box D equals a $9.60 surplus, which he refunded to himself.
In reality, Lapierre has $5,720.60 of income on line 1A in Schedule 1 (which must be reported in Box C); plus the $100.00 nomination fee refund from the Clerk; for a total of $5,820.60 in income in Box C line C1.
He reports $5,620.60 of expenses in Box C line C4.
Therefore $5,820.60 on income in Box C line C1 minus $5,620.60 of expenses in Box C line C4 equals a $200.00 surplus.
Lapierre swore under oath that he refunded himself $9.60 and falsely claimed a balanced campaign in Box D line D3.
However, there is $191.40 of surplus money remaining and Lapierre immediately and automatically forfeited office on March 27, 2015 for failing to give the Clerk the remaining $191.40 of surplus money as required by MEA s. 80(1)(b).
Additional penalties
80. (1) A candidate is subject to the penalties listed in subsection (2), in addition to any other penalty that may be imposed under this Act,
(b) if a document filed under section 78 shows on its face a surplus, as described in section 79, and the candidate fails to pay the amount required by subsection 79 (4) to the clerk by the relevant date;
Same
(2) In the case of a default described in subsection (1),
(a) the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant; and
(b) until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies.
79(4) If the candidate’s financial statement or supplementary financial statement shows a surplus and the election campaign period has ended at the time the statement is filed, he or she shall, when the statement is filed, pay the surplus to the clerk with whom the candidate’s nomination was filed, reduced by the amount of any refund under subsection (6).
Refund
(6) If a candidate who has a surplus or his or her spouse has made contributions to the election campaign, the candidate may, after the election campaign period ends but before filing the financial statement or supplementary financial statement, as the case may be, refund to himself or herself or to the spouse, as the case may be, an amount that does not exceed the lesser of,
(a) the relevant contributions;
(b) the surplus.
Any candidate who violates MEA subs. 80(1)(b) immediately and automatically forfeits office as subs 80(1)(b) expressly refers to subs. 79(4) and subs. 79(4) expressly refers to subs. 79(6).
MEA subs. 80(1)(b) immediately and automatically forfeits office as subs 80(1)(b) expressly refers to subs. 79(4) and subs. 79(4) expressly refers to subs. 79(6). As evidenced in subs. 79(6), Lapierre was permitted to refund himself an amount of money that did not exceed his $200.00 surplus.
Therefore Lapierre decided to refund himself $9.60 of the actual $200.00 surplus, however, Lapierre was statutorily required by operation of MEA ss. 79(4), 79(6) and 80(1)(b) to give the Clerk, on the March 27, 2015 primary period filing date, the remaining $191.40 of surplus money.
See Lapierre 2014 campaign statement on the link below.
chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://www.greatersudbury.ca/sudburyen/assets/File/Rene%20Lapierre%20-%20Councillor%20Ward%206.pdf
In the result, Lapierre forfeited office three years and one day before he voted as a Planning Committee member on March 28, 2018 to approve the rezoning of the Kingsway property.
Lynne Reynolds’ sworn under oath primary statement reports $5.512.22 in primary period income and $5,512.22 in primary period expenses, thus, Reynolds reports a balanced campaign.
Reynolds was refunded the $100.00 nomination fee before December 31, 2014 just like all 27 other qualified councillor candidates were refunded.
However Reynolds failed to report the $100.00 nomination fee refund as income on line 2 in Box C as she was statutorily required to do by operation of law.
Reynolds therefore does not have a balanced primary campaign as she fraudulent reports because she has a $100.00 surplus. Reynolds failed to give the Clerk the surplus and immediately and automatically forfeited office by operation of law on the March 27, 2015 primary period filing date.
Surplus and deficit
79. (1) A candidate has a surplus if the total credits exceed the total debits, and a deficit if the reverse is true.
Total credits
(2) For the purposes of subsection (1), the total credits are the sum of,
(a) the candidate’s contributions under section 66;
Total debits
(3) For the purposes of subsection (1), the total debits are the sum of,
(a) the candidate’s expenses under section 67; and
Surplus paid to clerk
(4) If the candidate’s financial statement or supplementary financial statement shows a surplus and the election campaign period has ended at the time the statement is filed, he or she shall, when the statement is filed, pay the surplus to the clerk with whom the candidate’s nomination was filed, reduced by the amount of any refund under subsection (6).
Refund
(6) If a candidate who has a surplus or his or her spouse has made contributions to the election campaign, the candidate may, after the election campaign period ends but before filing the financial statement or supplementary financial statement, as the case may be, refund to himself or herself or to the spouse, as the case may be, an amount that does not exceed the lesser of,
(a) the relevant contributions;
(b) the surplus.
Additional penalties
80. (1) A candidate is subject to the penalties listed in subsection (2), in addition to any other penalty that may be imposed under this Act,
(b) if a document filed under section 78 shows on its face a surplus, as described in section 79, and the candidate fails to pay the amount required by subsection 79 (4) to the clerk by the relevant date;
Same
(2) In the case of a default described in subsection (1),
(a) the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant; and
(b) until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies.
Municipal Act
Vacant seat
259 (1) The office of a member of council of a municipality becomes vacant if the member,
(g) forfeits his or her office under this or any other Act;
Reynolds also received a 2014 election campaign contribution from Zulich Enterprises as evidenced on line 4 of Table 2. Reynolds failed to declare her conflict of interest before voting against downtown and voting for the Zulich’s Kingsway location.
See Reynolds 2014 campaign statement on the link below.
chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://www.greatersudbury.ca/sudburyen/assets/File/Lynn%20Reynolds%20-%20Councillor%20Ward%2011.pdf
In the result, Reynolds June 2017 vote against the downtown arena location is a nullity void ab initio because at law Reynolds was not a city councillor when she voted.
Robert Kirwan is a special kinda stupid so it will take me 2 or 3 posts to cover this mathlete.
Kirwan has been extremely outspoken about how he is right and anyone opposing the arena moving to the Kingsway is wrong. However Kirwan has a demonstrated history of being wrong.
Kirwan swore under oath in his 2014 primary election financial campaign statement that he contributed $4,972.35 of cash to his own election campaign. However the $4,972.35 amount in Schedule 1 and the $4,872.35 amount in Box C Line 1 do not match and these sums are required to match. The $4,872.35 in Box C is wrong as it is $100.00 less than the $4,972.35 amount that Kirwan swore under oath he donated to his own campaign in Schedule 1.
chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://www.greatersudbury.ca/sudburyen/assets/File/Robert%20Kirwan%20-%20Councillor%20Ward%205.pdf
Line 1 of the income portion of Box C articulates that the $4,972.35 on Line 1A in Schedule 1 must also to be reported in Box C. However Kirwan incorrectly reports the wrong amount of $4,872.35 in Box C and not the correct Schedule 1 amount of $4,972.35. This mistake shows Kirwan is wrong and the error Kirwan made is Kirwan’s own mistake.
The $4,872.35 is the amount of cash Kirwan has in his campaign bank account after becoming a candidate. Kirwan paid the $100.00 nomination fee with campaign income before he was a candidate and before he had a bank account, but Kirwan donated $4,972.35 of total income to his own campaign.
The $100.00 refunded nomination fee has its own reporting Line in Box C. This $100.00 refund is income given to Kirwan by the Clerk and the One Hundred Dollars of cash income is in addition to the $4,972.35 of cash income Kirwan donated to his own campaign.
Therefore Kirwan’s Box C income is $4,972.35 plus the $100.00 nomination refund for a true and accurate total income of $5,072.35. However Kirwan incorrectly reports the wrong total income amount of only $4,972.35 on Line C1 in Box C. This calculation mistake shows Kirwan is wrong and the error Kirwan made is Kirwan’s own mistake.
As Kirwan actually has a total income of $5,072.35, and total expenses of $4,918.66, it means Kirwan had a $153.69 campaign surplus. However mistake happy Robert Kirwan incorrectly reports the wrong and incorrect surplus amount of $53.69 on Line D1 in Box D. This calculation mistake shows Kirwan is wrong and the error Kirwan made is Kirwan’s own problem.
Since Kirwan only refunded himself $53.69 of the actual $153.69 surplus, it means there is still a $100.00 of surplus money remaining. Therefore, like it or not, Kirwan immediately and automatically forfeited office March 27, 2015 for failing to give the remaining $100.00 surplus to the Clerk as statutorily required by operation of Municipal Elections Act (MEA) s. 80(1)(b).
Additional penalties
80. (1) A candidate is subject to the penalties listed in subsection (2), in addition to any other penalty that may be imposed under this Act,
(b) if a document filed under section 78 shows on its face a surplus, as described in section 79, and the candidate fails to pay the amount required by subsection 79 (4) to the clerk by the relevant date;
Same
(2) In the case of a default described in subsection (1),
(a) the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant; and
(b) until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies.
79(4) If the candidate’s financial statement or supplementary financial statement shows a surplus and the election campaign period has ended at the time the statement is filed, he or she shall, when the statement is filed, pay the surplus to the clerk with whom the candidate’s nomination was filed, reduced by the amount of any refund under subsection (6).
Refund
(6) If a candidate who has a surplus or his or her spouse has made contributions to the election campaign, the candidate may, after the election campaign period ends but before filing the financial statement or supplementary financial statement, as the case may be, refund to himself or herself or to the spouse, as the case may be, an amount that does not exceed the lesser of,
(a) the relevant contributions;
(b) the surplus.
For clarity, subs. 80(2)(a) is an Ontario Legislature issued double declaration wherein the Ontario Legislature declares two things. First, the Ontario Legislature declares that the elected candidate forfeits office. Second, the Ontario Legislature declares that the office is vacant. The office forfeiture declaration is decreed by statute at 2pm on the March 27, 2015 filing date. A declaration is defined as a formal statement on the existence of a legal state of affairs and the matter determined by a declaration becomes res judicata between Kirwan and the Ontario Legislature for all purposes and the judgment a binding precedent.
The fact that the longstanding Ontario Legislature MEA administrative office forfeiture penalties are imposed on candidates immediately and automatically by operation of law was reconfirmed in 2011 in Niagara Falls (City) v. Diodati 2011 ONSC 2180 (CanLII) at para 6 and 18.
[6] By way of a summary, I find that the original financial documents that were filed on March 24, 2011 clearly triggered the operation of s. 80(1) and (2) of the MEA. Therefore, on a strict reading of s. 80(2) of the MEA, Diodati forfeits the office of mayor and the office is deemed to be vacant.
[18] Therefore, based on Diodati's original filing of the financial documents on March 24, 2011, Diodati forfeits the office of mayor pursuant to s. 80(2)(a), and he is ineligible to be elected to any municipal office until after the next regular election has taken place pursuant to s. 80(2)(b). There is no specific provision in the MEA for relief from this forfeiture and penalty.
This immediate and automatic Ontario Legislature administrative office forfeiture penalty being decreed by statute was reconfirmed again in 2017 in Giannini v City of Toronto http://canlii.ca/t/h07hw at 16 and 17.
[16] On March 31, 2015, the Clerk of the City of Toronto sent Ms. Giannini a Notice advising her of her default and of the penalty that applies pursuant to s. 80(2) of the MEA (ineligibility to run or be appointed until after the next election).
[17] Ms. Giannini is not the only candidate who is in default of her obligations under the MEA. Of 688 candidates in the 2014 Toronto municipal and school board election, 101 candidates are in default and subject to the automatic penalty of s. 80(2) of the MEA. A further 33 candidates sought and obtained an extension of the filing deadline before the deadline.
Therefore, any candidate, including incompetent Robert Kirwan, who violates MEA subs. 80(1)(b) immediately and automatically forfeits office as subs 80(1)(b) expressly refers to subs. 79(4) and subs. 79(4) expressly refers to subs. 79(6).
As evidenced in subs. 79(6), Kirwan was permitted to refund himself an amount of money that did not exceed his $153.69 surplus. Kirwan was not required to refund himself the surplus even though he had one, but subs. 79(6) gives him the option to do so. Kirwan is not required to refund himself the total amount of the surplus either, as subs. 79(6) articulates that he can refund himself an amount from the surplus, but the refund amount cannot exceed the total surplus amount.
Therefore Kirwan decided to refund himself $53.69 of the actual $153.69 surplus and $53.69 did no exceed the $153.69 surplus so he did nothing wrong. However, Kirwan was statutorily required by operation of MEA ss. 79(4), 79(6) and 80(1)(b) to give the Clerk, on the March 27, 2015 primary period filing date, the remaining $100.00 of surplus money that Kirwan did not refund himself as he decided to only refund himself an amount of the surplus that was less than the total surplus amount of $153.69.
In the result, Kirwan immediately and automatically forfeited office March 27, 2015 and is statute barred from being a 2018 candidate for failing to give the Clerk the remaining $100.00 of the $153.69 surplus.
Kirwan cannot overcome the evidence in his own sworn under oath statement, which is that he actually has $5,072.35 of total income; there is a $153.69 surplus; he refunded himself $53.69 of the $153.69 surplus; and he failed to give the Clerk the remaining $100.00 of surplus money.
Despite not being competent enough to correctly calculate and fill out a tiny 3 page financial statement to save his own election, Kirwan wants everyone to believe he correctly calculated the 100 million dollar arena construction and operating costs over a 30 year period.
However, given Kirwan’s demonstrated history of being wrong, even when swearing documents under oath to be true, correct and accurate, there is no reason to believe mistake happy, and former city councillor, Robert Kirwan.
Not one person even donated even one cent to Kirwan's 2014 councillor election campaign.
In Box C on page 2 Kirwan claims he incurred $4,918.66 in expenses before Election Day. He claims he donated $4,872.35 of cash to his own campaign before Election Day. Therefore he was going to run a deficit $46.31 as of December 31, 2014. ($4,918.66 expenses minus $4,872.35 income equals $46.31 deficit)
chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://www.greatersudbury.ca/sudburyen/assets/File/Robert%20Kirwan%20-%20Councillor%20Ward%205.pdf
However, Kirwan ended up with a $53.69 surplus only because he was refunded the $100.00 nomination fee after Election Day and in late December but before December 31, 2014.
All cash contributions must be deposited into his campaign bank account. All expenses other than the nomination fee must be paid out of his campaign bank account.
Duties of candidate
69. (1) A candidate shall ensure that,
(a) one or more campaign accounts are opened at a financial institution, exclusively for the purposes of the election campaign and in the name of the candidate’s election campaign;
(b) all contributions of money are deposited into the campaign accounts;
(c) all payments for expenses, except for a nomination filing fee, are made from the campaign accounts;
Kirwan was not allowed to incur ANY expenses after Election Day except for expenses listed below and he never incurred any of these expenses.
Maximum amount
76(4) During the period that begins on the day a candidate is nominated under section 33 and ends on voting day, his or her expenses shall not exceed an amount calculated in accordance with the prescribed formula.
Exception
(5) Subsection (4) does not apply in respect of expenses described in paragraphs 3 and 5 to 8.2 of subsection 67 (2).
67(2) 3. Audit and accounting fees.
…
5. The cost of holding fund-raising functions.
6. The cost of holding parties and making other expressions of appreciation after the close of voting.
7. Expenses relating to a recount.
8. Expenses relating to proceedings under section 83 (controverted elections).
8.1 Expenses relating to a compliance audit.
8.2 Expenses that are incurred by a candidate with a disability, are directly related to the disability, and would not have been incurred but for the election to which the expenses relate.
Therefore all of Kirwan’s $4,918.66 in expenses was incurred before Election Day. The $100.00 nomination fee expense is not paid for out of Kirwan’s campaign bank account as evidenced in s. 69(1)(c). Therefore, Kirwan only had $4,818.66 of expenses that came out of his bank account; and not $4,918.66.
However, Kirwan only had $4,772.35 in his bank account. This is so because he reports $4,872.35 in total cash contributions but he paid the $100.00 nomination fee in cash before he became a candidate and before he had a campaign bank account therefore Kirwan only had $4,772.35 in his bank account.
This means Kirwan did not pay his $4,818.66 in expenses out of his campaign bank account as required by s. 69(1)(c) because he only had $4,772.35 in his bank account before Election Day.
The $100.00 nomination fee was only refunded to Kirwan after Election Day (in late December 2014) and after he already incurred the $4,818.66 in expenses. Kirwan claims that before he received the $100.00 nomination refund in late December, he was running a deficit of $46.31. This is not possible because none of Kirwan’s pre-Election Day expenses were fronted to him by Canada Post ($2,895.96), brochures ($1,908.57), and phone Internet ($14.13) where he could just pay these expenses months later and after Election Day and in late December.
Claiming a $46.31 deficit before receiving the nomination fee refund in December means Kirwan made a partial payment towards one of these three expenses from his bank account before Election Day. This is so because he claims he was only $46.31 short of paying off the total expense amount of $4,818.66 before he received the $100.00 nomination refund in December which than gave him a $53.69 surplus which he then refunded to himself.
Each candidate must file election campaign financial statements in prescribed form. The Form is created by the Minister responsible under MEA subs. 95(1)(c). The word “prescribed” is defined in MEA s. 1 and it means by regulation. As the Form is created by regulation it is substantive law and all information requested by the Minister in the Form must be provided by candidates truthfully and accurately. Moreover, in accordance with Legislation Act subs. 34(2); the Form is official law.
Same
34.(2) A regulation that is filed with the Registrar of Regulations under Part III (Regulations) or a predecessor of that Part is official law.
In the result, since Kirwan’s campaign statement is not true and accurate in accordance with the 8 requirements of s.78, Kirwan forfeited office on the March 27, 2015 primary period filing date and his 2017 vote against Option 1 (building the arena downtown) is a nullity void ab initio as Kirwan was not a city councillor at the time he voted.
Since six City Council members forfeited office and are not City Council members by operation of law; each of their June 2017 votes on the arena location are a nullity void ab initio.
This means the lawfully valid recorded vote for the downtown arena location won by a 4-2 vote.
Gerry Montpellier correctly declared a conflict of interest at the start of the June 2017 vote. Thus he did not refuse to vote despite being present at the meeting. Municipal Act s. 246(2) articulates that a council member who is at a meeting, and who fails to vote, despite being eligible to vote, is declared by operation of law to have voted in the negative (in other words voted no).
However, members who declare a conflict of interest, and who are present at the meeting, and who do not vote, are not deemed to have refused to have vote because they cannot vote due to their conflict on interest. City Council had a quorum when the vote was recorded and Montpellier not voting despite being present at the meeting does not change the legally valid binding outcome of the 4-2 vote in favour of building the arena downtown.
As City Council conducted a legally binding recorded vote in June 2017, and legally selected the downtown location for construction of the arena by a 4 to 2 vote, there is no legal reason, actual or apparent, that City Council continues to claim they are building the arena on the Kingsway.
And there is no legal foundation in law for City Council to have already spent 1.2% of the 100 million dollar project on the Kingsway location when the downtown location won the vote.
City manager Catherine Matheson said the site-clearing contract has a cancellation clause, and said the “line-by-line” report on spending will be on the city's website sometime tomorrow, but said so far, 1.2 per cent of the $100-million budget has been spent.
https://www.sudbury.com/local-news/council-clashes-over-ked-for-last-time-ahead-of-election-1062095
The explicit Ontario Legislature administrative office forfeiture provision flows from operation of law and there is no Clerk discretion as the rationale behind the forfeiture is that the candidate is no longer entitled to office. The automatic office forfeiture administrative penalty is already deemed constitutionally valid by the Supreme Court of Canada.
See Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876.
The intervener in Harvey supra was the Attorney General for Ontario who argued:
“The automatic removal logically furthers the objective of preserving the integrity of the election process. It is a straightforward method whereby the electorate is assured that the election process will be fair. The provision is meant to protect the public not only from a particular offender, but from offenders in general. In other words the legislature is aiming at both general and specific deterrence”.
See also Harvey v. New Brunswick (Attorney General), 1993 (NBCA) http://canlii.ca/t/1lk9n; Harvey v. New Brunswick (Attorney General), 1993 (NBCA) http://canlii.ca/t/1qwx0; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319; and R. v. Jarvis, 2002 SCC 73 (CanLII), 2002 SCC 73, [2002] 3 S.C.R. 757.
The Ontario Legislature automatic office forfeiture falls within the historical privilege of the legislature and is immune from judicial review and the doctrine of judicial immunity restricts any court’s authority to inquire into the content of the office forfeiture.
The MEA provides no route of appeal regarding the office forfeiture and appeals are creatures of statute.
A court cannot provide relief from the office forfeiture under the Court of Justice Act s. 98 because the penalty is imposed by the Ontario Legislature by operation of statute.
Like all penalties imposed by operation of law, no appeal is provided for and relief of the office forfeiture penalty cannot be obtained from any court at any time under any Act. The principles of equity and justice are universal in the common-law courts of the world and the rule is that equity does not aid a party at fault.
This maxim has been variously expressed:
- No one is entitled to the aid of a court of equity when that aid has become necessary through his or her own fault.
- Equity does not relieve a person of the consequences of his or her own carelessness.
- A court of equity will not assist a person in extricating himself or herself from the circumstances that he or she has created.
- Equity will not grant relief from a self-created hardship.
In R. v. Can, Nor. Ry., 64 S.C.R. 264, affirmed [1923] A.C. 714 (P.C.) on the link below is binding authority to the effect that the court cannot relieve against statutory forfeiture.
http://www.canlii.org/en/ca/scc/doc/1922/1922canlii31/1922canlii31.pdf
The Chief Justice in R. v. Can supra expresses the opinion that if the power given to the court to relieve against penalties applied to statutory penalties, this would, in effect, be giving an authority to enable the court to repeal statutes. Thus the jurisprudence as confirmed by the Supreme Court of Canada is that there is no “forfeiture” from which the court under the provisions of the CJA can grant relief.
MEA subs. 80(3) expressly articulates what certain provisions and factors must be taken into account in the Clerk’s review process of the candidate’s financial statement and these extremely detailed provisions set out the determinative factors that must be complied with at all times, no exception.
Once a Clerk observes or is made aware of defects in the statement, the inquiry stops there and the Clerk sends the Ontario Legislature default notice declaration to candidates and City Council.
Notice of default
80(3) In the case of a default described in subsection (1), the clerk shall notify the candidate and the council or board in writing that the default has occurred.
The courts already determined clerks are statutorily obligated to send Ontario Legislature default notice declarations to candidates when defaults are plain in the financial reports.
Under s. 80, the clerk is obliged to monitor compliance and to send a notice of default to the candidate where the defaults are plain in the financial reports or where the reports have not been filed as required under the Act.
See Jackson v. Vaughan (City), 2009 (ON SC) at para. 27, http://canlii.ca/t/22rg2
The office being vacant is also reconfirmed in Municipal Act s. 259(1)(g) as the words “any other Act” in s. 259(1)(g) include the MEA.
Vacant seat
259.(1) The office of a member of council of a municipality becomes vacant if the member,
(g) forfeits his or her office under this or any other Act;
Subsection 80(2) is an Ontario Legislature issued double declaration wherein the Ontario Legislature declares two things. First, the Ontario Legislature declares that the elected candidate forfeits office. Second, the Ontario Legislature declares that the office is vacant. The declaration is issued by operation of law by the Ontario Legislature at 2pm on filing date.
See Somerleigh v. Polhill, 2006 CanLII 12700 (ON CA), http://canlii.ca/t/1n30m at para 16 for an example of another double declaration provision.
It is essential to also bear in mind that the Court of Appeal stated that because the office forfeiture occurred under the MEA, having the candidate removed under Municipal Act s. 265 does not apply as the office forfeiture is decreed by statute and the vacant office declaration has already been issued by the Ontario Legislature by operation of statute under MEA s. 88.23(2)(a).
See Audziss v. Santa 2003 CanLII 35121 (ON CA), 223 D.L.R. (4th) 257 at paras.10 and 20.
All candidates were notified in writing twice in advance by the Clerk of the campaign statement filing requirements and penalties for failure to comply with s. 78.
Notice of penalties
33.1 The clerk shall, before voting day, give to each person nominated for an office notice of the penalties under subsections 80 (2) and 92 (5) related to election campaign finances.
Notice by clerk
78.(6) At least 30 days before the filing date, the clerk shall give every candidate whose nomination was filed with him or her notice, by registered mail,
(a) of all the filing requirements of this section; and
(b) of the penalties set out in subsections 80 (2) and 92 (5).
Deemed time of receipt
(6.1) The notice is deemed to have been received on the fifth day after mailing.
The Clerk’s failure to send the declaration does not save them from forfeiting office nor does it negate or revoke the Ontario Legislature’s default declaration that has already been issued by Ontario Legislature by operation of law. By failing to send the default notice declarations the Clerk committed three neglect of duty corrupt practice penal offences under MEA subs. 90(6) as it was her legal duty to send them.
Neglect of duty
90(6) A clerk or other election official who wilfully fails to perform a duty imposed by this Act is guilty of an offence that constitutes a corrupt practice.
Ontario jurisprudence already determined that a person who commits a corrupt practice is deemed to be a corrupt person, pure and simple.
See Arnold v. Harris 1993 CanLII 5553 (ON SC), (1993), at para. 46.
In fact, Sudbury’s corrupt City Clerk Caroline Hallsworth sent the Ontario Legislature’s default notice declaration to numerous 2014 candidates who did not win the election (Ron Dupuis, John Rodriguez, Richard Majkot), but deliberately failed to send it to candidates who actually won the election and then forfeited office, viz. Bigger, Dutrisac, Landry-Altmann, Reynolds, Lapierre and Kirwan.
Moreover, a bylaw is permanent and is the law until it is repealed. A resolution is not law and is short term and has a shelf life that expired the same day the 2010 to 2014 City Council term expired, which was December 1, 2014.
Four-year term
6. (1) The term of all offices to which this Act applies is four years, beginning on December 1 in the year of a regular election.
Therefore, there has been no resolution passed regarding the casino issue because any resolution Matichuk signed expired on December 1, 2014. The reason the City cannot find the resolution is because it expired and the City shredded the document because no casino was built before the resolution expired December 1, 2014.
There is also a distinction between a municipality who had a slots facility when O. Reg. 81/12 came into effect and a municipality who did not have a slot facility.
Since Sudbury had a slot facility it had an obligation to hold a referendum under O. Reg. 347/00 to expand gaming and Sudbury must still hold a referendum under the revoked O. Reg. 347/00 because Legislation Act s. 51 articulates that O. Reg. 347/00 is still in force in Sudbury for purposes of the obligation to hold a referendum under O. Reg. 347/00.
Effect of repeal and revocation
51 (1) The … revocation of a regulation does not,
(a) affect the previous operation of the… revoked … regulation;
(b) affect … obligation … that came into existence under the … revoked … regulation;
(d) affect an … proceeding or remedy in respect of,
(i) a … obligation … described in clause (b), or
Same
(2) An … proceeding or remedy described in clause (1) (d) may be commenced, continued and enforced as if the … regulation had not been … revoked.
O. Reg. 347/00 deals with expanded gaming, not the location of the gaming site, which O. Reg. 81/12 deals with, thus these two regulations deal with distinctly different subject matters.
A municipality who did not have a slot facility when O. Reg. 81/12 came into force does not have to hold a referendum under O. Reg. 347/00 like Sudbury does because O. Reg. 347/00 does not apply to that municipality because that municipality did not have a slot facility whereby they could hold a referendum to ‘expand gaming'.
Lyin’ Brian Bigger – Special Report
01] A candidate’s primary election campaign period (hereinafter primary period) ends on December 31 in the year of a regular election, however, a candidate who has a deficit on December 31 may extend their campaign period under subs. 88.24(1) 4.
Election campaign period for candidates
88.24 (1) For the purposes of this Act, a candidate’s election campaign period for an office shall be determined in accordance with the following rules:
1. The election campaign period begins on the day on which he or she files a nomination for the office under section 33.
2. The election campaign period ends on December 31 in the case of a regular election…
4. Despite paragraphs 2 and 3, if the candidate has a deficit at the time the election campaign period would otherwise end and the candidate notifies the clerk in the prescribed form on or before December 31 in the case of a regular election and 45 days after voting day in the case of a by-election, the election campaign period is extended and is deemed to have run continuously from the date of nomination until the earliest of,
i. June 30 in the year following the regular election,
…
iii. the day he or she is nominated in a subsequent election for an office on the council or local board in respect of which the deficit was incurred,
iv. the day the candidate notifies the clerk in writing that he or she will not accept further contributions, and
v. the day A equals the total of B and C, where,
A = any further contributions,
B = the expenses incurred during the extension of the election campaign period, and
C = the amount of the candidate’s deficit at the start of the extension of the election campaign period.
02] The extended supplementary campaign period (hereinafter supplementary period) ends on June 30 in the year following the regular election OR as soon as the candidate collects enough money in the supplementary period to eliminate their primary period deficit and any new expenses incurred in the extended supplementary period. In other words, the day “A” equals the total of “B” and “C” as set out in subs. 88.24(1) 4 v as evidenced above.
03] If a candidate collects enough money in the extended supplementary period to eliminate their primary period deficit and any new supplementary incurred expenses, the campaign period ends. In other words, if the money needed to eliminate the deficit and new expenses is collected in February then the candidate’s campaign period ends in February and not on June 30.
04] In accordance with R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, offences in Canada are classified to be mens rea, strict liability or an absolute liability offence. Election campaign finance offences are regulatory offences and R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), 3 S.C.R. 154 a leading Supreme Court of Canada case on the distinction between "true crime" and regulatory offences. The Ontario Court of Appeal has determined that based on R. v. Jarvis, 2002 SCC 73 (CanLII), [2002] 3 S.C.R. 757, it is “plain” that the prosecution process, which is aimed at securing compliance with the rules concerning election campaign finances, is regulatory in nature rather than criminal or quasi-criminal.
See Jackson v. Vaughan (City), 2010 ONCA 118 (CanLII) http://canlii.ca/t/281w6 para. 40.
05] Language used by the Municipal Elections Act (MEA) determines offence classifications. As sections in this matter use the words “is guilty of an offence” and are regulatory in nature, Ontario courts determined that other than strict liability corrupt practice offences, the offences noted herein are absolute liability offences. There is no relevant mental element; it is no defence that the accused is without fault; a person only need prove the accused was responsible for the prohibited act; and the accused can only challenge the evidence against them which is their own sworn under oath campaign statement.
See R. v. Tridico, 2010 ONCA 184 at paras. 11 and 31 http://canlii.ca/t/28h7m; Arnold v. Harris 1993 CanLII 5553 (ON SC); and Jackson v. Vaughan (City), 2010 ONCA 118 (CanLII) http://canlii.ca/t/281w6 para. 40
06] MEA subs. 88.8(2) (shall not) and s. 94 (is guilty) make it an absolute liability offence for a candidate to collect contributions outside of a candidate’s campaign period, and, it is also an offence for a contributor to make a contribution to a candidate outside of their campaign period.
Only during election campaign
88.8(2) A contribution shall not be made to or accepted by a candidate or an individual acting under the candidate’s direction outside the candidate’s election campaign period described in section 88.24.
General offence
94 A person who contravenes any provision of this Act or a regulation under this Act or a by-law passed by a municipality under this Act is guilty of an offence.
07] If the candidate’s campaign period has ended a contributor is not entitled to make a contribution to that candidate because subs. 88.8(7) and s. 94 make it an absolute liability offence for a candidate to accept a contribution from a contributor who is not entitled to make the contribution.
Contributors
88.8(7) A contribution may be accepted only from a person or entity that is entitled to make a contribution.
General offence
94 A person who contravenes any provision of this Act or a regulation under this Act or a by-law passed by a municipality under this Act is guilty of an offence.
08] Once a candidate collects enough money to eliminate their primary period deficit and any new expenses incurred in the extended supplementary period no further contributions can be collected by the candidate thus there will never be a surplus in the extended supplementary period.
09] If a candidate collects money outside of their campaign period the candidate has a statutory duty under subs. 88.22(1)(o) to return the money to the contributors.
Duties of candidates
88.22(1)(o) a contribution of money made or received in contravention of this Act or a by-law passed under this Act is returned to the contributor as soon as possible after the candidate becomes aware of the contravention;
10] Should a candidate fail to return the money to the contributors the candidate has a statutory duty under subs. 88.22(1)(p) to give the illegally collected money to the City Clerk (hereinafter the Clerk) as this money becomes the legal property of the municipality in accordance with subs. 88.22(4).
Duties of candidates
88.22 (1) A candidate shall ensure that,
(p) a contribution not returned to the contributor under clause (o) is paid to the clerk with whom the candidate’s nomination was filed;
Contributions paid to clerk
88.22 (4) Contributions paid to the clerk under clause (1) (p) or (q) become the property of the local municipality.
11] However the “as soon as possible” saving clause language in subs. 88.22(1)(o) has a limitation period that ends at 2pm on the last Friday in March in the year following the regular election for purposes of a primary period, and, at 2pm on the last Friday in September in the year following a regular election for purposes of a supplementary period.
12] This is so as subs. 88.22(1)(m); 88.23(1); subs. 88.25(1); (4) and (5) statutorily require candidates file their campaign financial statements before 2pm on the filing dates set out in s. 88.30 and subs. 88.22(1)(p); 88.22(4) and 88.31(4) statutorily require candidates give the Clerk the surplus before 2pm on the filing dates if the candidate did not give the illegally collected money back to the contributors before 2pm on the filing dates in accordance with subs. 88.22(1)(o).
Duties of candidates
88.22 (1) A candidate shall ensure that,
(m) financial filings are made in accordance with sections 88.25 and 88.32;
Effect of default by candidate
88.23 (1) A candidate is subject to the penalties listed in subsection (2), in addition to any other penalty that may be imposed under this Act,
(a) if the candidate fails to file a document as required under section 88.25 or 88.32 by the relevant date;
Candidates’ financial statements, etc.
88.25 (1) On or before 2 p.m. on the filing date, a candidate shall file with the clerk with whom the nomination was filed a financial statement and auditor’s report, each in the prescribed form, reflecting the candidate’s election campaign finances,
(a) in the case of a regular election, as of December 31 in the year of the election;
Supplementary financial statement and auditor’s report
(4) If the candidate’s election campaign period continues during all or part of the supplementary reporting period, the candidate shall, before 2 p.m. on the supplementary filing date, file a supplementary financial statement and auditor’s report for the supplementary reporting period.
Same
(5) If a candidate’s election campaign period ends as described in paragraph 3 of subsection 88.24 (1) and the election campaign period continued during all or part of the supplementary reporting period, the candidate shall, before 2 p.m. on the supplementary filing date, file a supplementary financial statement and auditor’s report for the period commencing on the day the candidate’s election campaign period ends and including the six-month period following the year of the election.
Filing date
88.30 (1) The filing date for documents that are to be filed under section 88.25 or 88.29 is the following:
1. In the case of a regular election, the last Friday in March following the election.
Supplementary filing date
(2) The supplementary filing date for documents that are to be filed under section 88.25 or 88.29 is the following:
1. In the case of a regular election, the last Friday in September in the year following the election.
13] There is no MEA provision allowing candidates to correct a financial statement or file a new statement after the filing dates have past. If a candidate could refund a surplus to the contributor after the filing date already past, the income amount changes and candidate is not given an opportunity under the MEA to file a new corrected statement.
14] For example, a candidate might have had a surplus that they refunded to themselves when they filed the statement at 1:59pm on the filing date, and, if a candidate gives cash back to a contributor after 2pm on the filing date (or gives the cash to the Clerk after the 2pm time on the filing date) the candidate could now have a deficit, but the statement reports a balanced campaign. Deficits carry over into future elections therefore statements must be accurate. In other words, prior to 2009 candidates could correct errors however since the Legislature enacted the Good Government Act in 2009 there was no longer a second chance to get it right the first time as this Act made amendments to the MEA including, but not limited to, removing the curative proviso formerly embodied in s. 80 that permitted candidates time to fix errors and/or file their financial statements late. The MEA was amended in 2016 to once again allow a candidate to file up to 30 days late by paying a fee (s. 88.25(9)), and, to file a corrected statement (s. 88.25(3)) but only if a corrected statement is filed on or before the filing date. However the maxim expressio unius est exclusio alterius stands for the proposition that where a statute specifies one exception to a general rule, other exceptions are excluded. Therefore, a candidate can still not fix errors in a statement or file a new or corrected statement after the filing date. Thuse, despite any inept court ruling to the contrary since 2009, the immediate and automatic Ontario Legislature administrative statutory office forfeiture was decreed by statute and existed in the MEA without recourse between 2009 and 2016.
Error in financial statement
88.25(3) If an error is identified in a filed financial statement, the candidate may withdraw the statement and, at the same time, file a corrected financial statement and auditor’s report on or before the applicable filing date under section 88.30.
Cessation of penalty
(9) The penalties set out in subsection (2) for a default described in clause (1) (a) do not take effect if, no later than 2 p.m. on the day that is 30 days after the applicable day for filing the document, the candidate files the relevant document as required under section 88.25 or 88.32 and pays the clerk a late filing fee of $500.
15] The nemo enim aliquam partem recte intelligere possit, antequam totum iterum atque iterum perlegerit rule has been part of the common law for over 400 years and it literally means: no one can understand a part before reading and rereading the whole in full. Therefore, the words “as soon a possible” in subs. 88.22(1)(o) cannot be read to operate in a vacuum oblivious to its inter-related provisions. The analysis of subs. 88.22(1)(o) must be read concurrently and in conjunction with all the other filing provisions as a functioning whole within their statutory context. These filing provisions create the limitation period that the phase “as soon as possible” is governed by and the “as soon as possible” limitation period statutorily ends at 2pm on the filing dates.
16] In Tolofson v. Jensen 1994 CanLII 44 (S.C.C.), [1994] 3 S.C.R. 1022 it was held that limitation periods are substantive and not procedural as they are “determinative of the rights of both parties”. Therefore, it cannot be regarded as an unimportant technicality that there is no MEA provision permitting candidates to return money to contributors or to the Clerk after the filing dates have past just to avoid Ontario Legislature administrative penalties. If returning money after filing dates was intended the Legislature is required to say so expressly with sufficient clarity and the Legislature did not do so despite amending the Act in 2016. Thus the “as soon as possible” clock is ticking once the money is collected and the statutorily imposed filing date dead line limitation period to return the money or give the money to the Clerk is established by an Act of the Legislature, not a rule of court, with the result being that it cannot be abridged by the Clerk or the court.
See Cheong v. Ontario (Minister of Finance), [2004] O.J. No. 378 (C.A.) at para. 34 and 35, citing Stoddart v. Watson, 1993 CanLII 59 (SCC), [1993] 2 S.C.R. 1069 at para. 15; and Pasquale v. Rodrigo et al. 1985 CanLII 2102 (ON SC), (1985), 53 O.R. (2d) 123 (Ont. Dist. Ct.).
17] MEA subs. 88.31(6) incorrectly articulates that a candidate can refund themselves or their spouse surplus money from a supplementary campaign period if the candidate or their spouse made a contribution to the candidate’s campaign.
Treatment of surplus and deficit
88.31 (1) A candidate or registered third party has a surplus if the total credits exceed the total debits, and a deficit if the reverse is true.
Total credits
(2) For the purposes of subsection (1), the total credits are the sum of,
(a) the contributions under section 88.15;
(b) any amounts of $25 or less that were donated at fund-raising functions;
(c) any amounts of $25 or less for goods or services that were sold at fund-raising functions;
(d) interest earned on campaign accounts; and
(e) revenue from the sale of election materials.
Total debits
(3) For the purposes of subsection (1), the total debits are the sum of the expenses under section 88.19.
Surplus paid to clerk
(4) If the financial statement or supplementary financial statement filed with the clerk shows a surplus and the campaign period has ended at the time the statement is filed, the candidate or registered third party shall, when the statement is filed, pay the surplus to the clerk, reduced by the amount of any refund under subsection (6).
Refund
(6) If a candidate or registered third party who has a surplus has made contributions to the campaign or, in the case of an individual, if his or her spouse has made contributions to the campaign, the candidate or registered third party may, after the campaign period ends but before filing the financial statement or supplementary financial statement, as the case may be, refund to the candidate or registered third party or to the spouse, as the case may be, an amount that does not exceed the lesser of,
(a) the relevant contributions;
(b) the surplus.
18] However this is impossible to do and not permitted for two legal reasons.
19] First, it is impossible for a candidate to have a supplementary surplus because a candidate is not permitted to collect money after their campaign period has ended.
(See subs. 88.8(2), 88.8(7) and s. 94).
20] The supplementary period ends once the candidate collects enough money to eliminate their primary period deficit and any new expenses incurred in the extended supplementary period therefore there can never be a supplementary surplus.
(See subs. 88.24(1) 4 v = The day “A” (new contributions) equals the total of “B” (any new incurred supplementary period expenses) and “C” (the primary period deficit).
21] For example, even during a large fundraiser a refundable surplus will never apply. Assume I have a $1,010.10 primary period deficit and extend my campaign period. I hold a fundraiser on January 5 in the year following the election. I incur $1,404.58 in extended supplementary period expenses. In accordance with subs. 88.24(1) 4 v, my campaign period ends when I collect $2,414.68. Subsections 88.8(2); 88.8(7) and s. 94 make it an offence for me to collect more money once my campaign period ends. It is an offence for me to collect more than $2,414.68. If at the end of the night on my fundraiser I realize I raised $11,739.00 at the fundraiser, which is $9.324.32 more than I was legally entitled to collect, subs. 88.22(1)(o) requires me to give the extra $9,324.32 back to contributors. I am required by subs. 88.22(1)(f) and (g) to issue receipts for contributions. I know who the contributors are because I issued receipts. I can figure out how many contributors gave me more than the $2,414.68 that I needed to eliminate my primary deficit and new supplementary period expenses. If I do not give the extra $9,324.32 back to contributors by 2pm on the filing date, subs. 88.22(1)(p) requires me to give the $9,324.32 to the Clerk. Subsection 88.22(4) articulates the $9,324.32 becomes the legal property of the City. Subsection 88.31(4) requires me to give the Clerk the $9,324.32 on the filing date. If I do not give the $9,324.32 back to contributors before 2pm on the filing date I commit an offence. If I do not give the $9,324.32 surplus to the Clerk before 2pm on the filing date I commit a second offence. The MEA provisions evidence that there will never be a supplementary period surplus even during a one time large fundraiser that a candidate is capable of refunding to themselves or their spouse. Bear in mind, as explained below, Sudbury Mayor Brian Bigger did not hold a supplementary period fundraiser, but he instead just continued campaigning for weeks or months after his campaign period ended to collect an additional $9,324.32 in cash and his limitation period to return the illegally collected money now, or give it to the Clerk now, has elapsed.
22] Secondly, Canada is part of the common law world and in the common law world a person cannot profit off an illegal wrong by committing an offence then financially benefit from the offence committed. The ex turpi principle in Hall v. Hebert, 1993 CanLII 141 (SCC), [1993] 2 S.C.R. 159 prohibits anyone from profiting off its own wrong and the maxim nullus commodum capere potest de injuriâ suâ propriâ that no one can profit by their own wrong or benefit from its wrongful act dates back to the 1800s. Candidates cannot commit a MEA offence of illegally collecting money outside of their supplementary period in violation of subs. 88.8(2), 88.8(7) and s. 94 then refund themselves or their spouse the illegally collected money under subs. 88.31(6).
23] The purpose of a supplementary period is to eliminate a primary period deficit; not turn a profit or recoup your own or spouse contribution. Supreme Court of Canada common law already determined an Act must be read and interpreted as a whole and in its totality to determine its proper context and application. Each provision may not be read in isolation and every provision must be construed with reference to the other provisions of the Act and their context and when two provisions in an Act conflict the more restrictive provision prevails and applies.
24] Subsection 88.31(6) cannot be read to operate in a vacuum oblivious to its inter-related provisions. The analysis of subs. 88.31(6) and subs. 68(1) 4 v; 88.8(2); 88.8(7) and s. 94 must be read concurrently and in conjunction with one another as a functioning whole within their statutory context.
25] Thus when the MEA is interpreted in context and as a whole, as it is required by law to be interpreted, subs. 88.31(6) conflicts with subs. 68(1) 4 v; 88.8(2); 88.8(7) and s. 94 and Supreme Court of Canada common law dictates that subs. 68(1) 4 v; 88.8(2); 88.8(7) and s. 94 prevail over subs. 88.31(6).
26] Therefore the supplementary period surplus refund referred to in subs. 88.31(6) has no force or effect because it is impossible to ever come into play due to the operation of subs. 68(1) 4 v, 88.8(2); 88.8(7) and s. 94.
27] While subs. 88.31(6) permits a candidate to refund themselves or their spouse some of a surplus this section only applies to a primary period surplus and does not apply to a supplementary period.
28] For clarity, the MEA allows a candidate to collect as much money as they can in a primary period which could generate a surplus, but they cannot collect as much money as they can in a supplementary period because the MEA articulates that a supplementary period ends when the candidate collects an amount of money that equals their primary period deficit and any new incurred expenses in their supplementary period.
29] In Re Rizzo and Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, Iacobucci J. made the following comments pertaining to the purposive analysis in statutory interpretation:
…It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra., [Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)] an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, or if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp.378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile [Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p.88)].
30] In the result, the language in subs. 88.31(6) allowing a candidate to refund themselves a supplementary campaign period surplus that was illegally collected after a supplementary period ends, and while committing a provincial penal offence, is an oversight by the government and prima facie void ab initio due to its absurd result. Legislation is not intended to produce absurd consequences and it is considered absurd for the Legislature to contradict itself or to act in a self-defeating way.
31] For example, a Legislature would not go to the trouble of enacting rules that cannot be enforced or whose enforcement would tend to defeat the very purpose for which they were enacted. Therefore, according to the absurdity rule, interpretations which result in irrational, unjust or unacceptable consequences are rejected as absurd. In Re Rizzo & Rizzo Shoes Ltd., supra at para. 27 the Supreme Court of Canada also said:
“It is a cardinal principle of statutory interpretation that legislation should be read and interpreted in a way that gives effect to its purpose”.
32] Therefore, as it is self-evident that there is no ambiguity in subs. 68(1) 4 v; 88.8(2); 88.8(7) and s. 94; the words “or supplementary financial statement, as the case may be” in subs. 88.31(6) create an absurd result and must be repealed from the Act and the section must make clear it only applies to a primary period surplus.
33] The same principle applies to a registered third party advertiser and in every by-election supplementary campaign period.
34] For your information, in the 2014 election, Liberal Sudbury Mayor Brian Bigger illegally collected $9,324.32 in cash contributions after his supplementary period ended then illegally refunded himself $8,447.71 in cash of the $9,324.32 he illegally collected.
35] Bigger statutorily forfeited office by operation of law for breaching his duty to give the $8,447.71 surplus to the Clerk after he failed to return the illegally collected money to contributors who gave him cash outside of his campaign period and in contravention of the Act.
36] The fact that the longstanding Ontario Legislature MEA administrative office forfeiture penalties are imposed on candidates immediately and automatically by operation of law was reconfirmed in 2011 in Niagara Falls (City) v. Diodati 2011 ONSC 2180 (CanLII) at para 6.
[6] By way of a summary, I find that the original financial documents that were filed on March 24, 2011 clearly triggered the operation of s. 80(1) and (2) of the MEA. Therefore, on a strict reading of s. 80(2) of the MEA, Diodati forfeits the office of mayor and the office is deemed to be vacant.
[18] Therefore, based on Diodati's original filing of the financial documents on March 24, 2011, Diodati forfeits the office of mayor pursuant to s. 80(2)(a), and he is ineligible to be elected to any municipal office until after the next regular election has taken place pursuant to s. 80(2)(b). There is no specific provision in the MEA for relief from this forfeiture and penalty.
37] This immediate and automatic Ontario Legislature administrative office forfeiture penalty was reconfirmed again in 2017 in Giannini v City of Toronto http://canlii.ca/t/h07hw
[16] On March 31, 2015, the Clerk of the City of Toronto sent Ms. Giannini a Notice advising her of her default and of the penalty that applies pursuant to s. 80(2) of the MEA (ineligibility to run or be appointed until after the next election).
[17] Ms. Giannini is not the only candidate who is in default of her obligations under the MEA. Of 688 candidates in the 2014 Toronto municipal and school board election, 101 candidates are in default and subject to the automatic penalty of s. 80(2) of the MEA. A further 33 candidates sought and obtained an extension of the filing deadline before the deadline.
38] However, the Sudbury City Clerk failed to send Bigger the mandatory Ontario Legislature default notice declaration after vetting Bigger’s campaign statement and refused to send the notice even after being notified by the writer that Bigger forfeited office by operation of law.
39] Therefore, in accordance with MEA subs. 90(6), the Clerk committed a breach of duty corrupt practice by failing to send Bigger the Ontario Legislature’s default notice declaration. Moreover, despite being an offence under MEA s. 93, both Bigger and the Clerk refuse to provide access to Bigger’s election campaign contribution and expense receipts which are public documents.
40] Bigger is also statutorily barred by operation of law from running in the 2018 election yet a Clerk has certify Bigger’s nomination for the 2018 mayoral election.
https://www.greatersudbury.ca/city-hall/election-2018/2018-nominated-candidates/
41] Bigger’s office forfeiture arises by force of statute and is deemed proof of the vacancy for enforcement purposes. Municipal Act subs. 259(1)(a) refers to s. 256 and subs. 256(b) articulates a person is not qualified to be elected or hold office if they are disqualified under any other Act and any other Act includes the MEA as subs. 80(2)(b) statute bars Bigger from being a 2018 candidate.
Vacant seat
259 (1) The office of a member of council of a municipality becomes vacant if the member,
(a) becomes disqualified from holding the office of a member of council under section 256, 257 or 258;
Eligibility, local municipality
256. Every person is qualified to be elected or to hold office as a member of a council of a local municipality,
(b) who is not disqualified by this or any other Act from holding the office.
Municipal Elections Act
Effect of default by candidate
88.23 (1) A candidate is subject to the penalties listed in subsection (2), …,
(b) if a document filed under section 88.25 shows on its face a surplus, as described in section 88.31, and the candidate fails to pay the amount required by subsection 88.31 (4) to the clerk by the relevant date;
Penalties
(2) Subject to subsection (7), in the case of a default described in subsection (1),
(a) the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant; and
(b) until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies.
42] Liberal Brian Bigger is immediately removed from the mayor’s office that he already forfeited and ensure he is barred from being a 2018 mayoral candidate and Bigger will be taking votes away from other valid candidates.
44] The Clerk already committed a corrupt practice by failing to send Bigger the Ontario Legislature default notice declaration and Ontario jurisprudence already determined that a person who commits a corrupt practice is deemed to be a corrupt person, pure and simple.
See Arnold v. Harris 1993 CanLII 5553 (ON SC), (1993), at para. 46.
45] Now a Sudbury Clerk is conducting another corrupt Sudbury election by certifying a disqualified Brian Bigger as a mayoral candidate. Please see details of Liberal Brian Bigger’s office forfeiture and disqualification from being a 2018 mayoral candidate on the pages below.
In short,
- Bigger failed to report primary period income and falsely claims he had a $1,010.10 primary period deficit when he had a $438.70 surplus.
- He incurred $1,404.58 in expenses in his supplementary period.
- Even if he had a $1,010.10 deficit his supplementary period ended when he collected a total of $2,414.68 ($1,010.10 primary deficit plus $1,404.58 new supplementary expenses = $2,414.68).
- He illegally continued to campaign after his campaign ended and illegally collected $9,324.32 more in cash than he was legally permitted to collect.
- He illegally refunded himself $8,447.71 in cash of this illegally collected $9,324.32 amount.
- He forfeited the mayor’s office March 27, 2015 (and September 25, 2015) by operation of law.
- He has illegally been paid a six figure mayor’s salary (over half a million dollars) for over three and a half years despite forfeiting office and not being mayor.
- He traveled outside of Canada pretending to be mayor and had taxpayers pay his expense bills.
- The Clerk deliberately failed to send Bigger the Ontario Legislature’s office forfeiture default notice declaration and ignored the fraud he committed.
- A Clerk has now certified Bigger as a 2018 mayoral candidate despite Bigger being statutorily barred as a candidate by operation of law.
46] Municipalities are creatures of statute and exist at the pleasure of the province and municipal elections occur under a provincial Act wherein Ontario courts already determined that the MEA imposes Ontario Legislature administrative office forfeiture penalties on candidates. The MEA has a dual aspect in so far as it gives rise to both Ontario Legislature administrative imposed penalties as well as court imposed quasi-criminal penalties.
47] In Jackson v. Vaughan (City), 2010 ONCA 118 (CanLII), http://canlii.ca/t/281w6 the Court of Appeal stated the following at para. 40:
In respect of the first argument, based on R. v. Jarvis, 2002 SCC 73 (CanLII), [2002] 3 S.C.R. 757, he concluded that it was “plain” that the audit/prosecution process, which is aimed at securing compliance with the rules concerning election campaign finances, is regulatory in nature rather than criminal or quasi-criminal. If the appellant is convicted, she may be fined and/or removed from office. There is no risk of incarceration. By contrast, prosecution under the Act for corrupt practices engages a risk of incarceration on conviction. While there is quasi-criminal “penal liability” associated with corrupt practices, contraventions of the campaign finance provisions carry administrative or “regulatory penalties” in the language of Jarvis.
48] The MEA makes a distinction between Ontario Legislature administrative imposed penalties and Court imposed penalties on conviction. The MEA makes clear the court imposed penalties are in addition to Ontario Legislature imposed administrative penalties and subs. 88.23(1) makes crystal clear candidates are subject to Ontario Legislature administrative penalties listed in subsection (2), in addition to any other penalty that may be imposed under the Act.
49] Therefore as the MEA is broken down into parts the municipal clerks are required on behalf of the Ontario Legislature to give candidates before the election, and again before each primary and supplementary filing date, notice of both the Ontario Legislature administrative imposed penalties set out in one part of the MEA (subs. 88.23(1) and (2)); and the court imposed penalties set out under another MEA part (s. 92). If the Ontario Legislature administrative penalty only applied after a conviction there would be no need for the Clerk to give notice of subs. 88.23(2) because s. 92 already refers to subs. 88.23(2).
50] Subsection 88.23(2) is an Ontario Legislature issued double declaration wherein the Ontario Legislature declares two things. First, the Ontario Legislature declares that the elected candidate forfeits office. Second, the Ontario Legislature declares that the office is vacant. The declaration is issued by operation of law by the Ontario Legislature at 2pm on filing date.
See Somerleigh v. Polhill, 2006 CanLII 12700 (ON CA), http://canlii.ca/t/1n30m at para 16 for an example of another double declaration provision.
51] The Ontario Legislature issues the vacant office declaration by operation of law, and not by a judge of the court. A declaration is defined as a formal statement on the existence of a legal state of affairs. The issue which is determined by a declaration clearly becomes res judicata between the parties, (and in this case between Bigger and the Ontario Legislature) and the judgment a binding precedent.
52] As evidenced at para. 16 in Giannini v City of Toronto supra the Ontario Legislature administrative penalty default notice declaration is sent by the Clerk on behalf of the Ontario Legislature and it is not sent by a judge of the court. The Clerk sending the default notice declaration is the execution process. It would be pointless for the Clerk to issue candidates the penalty notices twice, and once by registered mail which cost ratepayers money, if the Clerk can just ignore the penalties once the default occurs. The Clerk is only relieved of an obligation to comply with MEA provisions if an express exemption is provided for in the statute and no such exemption exists. The Clerk has no authority to undermine, ignore or dilute the deterrent effect or penalty that is in fact by design meant to be deterrent in nature.
53] The purpose of any election Act is to ensure fair elections occur that lead to legitimate government. It is not the purpose of an election Act to allow officers who forfeit office to remain in power at their own discretion or in the discretion of the Clerk. The candidate’s financial information was statutorily compelled by the Ontario Legislature and is provided by candidates in response to a defined regulatory requirement.
See Jackson v. Vaughan (City), 2010 ONCA 118 (CanLII), 2010 ONCA 118 at para 42.
54] Subsection s. 88.23(1) expressly articulates what certain provisions and factors must be taken into account in the Clerk’s financial statement review process and these extremely detailed provisions set out the determinative factors that must be complied with at all times, no exception.
Effect of default by candidate
88.23 (1) A candidate is subject to the penalties listed in subsection (2), in addition to any other penalty that may be imposed under this Act,
(a) if the candidate fails to file a document as required under section 88.25 or 88.32 by the relevant date;
(b) if a document filed under section 88.25 shows on its face a surplus, as described in section 88.31, and the candidate fails to pay the amount required by subsection 88.31 (4) to the clerk by the relevant date;
(c) if a document filed under section 88.25 shows on its face that the candidate has incurred expenses exceeding what is permitted under section 88.20; or
(d) if a document filed under section 88.32 shows on its face a surplus and the candidate fails to pay the amount required by that section by the relevant date.
55] Once a Clerk observes or is made aware of defects in the statement filing, the inquiry stops there, and the Ontario Legislature default notice declaration is drafted and sent to the candidate and City Council by the Clerk. The Clerk is given no statutory power of decision in subs. 88.23(3) because the Clerk is not deciding or declaring anything; as the Clerk only acts in a notifying role.
Notice of default
88.23(3) In the case of a default described in subsection (1), the clerk shall,
(a) notify the candidate in writing that the default has occurred;
(b) if the candidate was elected, notify the council or board to which he or she was elected in writing that the default has occurred; and
(c) make available to the public the name of the candidate and a description of the nature of the default.
56] The MEA makes a distinction of when the Clerk operates in a notifying role and when the Clerk makes a decision that is final and when the Clerk declares something. In this respect, the Clerk’s subs. 88.23(3) notifying role differs entirely from the Clerk’s decision-maker role in s. 26; subs. 33(5) and (7); and 88.9.1(6) and in the Clerk’s declaring role in subs. 37(1) and (2); 53(1), (4) and (5); 55(4); 62(4) and 63(11).
57] Administrative office forfeiture penalties are imposed as part of a scheme for regulating an activity to protect the public in accordance with the policy of the MEA. The MEA Ontario Legislature’s administrative penalties apply in the same fashion as the Ontario Legislature’s administrative penalties in the Highway Traffic Act (HTA). For example, if you blow between 0.05 and 0.08 your drivers licence is automatically suspended on the spot by operation of law. There is no appeal or right to judicial review. The suspension is immediate and automatic. There is no offence committed. The police officer is not imposing the penalty; the Ontario Legislature is by operation of the HTA. The Legislature by way of the HTA imposes a positive obligation on officers to issue driver’s licence suspension notices just like the Legislature by way of the MEA imposes positive obligations on Clerks to send MEA subs. 88.23(2) default notice declarations under subs. 88.23(3). It is the same for HTA stunt law. Your licence is automatically suspended and vehicle automatically impounded on the spot by operation of law. There is no right to appeal or judicial review. The suspension is immediate and automatic. The police officer is not imposing the penalty; the Legislature is by operation of the HTA. The Legislature by way of the HTA imposes a positive obligation on officers to impound the vehicle and issue driver’s licence suspension notices just like the Ontario Legislature by way of the MEA imposes a positive obligation on Clerks to send MEA subs. 88.23(2) default notice declarations under subs. 88.23(3).
58] The administrative office forfeiture penalty is not penal in nature and falls within the "non-penal" category.
See Martineau v. M.N.R., 2004 SCC 81 (CanLII), [2004] 3 S.C.R. 737 at para. 22; and R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541, at para. 23.
59] The office forfeiture arises by a rule of law and reading MEA subs. 88.23(3) as permissive would defeat the purpose of the Act and the purpose of subs. 88.23(3) is to maintain the integrity of the election and democracy. The Clerk’s failure to send the default notice does not save Bigger from forfeiting office nor does it negate or revoke the Ontario Legislature’s default declaration that has already been issued by operation of law.
60] The Sudbury Clerk has previously sent the default notice declaration in many elections and on the links below are three examples of the Clerk sending the Ontario Legislature default notice declarations. (These links are now dead however)
Mike Petryna
http://www.greatersudbury.ca/content/w_elections06/documents/Notice%20of%20Default%20Mike%20Petryna.pdf
Gerry Paquette
http://www.greatersudbury.ca/content/w_elections06/documents/Notice%20of%20Default%20Gerry%20Paquette.pdf
Derek Young
http://www.greatersudbury.ca/content/w_elections06/documents/Derek%20Young%2020102.pdf
Indeed, strict application of the Municipal Elections Act led the clerk to declare mayoral candidate Derek Young ineligible for public office in the next municipal elections because he filed his finance reports two hours late.
http://www.thesudburystar.com/2011/12/27/mayor-subject-of-grievances
61] Legislation Act s. 63 expressly articulates that the law is always speaking and its present tense shall imperatively be applied to circumstances as they arise.
Legislation Act, 2006
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_06l21_e.htm
Law always speaking
63. The law is always speaking, and the present tense shall be applied to circumstances as they arise.
62] Legislation Act s. 13 requires Clerks take judicial notice of the MEA and its requirements.
Judicial notice
13. Judicial notice shall be taken of the enactment and contents of an Act.
63] Legislation Act s. 79 required the Clerk to perform the duty of sending the Ontario Legislature default notice declaration as that duty is imposed on the Clerk by MEA ss. 11; 13; subs. 88.23(3) and Municipal Act s. 228.
Performance when occasion requires
79. Powers that are conferred on a person may be exercised, and duties that are imposed on a person shall be performed, whenever the occasion requires.
Municipal Elections Act
Definitions
“clerk” means the clerk of a municipality;
Duties of clerk
11 (1) The clerk of a local municipality is responsible for conducting elections within that municipality, subject to the following exceptions: …
Notice by clerk
13 Any notice or other information that this Act requires the clerk to give shall be given in a form and manner and at a time that the clerk considers adequate to give reasonable notice or to convey the information, as case may be.
Municipal Act
Clerk
228 (1) A municipality shall appoint a clerk whose duty it is,
d) to perform the other duties required under this Act or under any other Act;
64] The Legislation Act is broken down into titled Parts. Sections 46 to 97 fall under Part VI which is titled Interpretation. Section 46 and 47 confirm ss. 63 and 79 applies to the Clerk.
Application to Acts and regulations
46. Every provision of this Part applies to every Act and regulation.
Contrary intention or context requiring otherwise
47. Section 46 applies unless,
(a) a contrary intention appears; or
(b) its application would give to a term or provision a meaning that is inconsistent with the context.
65] Ultimately, not only is there clarity of language, there is also clarity of purpose, and there is nothing in the MEA that suggests that there is a reason to depart from the ordinary and grammatical sense of its words. The duty to send the Ontario Legislature default notice declaration is inferred from the purpose and scheme of the Act and in this case the duty is expressly imposed on the Clerk by operation of the rule of law.
See R. v. Johnson, [2003] 2 SCR 357, http://canlii.ca/t/51pl at para. 17.
66] After a default notice declaration is sent to a candidate who won the election, City Council must either appoint a person to fill the office or hold a by-election in accordance with Municipal Act s. 263. However, bear in mind MEA s. 65(2) articulates that despite any Act, no by-election shall be held to fill an office that becomes vacant after March 31 in the year of a regular election.
Municipal Act
Vacant seat
259 (1) The office of a member of council of a municipality becomes vacant if the member,
(g) forfeits his or her office under this or any other Act;
Declaration
262 (1) If the office of a member of a council becomes vacant under section 259, the council shall at its next meeting declare the office to be vacant, except if a vacancy occurs as a result of the death of a member, the declaration may be made at either of its next two meetings.
Filling vacancies
263 (1) If a vacancy occurs in the office of a member of council, the municipality shall, subject to this section,
(a) fill the vacancy by appointing a person who has consented to accept the office if appointed; or
(b) require a by-election to be held to fill the vacancy in accordance with the Municipal Elections Act, 1996.
66] It is essential to also bear in mind that the Court of Appeal stated that because the office forfeiture occurred under the MEA, having the candidate removed under Municipal Act s. 265 does not apply as the office forfeiture is decreed by statute and the vacant office declaration has already been issued by the Ontario Legislature by operation of statute under MEA s. 88.23(2)(a).
See Audziss v. Santa 2003 CanLII 35121 (ON CA), 223 D.L.R. (4th) 257 at paras.10 and 20.
67] The MEA office forfeiture declaration in subs. 80(2) of the old MEA and in subs. 88.23(2) of the new MEA is equivalent to the office forfeiture declaration in Municipal Act s. 262 which is titled “Declaration”. Section 262 refers to s. 259 and s. 259 refers to any other Act and forfeiting office under any other Act includes forfeiting office under the MEA.
Declaration
262 (1) If the office of a member of a council becomes vacant under section 259, the council shall at its next meeting declare the office to be vacant, except if a vacancy occurs as a result of the death of a member, the declaration may be made at either of its next two meetings.
Vacant seat
259 (1) The office of a member of council of a municipality becomes vacant if the member,
(g) forfeits his or her office under this or any other Act;
68] Furthermore, the Municipal Act does not state it prevails in the case of conflict with any other Act. The Divisional Court in Rayside v. Ontario (Commission on Election Finances), 1992 CanLII 7489 (ON SC), (1992), 10 OR (3d) 287 (Div. Ct.) state that the specific provisions of the MEA relating to election campaign finances prevailed over the more general provisions under the Municipal Act and the Court of Appeal upheld this decision.
69] Thus, there is no ambiguity in the MEA that can be interpreted in favour of Bigger and by participating in the municipal election he voluntarily subjected himself to the MEA provisions and Ontario Legislature administrative penalties. The Canadian Charter of Rights and Freedoms also does not apply as candidates voluntarily run for office.
See Jackson v. Vaughan (City), 2010 ONCA 118 (CanLII), 2010 ONCA 118 at para 41.
70] Moreover, all MEA provisions must be given force and effect to secure the goals of the legislature as statutory enactments embody legislative will.
See Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 http://canlii.ca/t/51s6 at para. 62.
71] MEA subs. 88.23(2)(a) is an explicit Ontario Legislature administrative office forfeiture provision flowing from operation of law and there is no Clerk discretion as the rationale behind the forfeiture is that the candidate is no longer entitled to office. The automatic office forfeiture administrative penalty is already deemed constitutionally valid by the Supreme Court of Canada.
See Harvey v. New Brunswick (Attorney General), 1996 CanLII 163 (SCC), [1996] 2 S.C.R. 876.
72] The intervener in Harvey supra was the Attorney General for Ontario who argued:
“The automatic removal logically furthers the objective of preserving the integrity of the election process. It is a straightforward method whereby the electorate is assured that the election process will be fair. The provision is meant to protect the public not only from a particular offender, but from offenders in general. In other words the legislature is aiming at both general and specific deterrence”.
See also Harvey v. New Brunswick (Attorney General), 1993 (NBCA) http://canlii.ca/t/1lk9n; Harvey v. New Brunswick (Attorney General), 1993 (NBCA) http://canlii.ca/t/1qwx0; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319; and R. v. Jarvis, 2002 SCC 73 (CanLII), 2002 SCC 73, [2002] 3 S.C.R. 757.
73] The Ontario Legislature automatic office forfeiture falls within the historical privilege of the legislature and is immune from judicial review and the doctrine of judicial immunity restricts any court’s authority to inquire into the content of the office forfeiture.
74] Therefore as the MEA does not provide relief from Ontario Legislature administrative office forfeiture Liberal Brain Bigger is not the Mayor of the City of Greater Sudbury.
75] On February 21, 2012 the Court of Appeal clearly articulated council members must be removed when they have no legal entitlement to sit on council.
[18] “However, I see nothing in this record that would justify this court allowing Council members who have no legal entitlement to sit on the Council to continue in that capacity simply because the County did not act immediately to reduce the representation in accordance with the By-law’s population formula. The number of representatives to which the Townships are entitled is a matter that must be determined in accordance with the proper legal interpretation of By-law 28. If it was wrong to allow the additional Council members to take a place, the fact that they assumed office cannot make that wrong right”.
[19] “I disagree with the suggestion that we should decline to uphold the order that effectively removed them from office on the ground that it was “unfair” to remove them. There is nothing unfair in removing someone from office if that individual has no legal right to hold that office”.
See Ashfield-Colborne-Wawanosh (Township) v. Central Huron (Municipality), 2012 ONCA 111 http://canlii.ca/t/fq5nq at para.18 and 19.
76] The rules on election campaign finances rely heavily on honesty as the election campaign finance rules operate on a system of candidate self-reporting. The obligation on the candidate to report under subs. 88.22(1)(m) is a substantive law requirement statutorily imposed by subs. 88.22(1)(m); 88.23(1)(a); and 92(1)(b) and the statement must be sworn under oath; filled out completely; accurately; in prescribed form; and filed in a timely manner.
See Chapman v. Hamilton (City of), 2005 ONCJ 158 (CanLII) http://canlii.ca/t/1knsq at para. 19.
Duties of candidates
88.22 (1) A candidate shall ensure that,
(m) financial filings are made in accordance with sections 88.25 and 88.32;
(Posted s. 88.23(1)(a) earlier on page 4 in this narrative)
Offences by candidate
92 (1) A candidate is guilty of an offence and, on conviction, in addition to any other penalty that may be imposed under this Act, is subject to the penalties described in subsection 88.23 (2),
(b) if the candidate files a document under section 88.25 or 88.32 that is incorrect or otherwise does not comply with that section.
77] Ontario courts have also already determined that a significant error or omission in the completion of the Form 4 financial statement will amount to a contravention of the Act.
See Lancaster v. Compliance Audit Committee., 2012 ONSC 5629 http://canlii.ca/t/ft3jm at 83 and 89.
78] The Supreme Court of Canada said in Re Manitoba Language Rights Reference, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, at p. 737, the presumption that the word "shall" is intended to be mandatory should be followed unless:
“[s]uch an interpretation of the word "shall" would be utterly inconsistent with the context in which it has been used and would render the sections irrational or meaningless”.
79] The approach used in the determination as to whether a provision is to be read as mandatory or directory was further discussed in British Columbia (Attorney General) v. Canada (Attorney General); An Act Respecting the Vancouver Island Railway (Re), 1994 CanLII 81 (SCC), [1994] 2 S.C.R. 41 (at pp. 123-24):
… [T]he court which decides what is mandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed by the usual process of statutory interpretation.
80] The usual process of statutory interpretation use canons of construction that give common sense guidance in interpreting the meaning of statutes. Textual canons are rules of thumb for understanding the words of the text. Substantive canons require interpretations that promote certain values or policy results. Penal legislation is legislation that creates offences punishable by fine, loss of freedom or curtailment of a privilege or right. Because of the potential for serious interference with individual rights, penal legislation is strictly construed. The terms “conviction” and offence” are characteristic of penal statutes and the MEA is a penal statute.
See Chiang (Re), 2007 CanLII 44815 (ON SC) http://canlii.ca/t/1tcv7 at para. 17.
81] Election law is also given a strict interpretation.
See Morguard Properties Ltd. v. City of Winnipeg, [1983] 2 SCR 493, http://canlii.ca/t/1lpf4 ; Berardinelli v. Ontario Housing Corp, [1979] 1 SCR 275, http://canlii.ca/t/1tx6r ; Corporation (City of Vaughan) v. Di Biase, 2011 ONCJ 144, http://canlii.ca/t/fkr3x at paras. 36 and 38; and Niagara Falls (City) v. Diodati, 2011 ONSC 2180 http://canlii.ca/t/fkz72 at paras. 6 and 18.
82] Strict construction requires a fact finder to apply the text only as it is written. Any counter argument to its interpretation runs contrary to the use and purpose of statutory definitions and recognized drafting conventions. The consistently preferred approach to statutory interpretation by the Supreme Court of Canada is that:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
See Elmer A. Driedger, The Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87 (“Driedger”), approved in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2 at para. 21; and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), [2002] 2 S.C.R. 559, [2000] S.C.J. No. 43 at para. 26.
83] In Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724, at p. 735, Gonthier J indicated that:
the ordinary meaning is “the natural meaning which appears when the provision is simply read through”.
84] The applicable principle of statutory interpretation was expressed by Lamer C.J. in R. v. Z. (D.A.), 1992 CanLII 28 (SCC), [1992] 2 S.C.R. 1025, at p. 1042, as follows:
In interpreting the relevant provisions of an Act, the express words used by Parliament must be interpreted not only in their ordinary sense but also in the context of the scheme and purpose of the legislation. . . .
85] The best indication of Parliament’s intent is found in the language of the statutory provisions.
See R. v. Knott, 2012 SCC 42 (CanLII), 2012 SCC 42, [2012] 2 S.C.R. 470, at para. 54.
86] Where the statutory words are clear and unambiguous, the Court must give conclusive weight to those clear unambiguous words, without further or any inquiry into legislative intent.
See Shell Canada Ltd. v. Canada, 1999 CanLII 647 (SCC), [1999] 3 S.C.R. 622; 65302 British Columbia Ltd. v. Canada, 1999 CanLII 639 (SCC), [1999] 3 S.C.R. 804; Singleton v. Canada, 2001 SCC 61 (CanLII), [2001] 2 S.C.R. 1046, 2001 SCC 61; and Canada (Deputy Minister of National Revenue - M.N.R.) v. Mattel Canada Inc., 2001 SCC 36 (CanLII), [2001] 2 S.C.R. 100, 2001 SCC 36.
87] Furthermore, “it is presumed that the ordinary meaning of a legislative text is the meaning intended by the legislature. In the absence of a reason to reject it, the ordinary meaning prevails”.
Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at 24.
“In so far as the language of the text permits, interpretations that are consistent with or promote [the] legislative purpose should be adopted, while interpretations that defeat or undermine [the] legislative purpose should be avoided”. Sullivan at 255.
88] Moreover, every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose.
See Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20 (CanLII), 2006 SCC 20, [2006] 1 S.C.R. 715 at ¶45, citing Ruth Sullivan, Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994) at 159.
89] Fauteux C.J. in Ville de Montréal v. ILGWU Center et al., 1971 CanLII 188 (SCC), [1974] S.C.R 59 at 66 said:
“The legislator is presumed to mean what he says; and there is no need to resort to interpretation when the wording is clear ...”
90] The duty of a fact finder in dealing with a statute has never been stated with greater accuracy or economy or precision than by Duff J. (as he then was) in Re Gray 1918 CanLII 86 (SCC), (1918), 57 S.C.R. 150 at p. 169, 42 D.L.R. 1 at p. 11, [1918] 3 W.W.R. 111. His words are these:
“It is the function of a court of law to give effect to the enactments of the legislature according to the force of the language which the legislature has finally chosen for the purpose of expressing its intention”.
91] Therefore, when the words of an Act are clear there is no need to interpret it; a simple reading suffices. The MEA must be interpreted to give effect to its purpose and to achieve a coherent result. The identification of the purpose of a particular provision is important because where the failure to comply with a requirement of a provision defeats the purpose of that provision, the imperative command “shall” is interpreted as mandatory. Thus reference to other MEA sections determines whether the word shall is directory or mandatory. In the result, the word “shall” in subs. 88.22(1)(m) and 88.31(4) is mandatory because subs. 88.23(2) expressly stipulates the consequences for failing to give the Clerk the surplus is an immediate and automatic Ontario Legislature administrative office forfeiture penalty and bar from being a candidate in the next election. And as subs. 88.23(3) imports a mandatory duty on the Clerk by operation of law, there is no discretion for the Clerk to not send Bigger the default notice declaration as the MEA expressly stipulates the consequences for failing to send the candidate and council the default notice declaration is a penal penalty on the Clerk in the form of a neglect of duty corrupt practice under s. 90(6).
Notice of default
88.23(3) In the case of a default described in subsection (1), the clerk shall,
(a) notify the candidate in writing that the default has occurred;
(b) if the candidate was elected, notify the council or board to which he or she was elected in writing that the default has occurred; and
(c) make available to the public the name of the candidate and a description of the nature of the default.
Neglect of duty
90(6) A clerk or other election official who wilfully fails to perform a duty imposed by this Act is guilty of an offence that constitutes a corrupt practice.
General penalty, individual
94.1 (1) An individual who is convicted of an offence under this Act is liable to the following penalties in addition to any other penalty provided for in this Act:
1. For any offence, a fine of not more than $25,000.
2. For any offence other than a corrupt practice, the penalties described in subsection 88.23 (2) and 88.27 (1).
3. For an offence under section 90, imprisonment for a term of not more than six months.
92] The court has already decided that a “democratic election must be “squeaky clean” as there must be a public perception that no improper procedures have been used and everyone must feel that the election has been democratically controlled and democratically conducted”.
See R. v. Aftergood, 2007 ABPC 122 at para. 15. http://canlii.ca/t/1rcdw
93] In R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at p. 136, Dickson C.J. concluded that faith in social and political institutions, which enhance the participation of individuals and groups in society, is of central importance in a free and democratic society. If Canadians lack confidence in the electoral system, they will be discouraged from participating in a meaningful way in the electoral process. More importantly, they will lack faith in their elected representatives. Confidence in the electoral process is, therefore, a pressing and substantial objective.
94] In Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, 2003 SCC 37 (CanLII), the Supreme Court noted at para. 72 that:
“Electoral financing is an integral component of that process, and thus it is of great importance that the integrity of the electoral financing regime be preserved.”
95] In Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33 (CanLII) the Court held at para. 103:
Maintaining confidence in the electoral process is essential to preserve the integrity of the electoral system which is the cornerstone of Canadian democracy.
96] The Ontario courts have already determined that these principles above apply with necessary modifications to municipal campaign finances.
See Jackson v. Vaughan (City), 2009 10991 at paras. 16, 17, 18 and 19 http://canlii.ca/t/22rg2
97] Therefore, in this matter Brian Bigger’s office forfeiture and bar from being a candidate in the 2018 election is an explicit Ontario Legislature administrative penalty imposed immediately and automatically by the Ontario Legislature under MEA subs. 80(2) and it is the Ontario Legislature’s legal duty and responsibility to enforce the penalty that the Ontario Legislature enacted and imposed on Bigger.
98] It is also the Ontario Legislature’s duty to supervise the Clerk who is not a Clerk under the MEA, but rather an Election Returning Officer on behalf of the Ontario Legislature.
99] It is not the responsibility of a citizen or elector to spend their time and their own money to hire lawyers and/or to commence proceedings to enforce Ontario Legislature administrative penalties on behalf of the Ontario Legislature.
100] Therefore, the Ontario Legislature must act immediately to enforce the rule of law that the Ontario Legislature drafted and enacted. The rule of law must in all events mean "the law is supreme" and that officials of the Government have no option to disobey it. It would be unthinkable, under the rule of law, to assume that a process of enforcement is required to ensure that the Government and its officials will faithfully discharge their obligations under the law. That the Ontario Government must and will obey the law is a first principle of our Constitution.
101] In Reference re Secession of Quebec, 1998 CanLII 793 (S.C.C.), [1998] 2 S.C.R. 217, at paragraph 67, the Supreme Court of Canada emphasized the following regarding the notion of democracy:
“Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the sovereign will is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution”.
102] The rule of law is a foundational principle; the Supreme Court of Canada described it as:
“a fundamental postulate of our constitutional structure” that “lies at the root of our system of government”.
See Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] SCR 121, http://canlii.ca/t/22wmw at p. 142; and Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 SCR 217, http://canlii.ca/t/1fqr3 at para. 70.
103] The rule of law is expressly acknowledged by the preamble to the Constitution Act, 1982 and implicitly recognized in the preamble to the Constitution Act, 1867.
See Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), 1 S.C.R. 721, at p. 750.
104] The rule of law embraces at least three principles.
The first principle is that the:
“law is supreme over officials of the government as well as private individuals and thereby preclusive of the influence of arbitrary power”: Reference re Manitoba Language Rights, at p. 748.
The second principle:
“requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order”: ibid., at p. 749.
The third principle requires that:
“the relationship between the state and the individual . . . be regulated by law”: Reference re Secession of Quebec, at para. 71.
See Re Manitoba Language Rights [1985] 1 SCR 721, http://canlii.ca/t/1ftz1; British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 SCR 473, http://canlii.ca/t/1lpk1 at para. 58; Charkaoui v. Canada (Citizenship and Immigration), SCR 350, http://canlii.ca/t/1qljj at para. 134; and British Columbia (Attorney General) v. Christie, [2007] 1 SCR 873, http://canlii.ca/t/1rkdb at paras. 19 and 20.
105] The first principle requires that legislation be applied to all those, including government officials, to whom it, by its terms, applies. The second principle means that legislation must exist. And the third principle, which overlaps somewhat with the first and second, requires that state official actions be legally founded.
See British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 SCR 473, http://canlii.ca/t/1lpk1 at para. 59.
106] In Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), 2008 SCC 9, [2008] 1 S.C.R. 190, Bastarache and LeBel J.J., speaking for the majority, said:
[28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution
107] Importantly, Supreme Court of Canada decision Toronto (City) v. Polai, 1972 CanLII 22 (SCC), [1973] S.C.R. 38 (S.C.C.) stands for the proposition that delay in enforcement does not defeat a statute and it is inappropriate for private actions to defeat a statute in which the public has an interest. The policy for such a rule is that public enactments would otherwise have no meaning if violators could continue to breach a statute simply because others, and in this case the Clerk, deliberately failed to exercise their statutory duties.
108] Therefore, when the words of subs. 80(2) in the old MEA and in subs. 88.23(2) of the amended MEA are given their ordinary meaning and read grammatically, in the context of the legislation as a whole, they delineate boundaries for actions in respect of campaign finances that are neither vague nor arbitrary.
109] Turning to the precise statutory language of the MEA, subs. 80(3) of the old MEA and subs. 88.33(3) of the amended MEA, reveals that it is not a discretionary section. The Act does not use the word “may” and give the Clerk discretion under that section. The word “shall” is used making it mandatory and a breach of an obligation imposed by "shall" entails an offence. Thus the Minister responsible has a duty to ensure enforcement of the Act as Bigger’s office forfeiture is conclusive and the delay in enforcement is irrelevant as Bigger has no route of appeal.
110] The right of appeal is a substantive right, not a matter of procedure. There is no right to an appeal in law as an appeal is granted by statute, and if not granted, it does not exist as an inherent right. Unless an appeal is provided for under the Act, the decision is final and conclusive for all purposes and the MEA provides no appeal from the administrative penalties.
See La Ville de Jacques-Cartier v. Lamarre [1958] SCR108 http://canlii.ca/t/22v9t; R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] 1 S.C.R. 1764 at 1773; Kourtessis v. M.N.R. 1993 CanLII 137 (SCC), (1993), CanLII 137 (S.C.C.), [1993] 2 S.C.R. 53 at pp. 69-70.81; R. v. H. (E.) 1997 CanLII 418 (ON CA), (1997), 33 O.R. (3d) 202 at p. 208 (C.A.); and Erskine v. Personal Insurance Company of Canada, 2005 CanLII 36173 (ON SCDC). http://canlii.ca/t/1lr4m at para. 7.
111] Moreover, the immediate and automatic office forfeiture default notice declaration is a judicial decree of the Ontario Legislature and it has already been issued by the Ontario Legislature by operation of law.
112] In the result, there is no foundation in law for the Clerk to not send Bigger and City Council the Ontario Legislature’s office forfeiture default notice declaration when the rule of law imperatively placed a statutory duty on the Clerk to send it.
113] There is also no foundation in law that allows Liberal Brian Bigger to be paid over half a million public dollars in salary and benefits to pretend he is mayor when he is not the mayor. No legal system can allow Bigger to retain the enrichment gained at the victim's expense. As there was a total absence of any authority for Bigger to pretend to be mayor and the salary he was paid were obtained by fraud and have been diverted illegally from the municipal treasury. The civil forfeiture rule is part of the common law; there is no limitation period for disgorgement recovery; and the victimized Sudbury ratepayers require restitution of the pecuniary gain and profit Bigger obtained at the victim’s expense.
114] The rule of law also includes the right of electors to cast their vote on the basis of ballots which place before them a choice of qualified candidates only and Bigger is disqualified from being a 2018 mayoral candidate. The qualification of being a candidate is required by the MEA, not only as a condition of eligibility, but as a condition of capacity to hold office. Thus a cause of ineligibility to office is also a cause of incapacity to hold it. The Ontario Legislature would not be meeting its obligations to conduct fair elections if it failed to take steps to ensure only qualified candidate names are on the voting ballot. A question of eligibility and qualification is determined as of nomination day and not Election Day.
115] In order to understand how the provisions of an Act apply, context in the construction of statutory language is invaluable. The most effective way to conduct the modern approach to statutory interpretation is to trace the evolution of legislation from its inception, through successive amendments, to its current form. It is well established that legislative evolution is used to interpret a statute as prior enactments throw light on the intention of the legislature in repealing, amending, replacing or adding to a statute.
See R. v. Ulybel Enterprises Ltd., 2001 SCC 56 (CanLII), [2001] 2 S.C.R. 867, 2001 S.C.C. 56, at para. 33; Gravel v. City of St-Léonard, [1978] 1 S.C.R. 660, at p. 667; and Sullivan and Driedger on the Construction of Statutes (4th ed. 2002) at pp. 471-72.
116] This interpretation principle is based on the presumption that changes to legislation are intended to effect a substantive change in the law. In analyzing changes in the terms used in statute law, the Ontario Court of Appeal has noted the importance of this presumption:
"the amendment must have had some purpose and significance".
See Re Peralta and The Queen in right of Ontario (1985), 49 O.R. (2d) 705, at p. 716; affirmed by Peralta v. Ontario, [1988] 2 S.C.R. 1045).
117] When the Legislature changes the context of prevailing law it must do so expressly and/or with irresistible clearness. In United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 (CanLII), 2004 SCC 19, [2004] 1 S.C.R. 485, Bastarache J., speaking for the court, observed at para. 11:
It is well established that the legislature is presumed not to alter the law by implication: Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 395. Rather, where it intends to depart from prevailing law, the legislature will do so expressly.
Also see Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., 1956 CanLII 2 (SCC), [1956] S.C.R. 610 at p. 614.
It is trite but true to state that as a general rule a legislature is presumed not to depart from prevailing law “without expressing its intentions to do so with irresistible clearness”
118] To alter the law requires clear evidence and/or explicit language, as was said by the majority of the Court of Appeal in Yarmouth et al. v. City of London et al., 1956 CanLII 42 (ON CA), [1957] O.R. 37 at p. 48, 7 D.L.R. (2d) 140 at p. 149; reversed on other grounds 1958 CanLII 6 (SCC), [1958] S.C.R. 249, 12 D.L.R. (2d) 681, 77 C.R.T.C. 54, sub nom. City of London et al. v. City of St. Thomas et al.:
“An intention to change the meaning and effect of the section should not be imputed to the Legislature unless the subsequent section puts it beyond question in explicit and unmistakable terms”
119] Tracing thus shows provision 88.23(3) has changed throughout the years and these legislative amendments signal a change in the law. From 1990 to 1996 the Clerk was required to send the Ontario Legislature default notice declaration immediately. From 1996 to 2003 the Clerk was required to send the default notice declaration within 5 days. From 2003 to 2009 the Clerk was required to send the default notice declaration within 10 days. From 2010 to present the Clerk can send the default notice declaration at any time, including today, tomorrow, next week or at any time. Therefore as the courts already ruled that the delay in enforcement does not defeat the Act, or a penalty imposed by the Act, the Minister responsible must order the current City Clerk to send Bigger the Ontario Legislature default notice declaration immediately as an absolute statutory duty requires the performance of the obligation. As the duty is imposed on the Clerk, the Clerk always remains responsible for the performance of that duty.
See City of Kitchener v. Robe & Clothing Co., 1925 CanLII 1 (SCC), [1925] S.C.R. 106, [1925] 1 D.L.R. 1165 at p. 119.
120] Premier Doug Ford was a mayoral candidate in Toronto in 2014. Mr. Ford was subject to the very same MEA requirements as Liberal Brian Bigger in Sudbury. Mr. Ford had a primary deficit just like Bigger. Ford also extended his campaign period just like Bigger. Ford ended his supplementary campaign when he collected enough money to eliminate his primary period deficit and new supplementary expenses, as he was required to do by operation of law.
121] This is exactly what Liberal Bigger was also required to do in Sudbury, but failed to do.
122] See the relevant expense, contribution and supplementary balanced campaign parts of Doug Ford’s 2014 mayoral statements in the attachment to this email.
123] One Hundred and One (101) 2014 municipal election candidates in Toronto were issued the Ontario Legislature’s immediate and automatic administrative penalty and none of the 101 were issued by a court after a charge was laid, a trial was held, and a conviction entered. The government mentioned 101 during the downsizing of Toronto councillors so neither the minister responsible nor the government can deny that it is not already aware that Ontario Legislature’s MEA immediate and automatic administrative penalties exist and when and how they apply.
124] Sudbury is spending over a million dollars conducting the 2018 municipal election and Bigger is a sitting mayor who will garner votes. Mayor candidates garner voted from all wards within the City and not just from electors in one ward and Bigger will get anywhere from 15,000 to 25,000 votes. Bigger is already statute barred from being a candidate by operation of law and allowing a statutorily barred candidate to take part in the election and spoil 15 to 25,000 votes will automatically cause a controverted election regardless of who wins the mayoral election. Thus Bigger is not a qualified candidate which will lead to voters voting for a candidate for whom the voter would not otherwise vote for. Bigger being prohibited by law to be nominated for or to hold the office is reconfirmed in MEA s. 29.
Who may be nominated
29. (1) A person may be nominated for an office only if, as of the day the person is nominated,
(a) he or she is qualified to hold that office under the Act that creates it; and
(b) he or she is not ineligible under this or any other Act or otherwise prohibited by law to be nominated for or to hold the office.
126] In the result, Bigger is disqualified, not eligible and otherwise prohibited by law to be nominated for or to hold the office on both Election Day and on December 1, 2018 when the new City Council takes office.
127] Premier Ford knows the proper application of the MEA because he ran under that Act and managed to follow it correctly regarding when his supplementary campaign period ended, which is after he collected enough cash to eliminate his deficit and new supplementary expenses.
128] Doug Ford did not fail to report primary period income to generate a fake deficit to extend his campaign like Liberal Brian Bigger did. Ford did not continue campaigning after his deficit and supplementary expenses were eliminated to generate a surplus so he could illegally refund himself the surplus like Liberal Bigger did.
129] Premier Ford is thus one of Ontario’s leading experts on the proper interpretation and application of the MEA campaign period starting and ending dates as set out in s. 68, and, on the Ontario Legislature’s immediate and automatic administrative office forfeiture penalty as set out in s. 88.23(1) and (2).
Brian Bigger Mayoral Office Forfeiture
01] Brian Bigger was elected Sudbury Mayor in October 2014 and for purposes of his election and this narrative the Municipal Elections Act (MEA) in place in 2014 on the link below applies to Bigger, not the current recently amended MEA.
Municipal Elections Act, 1996, S.O. 1996, c. 32, Sched.
https://www.ontario.ca/laws/statute/96m32/v14#BK100
02] As the municipal election is conducted on behalf of the province the MEA scheme operates under the watchful gaze and oversight of the Minister responsible under the Ministry of Municipal Affairs and Housing Act and Municipal Affairs Act.
Ministry of Municipal Affairs and Housing Act
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90m30_e.htm
Definitions
1. In this Act,
“Minister” means the member of the Executive Council responsible for the administration of this Act;
“Ministry” means the Ministry of Municipal Affairs and Housing;
municipality” means a municipality and a local board, both as defined in section 1 of the Municipal Affairs Act.
Minister to have charge
3. The Minister shall preside over and have charge of the Ministry and has power to act for and on behalf of the Ministry.
Functions of Minister
4.(1) The Minister is responsible for the policies and programs of the Government of Ontario in relation to,
(a) municipal affairs, including the co-ordination of programs of financial assistance to municipalities;
Administration of Acts
(4) The Minister is responsible for the administration of this Act and the Acts that are assigned to him or her by the Legislature or by the Lieutenant Governor in Council.
03] Please note that despite the MEA being amended, Legislation Act Part VI confirms it does not affect anything herein because while MEA section numbers have changes no procedure or lesser penalty under the newly amended MEA has changed that can benefit Bigger or the Clerk.
Legislation Act, 2006
https://www.ontario.ca/laws/statute/06l21
PART-VI
INTERPRETATION
LEGISLATIVE CHANGES
Effect of amendment and replacement
Application
52 (1) This section applies,
(a) if an Act is repealed and replaced;
(b) if a regulation is revoked and replaced;
(c) if an Act or regulation is amended.
Authorized persons continue to act
(2) A person authorized to act under the former Act or regulation has authority to act under the corresponding provisions, if any, of the new or amended one until another person becomes authorized to do so.
Proceedings continued
(3) Proceedings commenced under the former Act or regulation shall be continued under the new or amended one, in conformity with the new or amended one as much as possible.
New procedure
(4) The procedure established by the new or amended Act or regulation shall be followed, with necessary modifications, in proceedings in relation to matters that happened before the replacement or amendment.
Reduction of penalty
(5) If the new or amended Act or regulation provides for a lesser penalty, forfeiture or punishment, the lesser one applies when a sanction is imposed, after the replacement or amendment, in respect of matters that happened before that time.
04] Each candidate must file election campaign financial statements in prescribed form. The Form is created by the Minister responsible under MEA subs. 95(1)(c). The word “prescribed” is defined in MEA s. 1 and it means by regulation.
Municipal Elections Act
GENERAL
Definitions
1. (1) In this Act,
“prescribed” means prescribed by the Minister;
REGULATIONS
Regulations
95.(1)The Minister may, by regulation,
(c) prescribe forms;
05] As the Form is created by regulation it is substantive law and all information requested by the Minister in the Form must be provided by candidates and it is not optional. Moreover, in accordance with Legislation Act subs. 34(2); the Form is official law.
Same
34.(2) A regulation that is filed with the Registrar of Regulations under Part III (Regulations) or a predecessor of that Part is official law.
Black’s Law Dictionary, 5th ed., at p. 1281 defines “substantive law” as,
That part of law which creates, defines, and regulates rights, as opposed to “adjective or remedial law”, which prescribes method of enforcing the rights or obtaining redress for their invasion. That which creates duties, rights and obligations, while “procedural or remedial law” prescribes methods of enforcement of rights or obtaining redress.
06] In Bigger’s sworn under oath primary election campaign financial statement on the link below, that was filed with the Clerk on March 26, 2015, Bigger reports a $1,010.10 deficit as of December 31, 2014. However Bigger failed to report primary period income so he did not have a $1010.10 deficit because he has a $438.70 surplus.
https://www.greatersudbury.ca/sudburyen/assets/File/Brian%20Bigger%20-%20Primary%20Filing.pdf
07] In his sworn under oath updated supplementary election financial campaign statement on the link below, filed with the Clerk on September 25, 2015, Bigger claimed he now had an $8,447.71 surplus.
https://www.greatersudbury.ca/inside-city-hall/election-2014/election2/brian-bigger-supplementary/
08] For clarity, Bigger illegally collected $9,324.32 after his campaign ended and illegally refunded himself $8,447.71 of the illegally collected $9,324.32. When the $9,324.32 is mentioned hereinafter it refers to the amount of money he illegally collected, and, when the $8,447.71 is mentioned it refers to the alleged surplus amount of money Bigger illegally refunded to himself.
09] Bigger’s election campaign period ended on December 31, 2014 however if he truly had a $1,010.10 deficit, as he alleges, then he was entitled to extend his election campaign period beyond December 31, 2014 because he had a deficit as of December 31, 2014.
10] Section 68(1) 4 expressly states that an extended supplementary campaign period ends AT THE EARLIEST OF either June 30 in the year following the regular election, or, once a candidate raises enough contributions in the extended supplementary campaign period to eliminate their primary campaign period deficit and any new expenses incurred in the extended campaign period. For clarity, it is one or the other and the first to occur. If a candidate eliminates their deficit and new expenses in January their campaign period ends in January despite it not being June 30 yet.
11] Bigger eliminated his deficit and new supplementary expenses before June 30, therefore, in accordance with MEA subs. 68(1) 4 iv Bigger’s supplementary campaign period did not end on June 30, but instead ended the very second he raised enough money (subs. 68(1) 4 iv) ((A)) to eliminate any new expenses incurred during his extended supplementary campaign period (subs. 68(1) 4 iv) ((B)) and the primary $1,010.10 deficit (subs. 68(1) 4 iv) ((C)).
For clarity, the day “A” equals the total of “B” and “C”.
Election campaign period
68.(1) For the purposes of this Act, a candidate’s election campaign period for an office shall be determined in accordance with the following rules:
1. The election campaign period begins on the day he or she files a nomination for the office under section 33.
2. The election campaign period ends on December 31 in the case of a regular election
…
4. Despite rules 2 and 3, if the candidate has a deficit at the time the election campaign period would otherwise end and the candidate notifies the clerk in writing on or before December 31 in the case of a regular election and 45 days after voting day in the case of a by-election, the campaign period is extended and is deemed to have run continuously from the date of nomination until the earliest of,
i. the following June 30, in the case of a regular election,
iv. the day A equals the total of B and C, where,
A= any further contributions,
B= the expenses incurred during the extension of the election campaign period,
C= the amount of the candidate’s deficit at the start of the extension of the election campaign period.
12] Despite his campaign period ending once he collected enough money to eliminate his alleged $1,010.10 primary deficit and newly incurred extended campaign expenses, Bigger continued illegally campaigning outside of his campaign period to collect an additional $9,324.32 in cash with full intention of refunding himself the surplus because refunding himself the $8,447.71 surplus is exactly what Bigger illegally did with the surplus.
13] Bigger alleges he had a $1,010.10 primary period deficit and his supplementary statement evidence that he only incurred $1,404.58 in additional expenses during his extended supplementary period for a total sum of $2,414.68. Bigger’s new supplementary expenses were $945.00 for his supplementary statement accounting audit; $424.88 for office expenses; and $34.70 in bank charges. For clarity:
- $945.00 for Bigger’s supplementary statement accounting audit costs; ($1695.00 in accounting audit costs is reported in total in Bigger’s supplementary statement which includes the $750.00 in accounting audit costs that he paid for in his primary statement leaving a total cost of $950.00 for his supplementary campaign accounting audit);
- $424.88 for office expenses (Bigger did not claim any office expenses in his primary statement); and
- $34.70 in new bank charges ($49.99 in bank charges is reported in his supplementary statement which includes $14.96 of bank charges paid for in his primary statement leaving a total bank charge of $34.70 in his supplementary period).
14] Therefore once Bigger collected $2,414.68 in cash in the supplementary campaign period his campaign ended and he was no longer allowed to collect anymore money.
15] In Bigger’s primary campaign financial statement Bigger swore under oath that he collected $53,819.01 in cash contributions. In Bigger’s supplementary campaign financial statement on the link below, Bigger swore under oath that he collected an additional $11,539.00 in cash contributions. On page 3 line 4 of Bigger’s supplementary statement it shows on it face Bigger refunded himself $8,447.71.
https://www.greatersudbury.ca/inside-city-hall/election-2014/election2/brian-bigger-supplementary/
18] Bigger's statement shows on its face that Bigger refunded himself $8,447.71.
19] Because Bigger failed to give this $8,447.71 surplus to the Clerk on the September 25, 2015 supplementary filing date, Bigger immediately and automatically forfeited office as mayor by operation of law in accordance with MEA subs. 69(1)(m) and (n), 69(2), 79(4), 80(1)(b) and 80(2)(a).
Duties of candidate
69. (1) A candidate shall ensure that,
(m) a contribution of money made or received in contravention of this Act is returned to the contributor as soon as possible after the candidate becomes aware of the contravention;
(n) a contribution not returned to the contributor under clause (m) is paid to the clerk with whom the candidate’s nomination was filed a;
Surplus paid to clerk
79(4) If the candidate’s financial statement or supplementary financial statement shows a surplus and the election campaign period has ended at the time the statement is filed, he or she shall, when the statement is filed, pay the surplus to the clerk with whom the candidate’s nomination was filed, reduced by the amount of any refund under subsection (6).
80. (1) A candidate is subject to the penalties listed in subsection (2), in addition to any other penalty that may be imposed under this Act,
(b) if a document filed under section 78 shows on its face a surplus, as described in section 79, and the candidate fails to pay the amount required by subsection 79 (4) to the clerk by the relevant date;
Same
(2) In the case of a default described in subsection (1),
(a) the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant; and
(b) until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies.
20] This office forfeiture penalty is an administrative penalty imposed upon Bigger by the Ontario Legislature. There is no doubt that the role of a Clerk is derived from statute and being purely statutory must be construed strictly. Thus it is the duty of the Clerk to know the patent purpose of s. 80 and proper interpretation at law. Campaign finances are found under the heading “Election Campaign Finances”. Election campaign finances fall under MEA ss. 66 to 82.1, which include s. 78 reporting provisions as well as the Ontario Legislature s. 80 administrative penalties and s. 80 is a complete code for purposes of the administrative penalties.
21] Significant to this matter, Professor Sullivan also discusses the weight of groupings of provisions under headings. She states at p. 396:
When provisions are grouped together under a heading it is presumed that they are related to one another in some particular way, that there is a shared subject or object or a common feature to the provisions. Conversely, the placement of provisions elsewhere, under a different heading suggest an absence of such a relationship.
Reliance on the grouping of provisions under headings to assist in interpretation is illustrated by R. v. Blais. In that case the Supreme Court of Canada had to determine whether Metis were Indians within the meaning of s. 13 of the Natural Resources Transfer Agreement and therefore entitled to the rights reserved to Indians under the section. In concluding that Metis were not Indians for this purpose, the Court ... relied on the placement of s. 13 and its heading. ...
See Ward v. Southwest Middlesex Municipality, 2013 ONSC at para. 87 http://canlii.ca/t/g0r4x
22] Ontario courts also already determined that election clerks are statutorily obligated under MEA s. 80 to send the Ontario Legislature default notice declaration to a candidate where the defaults are plain in the financial reports.
Under s. 80, the clerk is obliged to monitor compliance and to send a notice of default to the candidate where the defaults are plain in the financial reports or where the reports have not been filed as required under the Act.
See Jackson v. Vaughan (City), 2009 (ON SC) at para. 27, http://canlii.ca/t/22rg2
23] At law the word “shall” is either imperative or directory and if the Act provides consequences then the word shall is imperative. The MEA expressly provides penalties for breaching sections of the Act and because of this reality it means the word “shall” in the MEA is imperative (must do it) and not directory (may do it but do not have to do it). The word shall imposes a statutory duty on the candidate and this is confirmed by the title of s. 69 which is titled DUTIES of candidate, thus the word shall is not directory, but statutorily imperative and mandatory. The Supreme Court of Canada in Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357 removed all doubt about the use of headings in the interpretation of statutes. This decision establishes that headings can be used as an aid to interpretation especially where the language of the statute is ambiguous.
Duties of candidate
69. (1) A candidate shall ensure that,
(e) receipts are issued for every contribution and obtained for every expense;
(f) records are kept of,
(i) the receipts issued for every contribution,
(iv) the contributor’s name and address;
(k) financial filings are made in accordance with sections 78
(l) proper direction is given to the persons who are authorized to incur expenses and accept or solicit contributions on behalf of the candidate;
(m) a contribution of money made or received in contravention of this Act is returned to the contributor as soon as possible after the candidate becomes aware of the contravention;
(n) a contribution not returned to the contributor under clause (m) is paid to the clerk with whom the candidate’s nomination was filed;
Contributions paid to clerk
(2) Contributions paid to the clerk under clause (1) (n) or (o) become the property of the local municipality.
24] There is no such thing as having a surplus in a supplementary period. This is so because subs. 68(1) 4 iv expressly articulates Bigger’s campaign period ended the second he collected enough money to eliminate his campaign deficit and any expenses incurred during the extended campaign period. Therefore having a surplus in a supplementary period is prima facie impossible.
25] MEA subs. 70(2) also expressly makes it a provincial penal offence to campaign and accept cash outside a candidate’s campaign period and Bigger continued to campaign and accepted an additional $9,324.32 of cash after his campaign ended in accordance with subs. 68(1) 4 iv.
Only during election campaign period
70(2) A contribution shall not be made to or accepted by or on behalf of a candidate outside his or her election campaign period.
26] Subsection 69(1)(n) as shown above expressly placed a statutory duty on Bigger to give the $8,447.71 surplus he illegally collected to the City Clerk. This is so because in accordance with subs. 69(1)(m) Bigger deliberately failed to return the illegally collected surplus cash to the people who gave it to him before the supplementary filing time of 2 pm on the filing date of September 25, 2015.
Subsection 69(2) expressly articulates that the $8,447.71 surplus belongs to the City.
Section 79 expressly articulates how a surplus is calculated.
Subsection 79(4) expressly articulates Bigger was statutorily required to give the Clerk the $8,447.71 surplus at the time he filed his supplementary statement on September 25 as his campaign had ended.
Surplus and deficit
79. (1) A candidate has a surplus if the total credits exceed the total debits, and a deficit if the reverse is true.
Total credits
(2) For the purposes of subsection (1), the total credits are the sum of,
(a) the candidate’s contributions under section 66;
(b) any amounts of $10 or less that were donated at fund-raising functions;
(c) interest earned on campaign accounts; and
(d) revenue from the sale of election materials.
Total debits
(3) For the purposes of subsection (1), the total debits are the sum of,
(a) the candidate’s expenses under section 67; and
(b) any deficit from a previous election campaign of the candidate if that campaign,
(i) related to an office on the same council or local board as the present campaign, and
(ii) was in the previous regular election or a subsequent by-election.
Surplus paid to clerk
(4) If the candidate’s financial statement or supplementary financial statement shows a surplus and the election campaign period has ended at the time the statement is filed, he or she shall, when the statement is filed, pay the surplus to the clerk with whom the candidate’s nomination was filed, reduced by the amount of any refund under subsection (6).
Surplus held in trust by clerk
(5) The clerk shall hold the amount paid under subsection (4) in trust for the candidate.
Refund
(6) If a candidate who has a surplus or his or her spouse has made contributions to the election campaign, the candidate may, after the election campaign period ends but before filing the financial statement or supplementary financial statement, as the case may be, refund to himself or herself or to the spouse, as the case may be, an amount that does not exceed the lesser of,
(a) the relevant contributions;
(b) the surplus.
27] Subsection 80(1)(b) expressly articulates the following:
80(1)(b) if a document filed under section 78 shows on its face a surplus, as described in section 79, and the candidate fails to pay the amount required by subsection 79 (4) to the clerk by the relevant date.
28] Subsection 80(2)(a) and (b) expressly articulates the statutory office forfeiture penalty and bar from running in the next election are immediately and automatically imposed upon Bigger by the Ontario Legislature because he violated subs. 80(1)(b) :
80(2) (a) the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant; and
(b) until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies.
29] MEA subs. 77(c)(i) evidence Bigger’s supplementary reporting period extended to June 30, 2015 however he was allowed to continue campaigning after his campaign period ended before June 30. There is a distinction between when a campaign ends and the reporting period as the MEA defines the campaign period in s. 68 and defines the reporting period in subs. 77(c)(i).
Filing dates and reporting periods
77. For the purposes of documents to be filed under section 78,
(a) the filing date is,
(i) in the case of a regular election, the last Friday in March following the election, and
(b) the supplementary filing date is the last Friday in September;
(c) the supplementary reporting period is,
(i) in the case of a regular election, the six-month period following the year of the election,
Financial statement and auditor’s report
78. (1) On or before 2 p.m. on the filing date, a candidate shall file with the clerk with whom the nomination was filed a financial statement and auditor’s report, each in the prescribed form, reflecting the candidate’s election campaign finances,
(a) in the case of a regular election, as of December 31 in the year of the election;
Supplementary financial statement and auditor’s report
(2) If the candidate’s election campaign period continues during all or part of the supplementary reporting period, he or she shall, before 2 p.m. on the supplementary filing date, file a supplementary financial statement and auditor’s report for the supplementary reporting period.
Supplementary report
(3) A supplementary financial statement or auditor’s report shall include all the information contained in the initial statement or report filed under subsection (1) and in any previous supplementary statement or report under subsection (2), as the case may be, updated to reflect the changes to the candidate’s election campaign finances during the supplementary reporting period.
30] Bigger did not hold a fundraiser in his supplementary period and the money collected was not collected in one day, but was collected over weeks or months. Each separate contribution Bigger collected after he collected enough money to eliminate his deficit and additional supplementary expenses is another new separate individual provincial offence under subs. 70(2).
31] And there is $9,324.32 of illegal cash collected by Bigger after his campaign period ended. The maximum a person could contribute was $750.00, thus, since he collected the $9,324.32 from several different people there are several separate offences committed by Bigger.
32] MEA subs. 69(1)(m) statutorily required Bigger refund $9,324.32 to contributors before the filing date on the last Friday in September 2015. Had he returned the $9,324.32 before September 25 no offence is committed for accepting cash outside his campaign period as he is required to return it as soon as possible after discovering it was collected in violation of the Act.
33] However the “as soon as possible” saving clause language in subs. 69(1)(m) has a limitation period that ends at 2pm on the September 25 Supplementary filing date. This is so because subs. 69(1)(k), 77(b) and s. 78 statutorily required Bigger file his financial statement before 2pm on the filing date and subs. 69(1)(n), 69(2) and 79(4) statutorily required Bigger give the Clerk the $8,447.71 surplus when he filed his supplementary statement no later than 2pm on September 25 because Bigger did not give the illegally collected contributions back to the contributors before 2pm on the filing date in accordance with subs. 69(1)(m).
Duties of candidate
69. (1) A candidate shall ensure that,
(k) financial filings are made in accordance with sections 78
Filing dates and reporting periods
77. For the purposes of documents to be filed under section 78,
(b) the supplementary filing date is the last Friday in September
Financial statement and auditor’s report
78. (1) On or before 2 p.m. on the filing date, a candidate shall file with the clerk with whom the nomination was filed a financial statement and auditor’s report, each in the prescribed form, reflecting the candidate’s election campaign finances,
(a) in the case of a regular election, as of December 31 in the year of the election;
Supplementary financial statement and auditor’s report
(2) If the candidate’s election campaign period continues during all or part of the supplementary reporting period, he or she shall, before 2 p.m. on the supplementary filing date, file a supplementary financial statement and auditor’s report for the supplementary reporting period.
Supplementary report
(3) A supplementary financial statement or auditor’s report shall include all the information contained in the initial statement or report filed under subsection (1) and in any previous supplementary statement or report under subsection (2), as the case may be, updated to reflect the changes to the candidate’s election campaign finances during the supplementary reporting period.
34] Since Bigger failed to return the illegally collected $9,324.32 to the contributors before 2pm on September 25, 2015 Bigger had a prima facie statutory duty to give that surplus to the Clerk in accordance with subs. 69(n), 69(2) and 79(4) because subs. 69(2) statutorily mandates that this money is the property of the City.
35] Once the supplementary 2pm filing time on September 25 elapsed without Bigger returning the illegal surplus cash to contributors Bigger committed another provincial penal offence for failing his statutory duty of giving the $8,447.71 surplus to the Clerk.
36] Therefore by operation of statute law this $8,447.71 surplus that Bigger stole belongs to the City. The City is incorporated and both the Municipal Act and City of Greater Sudbury Act evidence that the corporation statutorily consist of the inhabitants of the City.
Municipal Act
https://www.ontario.ca/laws/statute/01m25#BK315
Interpretation
1 (1) In this Act,
“municipality” means a geographic area whose inhabitants are incorporated;
City of Greater Sudbury Act, 1999, S.O. 1999, c. 14, Sched. A
https://www.ontario.ca/laws/statute/99c14a?search=189%2F00
Incorporation
2 (1) On January 1, 2001, the inhabitants of the municipal area are constituted as a body corporate under the name “City of Greater Sudbury” in English and “ville du Grand Sudbury” in French.
37] What this means is that Bigger committed $8,447.71 of criminal fraud upon the citizens of Sudbury. Bigger was an elected public official at the time he illegally refunded himself the $8,447.71 as Bigger refunded himself the money before filing his supplementary election campaign statement and before forfeiting office. This means Bigger was still Mayor at the time he stole the money thus it is also criminal breach of trust by an elected public official Mayor.
38] Supreme Court of Canada common law already determined an Act must be read and interpreted as a whole and in its totality to determine its proper context and application. Each provision may not be read in isolation and every provision must be construed with reference to the context of other Act provisions thus subs. 79(6) cannot survive alone unconnected to the regulatory scheme. Moreover, when two provisions in an Act conflict the narrowest and more restrictive provision applies.
39] The purpose of a supplementary period is to eliminate a primary period deficit; not turn a profit or recoup your own or spouse contribution. Subsection 79(6) permits a candidate to refund themselves some of a surplus but this section only applies to a primary campaign period surplus and does not apply to a supplementary campaign period despite the language of subs. 79(6) illogically referring to a candidate refund from a supplementary campaign.
40] This is so because as outlined earlier it is impossible to have a surplus in a supplementary period because by operation of subs. 68(1) 4 iv Bigger’s campaign ended the second he collected enough money to eliminate his $1,010.10 primary period deficit and $1,404.58 of additional campaign expenses incurred in the extended supplementary period.
41] Since subs. 70(2) makes it an offence to accept cash after a campaign period has ended, it prima facie evidences that no surplus can exist in a supplementary period which would be capable of being refunded to a candidate under subs. 79(6) because it was an offence to accept cash after Bigger’s campaign period ended once he collected the alleged $1,010.10 deficit and $1,404.58 in additional expenses incurred in his extended supplementary period.
42] Thus, when the MEA is interpreted as a whole, as it is required by law to be interpreted, subs. 79(6) conflicts with subs. 68(1) 4 iv and 70(2) and Supreme Court of Canada common law dictates that subs. 68(1) 4 iv and 70(2) prevail over subs. 79(6).
43] Bigger prima facie knew that the supplementary period refund in subs. 79(6) has no force or effect because it is impossible to ever come into play due to the operation of subs. 68(1) 4 iv and 70(2). Bigger was aware of s. 68 because he extended his campaign under this section and knew the campaign reporting period ended on June 30 which is only explained in s. 68.
See page 1 of Bigger’s supplementary statement where Bigger filled in the date 2015 / 06 / 30.
44] The language in subs. 79(6) allowing a candidate to refund themselves a supplementary period surplus that was unlawfully collected outside their campaign period is an oversight by the government. In the common law world a person cannot commit an offence (collect money in violation of subs. 70(2)) and financially benefit from the offence committed (refund themselves illegally collected cash that was collected while committing an offence).
45] All provincial Acts expressly state when a guide, handbook or manual can be produced and for a few examples of this please see Health Protection and Promotion Act s. 7.(1); Ombudsman Act s. 15.(1); Ontario Energy Board Act s. 28.6(4); Election Finances Act ss. 2(1)(j) (j.1); 25.2(1), Legislative Assembly Act s. 103(2); Technical Standards and Safety Act, 2000 s. 36.(1); Residential Tenancies Act s. 120; and Ontarians with Disabilities Act, 2001 s. 3.
46] The Supreme Court of Canada is unanimous that governments and people operating under Acts are to be judged by its laws, not by Government handbooks, manuals and guidelines.
See Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3; and Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69 (CanLII), 2000 SCC 69, [2000] 2 S.C.R. 1120.
47] It is irrelevant if a misinformed Liberal printed candidate handbook claims a candidate can refund themselves or their spouse a supplementary surplus because it is of no force or effect as candidates are governed by the actual law and subs. 68(1) 4 iv and 70(2) prevents candidates from collecting cash outside of their campaign period. Therefore, any guidelines or notices issued to candidates by the Clerk or Minister or Ministry that incorrectly states a supplementary period refund is permitted, is not prescribed by law. And even if a surplus is generated due to a supplementary period fundraiser, subs. 69(n) require candidates return the over contribution cash to contributors or give the over contributions to the Clerk on the filing date under subs. 69(2).
48] In the result of all of the above, Bigger does not have a $1,010.10 primary campaign period deficit and Bigger has not been Mayor since the last Friday in March 2015, or, at the latest on the last Friday in September 2015 for failing to give the Clerk the surplus. This is so because he immediately and automatically forfeited office by operation of law on one of these dates.
49] The Clerk was to vet Bigger’s filed supplementary statement and statutorily required to send Bigger the Ontario Legislature default notice declaration on March 27, 2015 and/or on September 25, 2015 which removed him from office. The Clerk failed to send the Ontario Legislature default notice declaration on her own initiative as required and failed to send it even after she was notified by the writer of the fraud Bigger has committed. Instead the Clerk removed Bigger’s supplementary statement from the city’s website, or had it removed, so no one else could see it and see the fraud Liberal Brian Bigger committed.
50] However, it is irrelevant that the Clerk failed in her statutory duty to send Bigger the Ontario Legislature default notice declaration as she was prima facie required to do by operation of subs. 80(3). This is so because the office forfeiture is final and without a route of appeal; is imposed immediately and automatically by the Ontario Legislature by operation of law; and because the office forfeiture is not imposed by the Clerk as the forfeiture occurred before the Clerk was even required to send Bigger the default notice declaration under subs. 80(3).
Notice of default
80(3) In the case of a default described in subsection (1), the clerk shall notify the candidate and the council or board in writing that the default has occurred.
51] The clerk’s failure to send Bigger the Ontario Legislature default notice declaration merely means Carorline Hallsworth is guilty of a neglect of duty corrupt practice under s. 90(6).
Neglect of duty
90(6) A clerk or other election official who wilfully fails to perform a duty imposed by this Act is guilty of an offence that constitutes a corrupt practice.
52] By failing to send Bigger the Ontario Legislature default notice declaration Hallsworth declared MEA subs. 80(2) is inoperative in Ontario and authorized Bigger to be treated as though subs. 80(2) is declared constitutionally invalid notwithstanding that the fact it remains in full force and effect. The administrative office forfeiture provision is already deemed valid by the Supreme Court of Canada and the clerk’s failure to send the default notice declaration means the Clerk single handedly overturned the Supreme Court of Canada decision in Harvey supra.
53] However, in reality there are no MEA curative provisions that can save Bigger. The Ontario Legislature enacted The Good Government Act, 2009 nine years ago that removed all saving clauses and curative provisos formerly embodied in MEA.
Good Government Act, 2009, S.O. 2009, c. 33 - Bill 212
https://www.ontario.ca/laws/statute/S09033
54] A court cannot provide Bigger relief from the office forfeiture under the Court of Justice Act s. 98 because the penalty is imposed by the Ontario Legislature by operation of statute.
55] Like all penalties imposed by operation of law, no appeal is provided for and relief of the office forfeiture penalty cannot be obtained from any court at any time under any Act. The principles of equity and justice are universal in the common-law courts of the world and the rule is that equity does not aid a party at fault.
56] This maxim has been variously expressed:
- No one is entitled to the aid of a court of equity when that aid has become necessary through his or her own fault.
- Equity does not relieve a person of the consequences of his or her own carelessness.
- A court of equity will not assist a person in extricating himself or herself from the circumstances that he or she has created.
- Equity will not grant relief from a self-created hardship.
In R. v. Can, Nor. Ry., 64 S.C.R. 264, affirmed [1923] A.C. 714 (P.C.) on the link below is binding authority to the effect that the court cannot relieve against statutory forfeiture.
http://www.canlii.org/en/ca/scc/doc/1922/1922canlii31/1922canlii31.pdf
57] The Chief Justice in R. v. Can expresses the opinion that if the power given to the court to relieve against penalties applied to statutory penalties, this would, in effect, be giving an authority to enable the court to repeal statutes. Thus the jurisprudence as confirmed by the Supreme Court of Canada is that there is no “forfeiture” from which the court under the provisions of the CJA can grant relief.
58] Ontario Judges are bound by the above Supreme Court of Canada ruling thus every judge who provided a candidate relief from forfeiture had no power to do so.
59] Because Bigger violated MEA subs. 80(1)(b) Bigger is also barred from being a candidate in the 2018 municipal election as the Ontario Legislature expressly imposed the bar penalty upon Bigger under subs. 80(2)(b) immediately and automatically at 2pm on his primary filing date of March 27, 2015 and/or at 2pm on the supplementary filing date of September 25, 2015.
60] Bigger is and was aware of the MEA and requirements therein because he ran for office and was elected under that Act. Prior to the primary and supplementary campaign financial statement filing dates Bigger was given two advance notices by the Clerk of the MEA penalties he faced under the Act, and once by registered mail, as evidenced in s. 33.1 and subs. 78(6).
Notice of penalties
33.1 The clerk shall, before voting day, give to each person nominated for an office notice of the penalties under subsections 80 (2) and 92 (5) related to election campaign finances.
Notice by clerk
78(6) At least 30 days before the filing date, the clerk shall give every candidate whose nomination was filed with him or her notice, by registered mail,
(a) of all the filing requirements of this section; and
(b) of the penalties set out in subsections 80 (2) and 92 (5).
Deemed time of receipt
(6.1) The notice is deemed to have been received on the fifth day after mailing.
Same
80(2) In the case of a default described in subsection (1),
(a) the candidate forfeits any office to which he or she was elected and the office is deemed to be vacant; and
(b) until the next regular election has taken place, the candidate is ineligible to be elected or appointed to any office to which this Act applies.
Offences by candidate
92(5) A candidate is guilty of an offence and, on conviction, in addition to any other penalty that may be imposed under this Act, is subject to the penalties described in subsection 80 (2), if he or she,
(a) files a document under section 78 or 79.1 that is incorrect or otherwise does not comply with that section;
61] Bigger was also statutorily required by operation of Legislation Act s. 13 to take judicial notice of the MEA requirements and penalties he faced therein.
Legislation Act
https://www.ontario.ca/laws/statute/06l21
Judicial notice
13. Judicial notice shall be taken of the enactment and contents of an Act.
62] However at his own peril Bigger willfully and deliberately failed to take judicial notice of the MEA and penalties therein and instead he decided to steal $8,447.71 from the City of Greater Sudbury and forfeit the mayor’s office at the very same time.
63] The MEA is required to be read in a way that makes sense of its obvious purpose and the clerk’s deliberate failure to send Bigger the Ontario Legislature’s default notice declaration does not mean Bigger did not forfeit office as forfeiting office is an unequivocal requisite and condition precedent before the Clerk even has to send the declaration. The MEA explicitly imposes an absolute obligation on the Clerk to review Bigger’s campaign statement for accuracy once filed. This is a factual inquiry and this statutory duty is paramount as the Clerk is the Election Returning Officer under the MEA and was entrusted by the Ontario Legislature with the duty of ensuring compliance with the MEA. Section 80(2) articulates the words “in case of a default described in subs. 80(1)”, thus it is by operation of law as described in subs. 80(1); not in the opinion of the Clerk.
64] Any default is incurable and not capable of remedy and the clerk’s failure to send the Ontario Legislature’s default notice declaration does not act as saving provision. As the Clerk is charged with conducting elections subs. 80(3) conferred a duty on the Clerk by statute that must be exercised according to law. This obligation must be fulfilled correctly as the Ontario Legislature already deemed the mayor’s office vacant and Clerks are statutorily required to implement judicial decisions. The implementation of a judicial decision is an operational act and as the office forfeiture and vacant office declaration is a legal instrument of the Ontario Legislature that was issued by operation of law, the Clerk’s failure to send Bigger the Ontario Legislature’s default notice declaration is a breach of a duty to implement a judicial decree.
See Holland v. Saskatchewan, [2008] 2 SCR 551, http://canlii.ca/t/1zfdc at para. 14.
65] Since Bigger was paid half a million dollars in salary and benefits despite not being mayor, both Bigger and the Clerk are responsible for reimbursing the City the half a million dollars that the Clerk allowed Bigger to defraud the City of due to her deliberate failure to send Bigger the Ontario Legislature’s default notice declaration. Numerous decisions have recognized the right of the Minister to bring a common law action for restitution.
See Ontario (Minister of Finance) v. Progressive Casualty Insurance Co. of Canada¸ 2009 ONCA 258 (CanLII), 2009 ONCA 258; Ontario (Finance) v. Pilot Insurance Company, 2008 CanLII 8611 (ON SC), 2008 CanLII 8611 (ONSC); Ontario (Finance) v. Ward, 2007 CanLII 44811 (ON SC), 2007 CanLII 44811 (ONSC).
66] The fact that these cases above involve accident benefit claims is not a reason to distinguish them, thus the principle therein also applies to a Minister bringing an action against a City Clerk for restitution on behalf of the City of Greater Sudbury.
67] In addition to all of the above, Bigger’s primary and supplementary campaign financial statements are incorrect; do not add up; and contain omissions and false amounts reported.
Election campaign finance offences
Offences by candidate
92(5) A candidate is guilty of an offence and, on conviction, in addition to any other penalty that may be imposed under this Act, is subject to the penalties described in subsection 80 (2), if he or she,
(a) files a document under section 78 or 79.1 that is incorrect or otherwise does not comply with that section;
68] In Bigger’s primary period financial statement on the link below (hereinafter primary statement) Bigger failed to report a $298.32 in-kind contribution made by Allman Publishing and Printing Limited that relates to Bigger’s November 27, 2014 primary period fundraiser at the Caruso Club.
(See this primary period $298.32 in-kind contribution that Bigger only reported in his supplementary campaign financial statement on page 11 of Bigger’s supplementary statement)
69] In-kind contributions are also required to be reported as an expense and Bigger also failed to report this $298.32 amount as an expense. Therefore Bigger committed two offences as his primary statement on the link below is incorrect and does not comply with s. 78 as Bigger failed to report the primary period income; and also failed to report the primary period expense.
https://www.greatersudbury.ca/sudburyen/assets/File/Brian%20Bigger%20-%20Primary%20Filing.pdf
70] In Bigger’s primary statement on the link above Bigger also deliberately failed to report an entire primary period fundraiser he held at the Ambassador Hotel on October 2, 2014.
71] Therefore Bigger committed another offence because his primary statement on the link above is incorrect and does not comply with s. 78 as he failed to report the October fundraiser.
72] However, in his primary statement Bigger did report the $1,344.70 of expenses he incurred holding the October primary period fundraiser. This is so because in Bigger’s August 11, 2014 to December 31, 2014 primary statement Bigger reports $13,506.38 in advertising expenses in the Box C “subject to the spending limit” advertising line and this $13,506.38 amount includes the $1,344.70 radio advertising expense he incurred for the October fundraiser.
(See the $13,506.38 amount on page 2 on link above)
73] In Bigger’s supplementary campaign period financial statement (hereinafter supplementary statement) for August 11, 2014 to June 30, 2015, Bigger reports a reduced $12,161.68 amount in advertising expenses in the Box C “subject to spending limit” advertising line. This is a difference of $1,344.70 from the $13,506.38 he reported in his primary statement.
(See reduced Box C “subject to spending limit” amount of $12,161.68 on page 2 of Bigger’s supplementary statement. For clarity, $13,506.38 minus $12,161.68 equals $1,344.70)
74] Therefore, in his supplementary statement Bigger removed the $1,344.70 from the $13,506.38 advertising amount in the Box C “subject to the spending limit” advertising line and moved this $1,344.70 to the Box C fundraiser line that is “not subject to the spending limit”.
75] On page 12 in Bigger’s primary statement on link below Bigger claimed $6,497.50 in the Box C “not subject to the spending limit” line. This $6,497.50 is not for his October Ambassador Hotel fundraiser; it is for his November 27, 2014 Caruso Club primary period fundraiser.
https://www.greatersudbury.ca/sudburyen/assets/File/Brian%20Bigger%20-%20Primary%20Filing.pdf
Note: page 12 of Bigger’s primary statement shows $6,498.50 and in Box C on page 2 it shows $6,497.50, a discrepancy of $1. The writer relies on $6,497.50 for purposes of this narrative.
76] In his supplementary statement Bigger now claims $8,140.52 in the Box C “not subject to the spending limit” fundraiser line. The primary statement amount of $6,497.50 increased to $8,140.52 in his updated supplementary statement because Bigger moved the October 2, 2014 fundraiser expense of $1,344.70 from the Box C advertising line to the Box C fundraiser line.
(See the $8,140.52 amount on the fundraiser line on page 2 of Bigger’s supplementary statement. For clarity, $6,497.50 plus $1,344.70 equals $7,842.20)
77] In Bigger’s supplementary statement Bigger also added the $298.32 ticket printing expense for his November fundraiser to the Box C “not subject to that spending limit” fundraiser line which brings the total to the reported amount of $8,140.52. ($6,497.50 plus $1,344.70 plus $298.32 equals $8,140.52).
78] As noted, Bigger failed to report the $298.32 in his primary statement and only reports it in his supplementary statement after he got caught failing to report it in his primary statement.
(See the $298.32 in-kind primary campaign period contribution that Bigger finally reported in Bigger’s supplementary statement on page 11)
79] Box C on a candidate’s campaign financial statement has three parts. Part one requires a candidate to report all income on line C1. The expense portion in Box C on the campaign financial statement has two parts. Part one is line C2 which is “subject to the spending limit” and part two is line C3 that is “not subject to the spending limit”. Moving an expense from the “subject to spending limit” portion of Box C (line C2) to the “not subject to the spending limit” (line C3), or, moving an expense from the “not subject to the spending limit” (line C3) to the “subject to the spending limit” (line C2) does not matter because C2 and C3 are added together to get a grand total for line C4. Therefore moving an expense from C2 to C3, or moving an expense from C3 to C2, does not change the grand total on line C4 and when Bigger moved the $1,344.70 from the Box C “subject to the spending limit” to the Box C “not subject to the spending limit” it did not change his total expense amount in C4. The income amount in C1 minus the expense amount in C4 determines whether the candidate has a surplus or deficit then this surplus or deficit amount is reported on line D1 in Box D.
80] On March 26, 2015 Bigger swore under oath when he filed his primary statement with the City Clerk that he had a deficit of $1,010.10 in his primary period.
(See Bigger’s sworn signature on page 1 on link below)
https://www.greatersudbury.ca/sudburyen/assets/File/Brian%20Bigger%20-%20Primary%20Filing.pdf
81] However, Bigger also failed to report in his primary statement the $372.19 in-kind contribution income from the Ambassador Hotel who hosted his October fundraiser.
(See the $372.19 in-kind primary campaign period contribution that Bigger finally reported in Bigger’s updated supplementary statement on page 11. For clarity, Bigger only reported the $372.19 contribution in his supplementary statement after he got caught failing to report the $372.19 contribution in his primary statement)
82] In-kind contributions are also an expense and Bigger failed to report this same $372.19 expense in his primary statement.
83] In-kind contributions balance and cancel themselves out because they are reported as income and reported as an expense. In-kind contributions do not help in determining whether or not a candidate has a surplus or deficit. For example, if you have a $372.19 in-kind expense you add it to your other expenses which increase your expenses by $372.19. However you must also add this $372.19 in-kind income to your other income which increases your income by $372.19 which is the same amount as the $372.17 in-kind expense so it cancels itself out when calculating a surplus or deficit.
84] All in-kind contributions must be reported in Table 4 of a candidate’s statement and Table 4 expressly articulates in-kind contributions must also be recorded as an expense in Box C.
(See the explanation about how in-kind contributions “must be recorded as an expense in Box C” on the top right of Table 4 on page 7 in Bigger’s supplementary statement)
85] Bigger was subject to a meeting regarding other discrepancies in his mayoral election, and, in 2016, the Sudbury Star reported that Liberal Gerry Lougheed Jr. hosted Liberal Brian Bigger’s second primary period fundraiser on November 27, 2014.
At issue are two fundraisers. The first took place Oct. 2, 2014, at the Ambassador Hotel and the second was hosted by Gerry Lougheed Jr. at the Caruso Club on Nov. 27, 2014.
https://www.thesudburystar.com/2015/12/08/sudbury-filings-raise-questions/wcm/c68855d1-c2c2-ad71-8f61-8d671a941f60
86] I believe you know Gerry Lougheed Jr. is known for covertly interfering with a provincial by-election in Sudbury on behalf of the Liberal Party in February 2015. See video below.
https://www.youtube.com/watch?v=Cm8bp9ZKUQU
87] Bigger did not report any expense for renting the Caruso Club for his November fundraiser and he did not report any in-kind contribution for the rental of the Caruso Club as he was statutorily required to do.
88] In-kind contributions are both an expense and a contribution and MEA subs. 69(1)(i) and (ii) requires all in-kind contributions be given a value and be reported in Bigger’s campaign financial statements, however, Bigger failed report this Caruso Club rental hall fee, or, this in-kind contribution and in-kind expense.
Duties of candidate
69. (1) A candidate shall ensure that,
(f) records are kept of,
(i) the receipts issued for every contribution,
(ii) the value of every contribution,
(iii) whether a contribution is in the form of money, goods or services, and
(iv) the contributor’s name and address;
(j.1) the records described in clauses (f), (g), (h), (i) and (j) are retained by the candidate for the term of office of the members of the council … and until their successors are elected and the newly elected council or local board is organized;
89] If Bigger rented the hall himself then Bigger committed another offence because his campaign statements are incorrect and do not comply with s. 78 because no fundraising hall rental fee expense was reported.
90] If the hall rental fee is an in-kind contribution by a contributor then Bigger commits two offences, and not one, because the in-kind rental fee is to be reported as an income and also to be reported as an expense and Bigger failed to report this income and this expense.
Offences by candidate
92(5) A candidate is guilty of an offence and, on conviction, in addition to any other penalty that may be imposed under this Act, is subject to the penalties described in subsection 80 (2), if he or she,
(a) files a document under section 78 or 79.1 that is incorrect or otherwise does not comply with that section;
91] The writer is unaware how much it cost to rent the Caruso Club as Bigger failed to report the rental fee expense, but it cost hundreds of dollars. Bigger spent $6,497.50 on food and collected $20,450.00 in cash so it was a large hall as there were a lot of people in attendance.
(See the $6,497.50 food expense on page 11 in Bigger’s supplementary statement)
92] Since Liberal Gerry Lougheed Jr. hosted the fundraiser the Caruso Club rental fee was a primary period in-kind contribution made by Lougheed. Since renting the Caruso Club cost hundreds of dollars, Lougheed therefore made a several hundred dollar in-kind contribution to Bigger in his primary period which Bigger failed to report.
93] The maximum amount a person can contribute to one candidate in an election was $750.00.
Maximum, each candidate
71. (1) A contributor shall not make contributions exceeding a total of $750 to any one candidate in an election.
94] A contributor cannot give Bigger a several hundred dollar in-kind rental hall contribution in his primary period then give $750.00 cash in his supplementary campaign period (hereinafter supplementary period) as the maximum contribution is $750.00 for the entire campaign.
95] In addition to Lougheed’s Caruso Club primary period in-kind rental fee contribution, Bigger’s supplementary statement evidence Liberal Gerry Lougheed Jr. gave Liberal Brian Bigger $750.00 in cash in Bigger’s supplementary period.
(See Lougheed’s $750.00 cash contribution on page 9 eight names up from bottom of the page in Bigger’s supplementary statement)
96] The $750.00 is not reported as an in-kind contribution in Schedule 1 Part II Table 4 so the $750.00 in the supplementary statement is not for the Caruso Club rental fee in-kind contribution that Liberal Gerry Lougheed Jr. made to Liberal Brian Bigger in Bigger’s primary period.
(See Table 4 on page 11 of Bigger’s supplementary statement)
97] Furthermore, when you add up the cash contributions Bigger collected from contributors in his supplementary period, it proves Lougheed gave Bigger $750.00 in cash in his supplementary period on top of the several hundred dollar Caruso Club rental fee in-kind contribution Lougheed made to Bigger in Bigger’s primary period. Therefore well known Liberal Gerry Lougheed Jr. illegally gave Liberal Brian Bigger more than the $750.00 maximum amount and committed a MEA offence by doing so.
General offence
94. A person who contravenes any provision of this Act is guilty of an offence.
98] Liberal Brian Bigger committed yet another offence by accepting more than the permitted $750.00 maximum amount from well known Liberal election manipulator Gerry Lougheed Jr.
(Bear in mind there is no limit on how many compliance audits can be filed against one candidate. The compliance meeting in 2016 was not in regard to arguments herein so the outcome of that meeting is irrelevant. The Audit Committee decision is wrongly decided as they falsely claim Bigger corrected, in his supplementary statement, errors Bigger made in the primary statement. Bigger did not correct them and is not allowed to correct anything after statements are filed as the Legislature removed curative clauses when it enacted The Good Government Act 2009 and the Liberal Compliance Committee deliberately ignored this fact)
https://www.thesudburystar.com/2016/01/05/hearing-clears-sudburys-mayor/wcm/1f4ba5df-4b01-f4c8-ba30-e0cfa327c89f
99] Bigger also failed to report the $200.00 nomination fee refund income in his primary statement. Therefore, as Bigger failed to report this $200.00 of income, prima facie Bigger did not have a $1,010.10 deficit as of December 31, 2014.
100] The Clerk refunded Bigger the $200.00 nomination fee before December 31, 2014 thus this same Clerk knew by simply looking at Bigger’s primary statement that Bigger did not have a $1,010.10 deficit because this same Clerk knew by simply looking at Bigger’s primary statement that Bigger failed to report in Box C the $200.00 income that this same Clerk gave Bigger.
(See Box C on page 2 of Bigger’s primary campaign statement on link below)
https://www.greatersudbury.ca/sudburyen/assets/File/Brian%20Bigger%20-%20Primary%20Filing.pdf
101] Both Dan Melanson and Jeffery Huska ran for Mayor against Bigger in 2014 and both of their primary statements evidence that the Clerk refunded all eligible candidates the $200.00 nomination fee during their primary period and before December 31, 2014.
(See their $200 refunds in their primary campaign period statements on pages 17 and 18 for Melanson and pages 19 and 20 for Huska statements)
102] Since the Clerk refunded Bigger the $200.00 nomination fee before December 31, 2014, just like she refunded Melanson, Huska and 27 councillor candidates, it means Bigger did not have a $1,010.10 primary period deficit on December 31, 2014 as Bigger fraudulently reported.
103] The Clerk also knew Bigger did not have a balanced supplementary period on June 30, 2015 as Bigger fraudulently reported because the Clerk knew by simply reading Bigger’s Licenced Auditor’s report that Bigger’s Auditor states Bigger has a supplementary deficit.
104] For clarity, the MEA makes a distinction between income and cash despite both being a contribution and both being income. An in-kind contribution is income but it is not cash, and is instead a good or service contribution provided by a contributor to Bigger. Therefore in-kind contributions cannot be deposited into Bigger’s campaign bank account because it is not cash.
105] A candidate cannot spend an in-kind contribution to pay expenses because it is not cash.
106] All in-kind contributions are reported in Schedule 1 Part II Table 4.
107] All cash contributions collected from individuals (other than from the candidate or spouse) of more than $100.00 is reported in Schedule 1 Part II Table 1 and Table 1 of Bigger’s primary statement evidence that he collected $19,880.00 in cash in his primary period from contributors who gave more than $100.00.
(See this $19,880.00 reported in Bigger’s primary statement on page 10 in link below)
https://www.greatersudbury.ca/sudburyen/assets/File/Brian%20Bigger%20-%20Primary%20Filing.pdf
108] In Bigger’s updated supplement statement, Bigger reports $23,630.00 in Schedule 1 Part II Table 1; therefore Bigger collected an additional $3,750.00 in cash in his supplementary period from contributors who gave over $100.00.
(See this $23,630.00 reported in Bigger’s supplementary statement on pages 5 and 9)
109] All cash contributions collected from corporations and unions is reported in Schedule 1 Part II Table 2 and Table 2 of Bigger’s primary statement evidence that he collected $20,050.00 in cash in his primary period from corporations and unions.
(See this $20,050.00 reported in Bigger’s primary statement on pages 10 and 11 in link above)
110] In Bigger’s updated supplementary statement, Bigger reports $27,739.00 in Schedule 1 Part II Table 2; therefore Bigger collected an additional $7,689.00 in cash in his supplementary period from corporations and unions.
(See this $27,739.00 in Bigger’s supplementary statement on pages 6 and 10)
111] All contributions not exceeding $100.00 per contributor are reported in Schedule 1 Part I line 3 and line 3 of Bigger’s primary statement evidence that he collected $3,889.01 in cash in his primary period from people giving less than $100.00.
(See this $3,889.01 in Bigger’s primary statement on page 4 in link below)
https://www.greatersudbury.ca/sudburyen/assets/File/Brian%20Bigger%20-%20Primary%20Filing.pdf
112] In Bigger’s updated supplementary statement, Bigger reports $3,989.01 in Schedule 1 Part I line 3; therefore Bigger collected an additional $100.00 in cash in his supplementary period from contributors who gave less than 100.00.
(See this $3,989.01 in Bigger’s supplementary statement on page 4)
113] Bear in mind Sudbury Star reported that the increase of $100.00 might have been a typo in Bigger’s supplementary statement, and if it is a typo, then Bigger has $100.00 less income.
There is also a discrepancy of $100 between the two reports regarding the total value of contributions not exceeding $100 per contributor; however, this looks like it could be the result of a typo.
https://www.thesudburystar.com/2015/12/08/sudbury-filings-raise-questions/wcm/c68855d1-c2c2-ad71-8f61-8d671a941f60
114] All in-kind contributions are reported in Schedule 1 Part II Table 4. In Bigger’s primary statement Bigger reports no in-kind contributions. In Bigger’s updated supplementary statement Bigger reports $670.51 in in-kind contributions.
(See this $670.51 in Bigger’s supplementary statement on page 11 in the attachment to this email. Note: this $670.51 was to be reported in Bigger’s primary statement not his supplementary statement, but Bigger failed to report it in his primary statement and only reported it in his supplementary statement after he got caught not reporting it in his primary statement)
115] Therefore, in Bigger’s supplementary period Bigger collected $11,539.00 in new cash and he reported $670.51 in in-kind contributions for a total income of $12,209.51.
116] However as mentioned, cash and income are two separate different distinct things and a candidate cannot spend or refund themselves an in-kind contribution because it is not cash.
117] In the result, despite having $12,209.51 in income Bigger only has $11,539.00 in cash in his campaign bank account in his supplementary period. Bigger therefore does not have enough cash in his bank account in his supplementary period to do what he swore under oath he did.
118] In Bigger’s supplementary statement Bigger swore under oath that he paid out $12,111.19 of cash to pay off expenses and refunded himself $8.447.71. However, Bigger started his supplementary period with a $1,010.10 deficit and Bigger only collected $11,539.00 in cash in the supplementary period. This $1,010.10 deficit is for election purchased goods and services in his primary period and must be paid off with cash collected in his supplementary period as Bigger reports he was $1,010.10 short of cash in his primary period.
119] Therefore from the $11,539.00 in cash Bigger collected in his supplementary period Bigger swore under oath that he refunded himself $8,447.71 leaving him with $3,091.29 in cash.
120] He swore under oath that he paid $1,404.58 in cash to businesses for his newly incurred supplementary period expenses leaving him with $1,686.71 in cash.
121] He swore under oath that he paid the clerk $1,248.80 in cash with money collected in his supplementary period which left Bigger with $437.91 in cash.
122] Bigger only has $437.91 in cash left yet Bigger swore under oath that he also paid off the $1,010.10 deficit that he owed private sector businesses in his primary period.
123] However, Bigger did not collect enough cash in his supplementary period to pay out all the money he claims to have paid out.
124] If Bigger paid out the $12,111.19 that he swore he paid, Bigger has a $572.19 deficit in his supplementary period because he only had $11,539.00 in cash. Bigger swore under oath the Clerk only gave him the $200.00 nomination fee refund in his supplementary period and he used this $200.00 to reduce his $572.19 deficit so $572.19 minus $200.00 equals a $372.19 deficit.
125] Bigger does not report a supplementary period deficit; he reports a balanced campaign.
126] And if the $100.00 increase in income from contributors giving less than $100.00 was a typo, as the Sudbury Star reported, then Bigger has a $472.19 deficit and not a $372.19 deficit.
127] For clarity, Bigger collected $11,539.00 in cash in his supplementary period ($7,689.00; $3,750.00; $100.00 equals $11,539.00). Bigger paid out $12,111.19 in cash in his supplementary period as he refunds himself $8,447.71; paid $1,404.58 in supplementary expenses; paid the Clerk $1,248.80; paid $1,010.10 to businesses to clear his primary period deficit; which equals $12,111.19 and $12,111.19 minus $11,539.00 equals a $572.19 deficit. Bigger claims the Clerk gave him the $200.00 nomination fee refund in his supplementary period so he had $11,739.00 in total cash. Bigger spent the $200.00 on the $12,111.19 he claims he paid out; so $572.19 deficit minus $200.00 income left Bigger with a $372.19 deficit in his supplementary period.
(See the $200.00 nomination fee refund on page 2 of Bigger’s supplementary statement)
128] For further clarity, if you take the total income on line C1 in Bigger’s supplementary statement ($64,979.72) and minus the total income on line C1 in Bigger’s primary statement ($53,819.01) it makes it appear that Bigger only collected an additional $11,160.71 in new income in his supplementary period and not the $11,739.00 that the writer is using in this narrative. However $670.51 of this $11,160.71 amount is in-kind contributions and not cash. Therefore it makes it appears that Bigger only collected $10,490.20 in new cash in his supplementary period, and not $11,739.00. However you must add to this $10,490.20 amount the $1,248.80 in cash that Bigger gave the Clerk in his supplementary period as evidenced in Schedule 1 line 6. Therefore, $10,490.20 plus $1,248.80 equals $11,739.00. This $11,739.00 is the same amount the writer claims Bigger raised in this narrative. Bear in mind the $64,979.72 mentioned above includes the $200.00 nomination fee refund evidenced on page 2 in Bigger’s supplementary statement and also includes the $670.51 in-kind contributions evidenced on page 11 in Bigger’s supplementary statement. However, once again, $670.51 of this $11,160.71 amount mentioned above is in-kind contributions and not cash. Therefore when you subtract the $670.51 in-kind contributions from the $11,160.71 it equals $10,490.20 in cash. Bigger therefore fraudulently claims in Box C that he only collected $10,490.20 in new cash in his supplementary period when Schedule 1 Part II; Table 1; Table 2; Table 4 plus the $200.00 nomination refund prima facie evidence Bigger collected $11,739.00 in cash in his supplementary period. Therefore, the $10,490.20 amount and $11,739.00 amount do not match.
129] As noted earlier, Bigger failed to report in his primary statement the October 2014 fundraiser and the $1,248.80 cash income he collected at the October fundraiser. Bigger only reported the October fundraiser and $1,248.80 of cash income in his supplementary statement after he got caught failing to report it in his primary statement. Bigger reports the $1,248.80 cash income in Schedule 2 Part II of his supplementary statement. Schedule 2 Part II articulates the $1,248.80 fundraiser cash income must also be reported in Schedule 1.
(See Schedule 2 Part II articulating that the “Total Part II revenue must be included in Schedule 1” on page 13 in Bigger’s supplementary statement)
130] However, Bigger failed to report the $1,248.80 cash income in Schedule 1 of his supplementary statement. Bigger then deducts the $1,248.80 amount from his income in Schedule 1 Part I line 6 without first reporting the $1,248.80 as income in Schedule 1 as he was statutorily required to do. Failing to report the $1,248.80 cash income amount in Schedule 1 is why it appears Bigger only collected an additional $10,490.20 in cash in his supplementary statement as described above. ($10,490.20 plus $1,248.80 equals $11,739.00) For clarity, in Schedule 1 of Bigger’s supplementary statement, the reported amount of $52,039.51 on line 4 is from cash and in-kind amounts reported in Table 1 to 4. Fundraising income is reported in Schedule 2. Bigger failed to report in Schedule 1 the $1,248.80 income from Schedule 2. Bigger therefore committed another offence because his supplementary statement is incorrect and does not comply with s. 78 as the $1,248.80 income is not reported in Schedule 1.
131] Bigger claims a supplementary period surplus of $8,447.71; however, if he paid out all of the $12,111.19 amount Bigger would only have an $8,075.52 surplus, and not $8,447.71, because he is short $372.19 of cash to pay the $12,111.19 that he alleges he paid out.
132] In Bigger’s updated supplementary statement, Bigger finally reported in Table 4 the $372.19 in-kind expense for the primary period October Ambassador Hotel in-kind contribution.
(See Table 4 in Bigger’s supplementary statement on page 11)
133] However despite reporting the $372.19 in Table 4, Bigger failed to report this $372.19 amount in Box C in both his primary and supplementary statements.
(See Box C in Bigger’s updated supplementary statement on page 2)
134] For clarity, the $372.19 was to be reported in Bigger’s primary statement, but Bigger failed to report it. Bigger only reported it in his supplementary statement after he got caught not reporting it in his primary statement. In his updated supplementary expenses that are reported in the updated supplementary statement, Bigger failed to include this $372.19 expense amount in Box C. As explained earlier on page 49 of this narrative, the $8,140.52 of expenses reported in the Box C “not subject to the spending limit” fundraiser line is already accounted for. ($6,497.50 for November 2014 fundraiser food; $1.344.70 for October 2014 fundraiser advertising; $298.32 for November 2014 fundraiser ticket printing; and $6,497.50 plus $1,344.70 plus $298.32 equals $8,140.52). Bigger reported the $372.19 in-kind contribution as income in Box C as he was required to do, but he failed to report the $372.19 expense in Box C as required.
135] The top right of the Table 4 Form articulates the $372.19 contribution must also be reported as an expense in Box C. This is required because expense amounts in Box C are used to determine a surplus or deficit while Table 4 is not used to determine if a candidate has a surplus or deficit.
136] Bigger therefore committed another offence because his supplementary statement is incorrect and does not comply with s. 78 as the $372.19 expense in Table 4 is not reported in Box C.
137] Campaign financial statements are statutorily required to be true and accurate and are determined by factual numbers and not determined by fictional numbers added to the statements by a corrupt candidate. Bigger’s supplementary statement evidence that when Bigger cooked his campaign books he used this $372.19 in-kind contribution as cash to pay off his expenses which is impossible to do as in-kind contributions are not cash.
138] Bigger using the $372.19 in-kind contribution as cash is evidenced by Bigger’s false claim that the Clerk only refunded him the $200.00 nomination fee in his supplementary campaign period. This $200.00 plus the $372.19 in-kind contribution equals $572.19. When $572.19 is added to the $11,539.00 he collected in his supplementary period, it equals $12,111.19. This $12,111.19 is the amount Bigger claims he paid out in cash and includes the $8,447.71 surplus refunded to himself. However candidates cannot use in-kind contributions as cash because it is not cash; it is a good or service provided to Bigger by a private sector business.
139] Therefore Bigger did not pay out $12,111.19 as he fraudulently reported because he did not have enough cash to pay out $12,111.19 as he only had a total of $11,739.00 in cash.
140] Moreover, MEA s. 69(1)(c) statutorily requires all (not some) payments for expenses are made from a candidate’s campaign bank account. Bigger did not pay $12,111.19 of expenses out of his bank account as he never had $12,111.19 in his bank account; as he only had $11,739.00.
Duties of candidate
69. (1) A candidate shall ensure that,
(a) one or more campaign accounts are opened at a financial institution, exclusively for the purposes of the election campaign and in the name of the candidate’s election campaign;
(b) all contributions of money are deposited into the campaign accounts;
(c) all payments for expenses, except for a nomination filing fee, are made from the campaign accounts;
141] Bigger’s collected $11,739.00 in cash in his supplementary period and since Bigger’s campaign ended once he collected $2,414.68, Bigger illegally collected $9,324.32 more in cash than he was legally permitted to collect.
142] Bigger was not allowed to continue collecting money to refund himself $8,447.71 because his campaign ended once he collected a total of $2,414.68. Bigger was also not allowed to continuing collecting money to give the Clerk $1,248.80 in his supplementary period because his campaign period ended once he collected $2,414.68.
143] Bigger used $1,248.80 of the $9,324.32 in extra cash that he illegally collected after his supplementary period ended to pay the Clerk $1,248.80.
(See the $1,248.80 supplementary period payment to the Clerk on line 6 of page 4 in Schedule 1 Part I of Bigger’s supplementary statement)
144] Bigger provides no explanation of why in his supplementary period he gave the Clerk $1,248.80 that equals the same $1,248.80 he collected at the October primary period fundraiser.
145] For clarity, Schedule 2 in the supplementary statement evidence Bigger collected $1,248.80 at the October primary period fundraiser.
(See $1,248.80 on page 13 in attachment to this email). Bigger reports a $1,010.10 primary statement deficit. Bigger did not give the Clerk $1,248.80 in his primary period as he reports a deficit on December 31, 2014 and, as noted on page 55 of this narrative, his supplementary statement evidence that he collected, after December 31, 2014, the $1,248.80 that he gave to the Clerk. Moreover, all of the cash he collected in his primary period is accounted for in his primary statement and it does not include the $1,248.80 he gave the Clerk. Bigger also collected the $1,248.80 that he gave to the Clerk after his supplementary campaign ended because his campaign ended once he collected $2,414.68. This $2,414.68 amount is already accounted for and does not include the $1,248.80 he gave the Clerk ($1,010.10 primary deficit plus $1,404.58 in supplementary expenses equals $2,414.68).
146] It is not possible Bigger was not aware of the $1,248.80 he collected at the October primary period fundraiser as he held the event and the cash was given to him. The $1,248.80 was also to be deposited into his campaign bank account in accordance with MEA subs. 69(1)(b).
147] Since Bigger failed to report the $1,248.80 in his primary statement Bigger does not have a $1,010.10 primary period deficit as he has a $438.70 surplus. Since Bigger has a surplus he cannot extend his campaign beyond December 31, 2014 to continue collecting money to refund to himself. If the $1,248.80 of income in already included in the $53,819.01 of cash reported in his primary statement C1 line, then Bigger spent the $1,248.80 during his primary period because the entire $53,819.01 is accounted for in his primary statement. If the $1,248.80 is already reported in his primary statement C1 line, then there was no reason to give the Clerk $1,248.80 in his supplementary period other than to falsely claim a primary period deficit which allowed him to extend his campaign and illegally continue collecting money to refund to himself.
148] As Bigger had a primary period surplus his campaign ended December 31, 2014. Thus Bigger committed three more offences as MEA subs. 76(2) makes it an offence for him to incur expenses outside of his campaign period and his reported $1,404.58 supplementary expenses were incurred from three separate different distinct expenses after his primary period ended.
Expenses
Only during election campaign period
76(2) An expense shall not be incurred by or on behalf of a candidate outside his or her election campaign period.
149] Bigger spent $10,000.00 on his own campaign and still had a large deficit on Election Day. Liberal Brian Bigger clearly wanted to recoup his $10,000.00 so he had Liberal fundraiser Gerry Lougheed Jr. host a November 27, 2014 fundraiser. Bigger spent $6,497.50 on meals and collected $20,450.00 cash so he only cleared $13,658.68. However, Bigger only collected enough cash to refund himself $438.70 of the $10,000.00 he spent on his own campaign. Bigger was not happy about this so he decided to deliberately fail to report in his primary statement the $1,248.80 in cash he collected from the October 2, 2014 fundraiser (and the $200.00 nomination fee refund) to show on paper a deficit so he could extend his campaign with a master plan of campaigning until June 30, 2015 to recoup as much of the $10,000.00 that he spent on his own campaign, which is exactly what Bigger did when he illegally refunded himself $8,447.71.
150] Bigger’s October 2, 2014 fundraiser was advertised in advance with a $20.00 adult admission and $5.00 student admission. Once Bigger got caught failing to report this primary period fundraiser Bigger changed his story and said admission was by pass the hat contribution. Even if his new pass the hat story were true, MEA subs. 69(1)(e) and (f) required Bigger issue and keep receipts for every pass the hat contribution. All contributions of less than $10.00 are reported in Schedule 2 Part III, however, Bigger does not report any contribution of less than $10.00 in Schedule 2 Part III thus everyone gave more than $10.00 and receipts had to be issued.
(See Schedule 2 Part III on page 12 in Bigger’s supplementary statement)
151] If the $1,248.80 from the October fundraiser is already included in the $53,819.01 of cash that is reported in Box C line C1 in Bigger’s primary statement, then the $1,248.80 was not given to Bigger anonymously and could not be given to the Clerk under subs. 69(1)(o) because the $1,248.80 would already be reported in the primary statement and names of each contributor who gave over $100.00 are listed on page 9 of his primary statement on the link below.
https://www.greatersudbury.ca/sudburyen/assets/File/Brian%20Bigger%20-%20Primary%20Filing.pdf
69(1)(o) an anonymous contribution is paid to the clerk with whom the candidate’s nomination was filed.
152] However from the contributions over $100.00 on page 9 in the link above, there is no combination of amounts that equal $1,248.80 because no contributions included change. Bigger also reported $3,889.01 in cash from contributors who gave less than $100.00, but even if the $1,248.80 came from a combination of either category, and Bigger simply failed to issue receipts for $1,248.80 of contributions, this does not mean the money was given anonymously which required Bigger to give it to the Clerk; it only means Bigger committed more offences each time he failed to issue a receipt. If the $1,248.80 is already included in the $53,819.01 of income in Bigger’s primary statement, it proves Bigger spent the $1,248.80 on his campaign in the primary period because all expenses and income is reported and Bigger still had a $1,010.10 deficit after the $53,819.01 was all spent. However Bigger’s primary statement evidence he did not report giving the Clerk $1,248.80 in his primary period. If Bigger were to say he gave the Clerk the $1,248.80 in his primary period, but simply forgot to report it in his primary statement, then Bigger would have $2,258.90 deficit, not a $1,010.10 deficit. This is so as he already reports a $1,010.10 deficit and if $1,248.80 is removed from the $53,819.01, because he gave the Clerk $1,248.80, it means Bigger’s deficit would be $2,258.90. In other words, he reports $53,819.01 in total primary period income and if he paid the Clerk $1,248.80 he is left with $52,570.21. He reports $54,829.11 in total primary period expenses and $54,829.11 in expenses minus $52,570.21 in income equals a $2,258.90 deficit. If Bigger were to say he did not report the $1,248.80 as income at all in his primary statement because he gave it to the Clerk in his primary period and did not know he had to report monies given to the Clerk, it only causes Bigger more problems. This is so because Bigger’s supplementary statement evidence that the $1,248.80 he gave the Clerk was collected in his supplementary period. If Bigger were to say he gave the Clerk $1,248.80 in his primary period, then there is $876.71 of cash missing in his supplementary statement. This is so because Schedule 1 Part II; Table 1; Table 2; Table 4 plus the $200.00 nomination refund evidence Bigger collected $11,739.00 in supplementary period cash. Bigger fraudulently claims he paid out $12,111.19 in his supplementary period and this $12,111.19 amount includes the $8,447.71 refund to himself; the $1,404.58 supplementary expenses; the $1,248.80 he paid to the Clerk, and the $1010.10 primary deficit. Bigger is short $372.19 of cash to actually pay out this $12,111.19 amount. However, if Bigger were to say that he did not pay the Clerk the $1,248.80 from this $11,739.00 amount collected in his supplementary period, then he still has this $1,248.80 in cash in his supplementary period. Bigger is $372.19 short of cash to actually pay out the $12,111.19 amount in his supplementary period, so if he paid out the $372.19 from this $1,248.80 amount; then there is $876.71 in cash still left over and this $876.71 is missing and unaccounted for in his supplementary statement.
153] As noted on page 31 of this narrative, campaign Forms are created by the Minister by regulation and are substantive law and all Forms must statutorily be filled in completely. As also noted earlier, Bigger now claims entry to the October 2014 Ambassador Hotel fundraiser was by pass the hat contribution, therefore, different ticket prices were charged. Schedule 2 Part I line 2A required Bigger to “attach” to his financial statement the different range of ticket prices that were paid and Bigger failed to report this despite each alleged pass the hat fundraiser entry amount being different. Bigger also failed to report on line 2A the number of tickets sold.
(See Schedule 2 on page 13 in Bigger’s supplementary statement)
154] Bigger also failed to report the admission charge to the November 27, 2014 Caruso Club fundraiser. Bigger also failed to report on line 2B how many tickets were sold.
(See the November 27, 2014 fundraiser in Schedule 2 on page 12)
155] Furthermore, in Bigger’s primary statement Bigger reported $54,829.11 in primary period expenses on line C4. This amount includes both line C2 and line C3 expense amounts.
(See this $54,829.11 Bigger reported in his primary statement on page 2 in the link below)
https://www.greatersudbury.ca/sudburyen/assets/File/Brian%20Bigger%20-%20Primary%20Filing.pdf
156] As noted on page 49 of this narrative, in Bigger’s supplementary statement Bigger moved expenses from the subject to the spending limit advertising line to the not subject to the spending limit fundraising line. Making this change does not change the grand total in line C4 in Bigger’s supplementary statement as both subject to the spending limit (line C2) and not subject to the spending limit (line C3) amounts are added together to get a grand total for line C4.
157] As also noted on page 34 of this narrative, in Bigger’s supplementary period Bigger only incurred $1,404.58 in new supplementary period expenses. ($945.00 for his supplementary statement accounting; $424.88 for office expenses; $34.70 in bank charges equals $1,404.58).
158] In Bigger’s updated supplementary statement, Bigger reported $56,532.01 on line C4 for expenses incurred during his entire primary and supplementary campaign periods.
(See the $56,532.01 amount on page 2 in the attachment to this email)
159] The $56,532.01 supplementary expense amount on line C4 in Bigger’s supplementary statement minus the $54,829.11 primary expense amount on line C4 in his primary statement equals a difference of $1,702.90. This $1,702.90 is $298.32 higher than the $1,404.58 of expenses Bigger incurred in his supplementary period. This extra $298.32 is for ticket printing for his November fundraiser, as noted on page 46 of this narrative. This prima facie proves Bigger reported the $298.32 November fundraiser expense as required, but he failed to report the $372.19 October fundraiser expense as required and as noted on page 50 of this narrative.
160] Therefore Bigger reported a fraudulent total expense amount of $56,532.01 on line C4 in his supplementary statement as his C4 line must include the $372.19 expense that Bigger failed to report, thus, Bigger’s supplementary C4 line amount is really $56,904.20 and not $56,532.01.
161] So much for the Liberal Compliance Audit Committee’s opinion that Bigger corrected in his supplementary statement the errors he made in his primary statement. Candidates cannot fail to report primary period income to generate deficits so they can extend their campaign to collect money to refund themselves then report in their supplementary statement the primary period income they failed to report in their primary statement; then claim they are not subject to penalties because they fixed their primary statements errors in their supplementary statement.
162] However, nothing in Bigger’s supplementary statement really matters because Bigger was not legally permitted to extend his campaign period or file a supplementary statement unless Bigger truly had a primary period deficit. In order to get a true accurate accounting of Bigger’s primary period finances, to see if he truly had a primary period deficit, we must add to his primary statement the income and the expenses Bigger failed to report in his primary statement.
163] Therefore, we must add the $670.51 of in-kind primary period expenses to his existing reported primary period expenses; thus Bigger’s true and accurate primary period expenses are not $54,829.11 as Bigger fraudulently reported, but are $55,499.62.
164] This $670.51 in-kind amount is also income so we must add $670.51 to his reported primary period income; thus Bigger’s primary income is not $53,819.01 as Bigger fraudulently reported, but is now $54,489.52. We must add the $1,248.80 from the October fundraiser to this amount so his income is now $55,738.32. We must also add the $200.00 nomination fee refund income to this amount so Bigger’s true and accurate primary period income is $55,938.32.
165] Liberal Brian Bigger swore under oath that he had a $1,010.10 primary period deficit on December 31, 2014. However Liberal Brian Bigger did not have a $1,010.10 primary period deficit because he has a $438.70 primary period surplus as of December 31, 2014.
166] $55,938.32 income minus $55,499.62 expenses equals $438.70 primary period surplus.
167] Since Bigger failed to give the Clerk this $438.80 surplus on his primary period filing date Bigger immediately and automatically forfeited office on March 27, 2015 without recourse by operation of MEA subs. 80(1)(b) and 80(2)(a).
168] Bigger is no number crunching rookie as he is a Licenced Accountant; Sudbury’s former Auditor General; a self-proclaimed numbers guy; and his own sworn under oath statement, and his own Auditor, evidence Brian Bigger is a liar and fraud who cooked his own campaign books.
169] This is evidenced by the fact that lyin’ Brian was statutorily required by MEA subs. 78(2)-(5) to have his supplementary statement audited, and, on line 3 paragraph 7 on page 15 in the attachment to this email, Licenced Public Accountant and Auditor Cameron Crawford expressly ADMITS Bigger has a supplementary campaign period deficit as of June 30, 2015.
170] Thus, when Bigger’s financial statements are vetted by non-Liberals using real math; Bigger’s own sworn under oath primary statement evidence Bigger did not have a $1,010.10 primary period deficit as he failed to report income and has a $438.70 surplus. Bigger’s own sworn under oath supplementary statement evidence Bigger has a $372.19 deficit as of June 30, 2015; not a balanced campaign as his supplementary statement fraudulently shows on its face.
(See Bigger reporting a balanced campaign in Box D on page 3 in Bigger’s supplementary statement)
171] The same Clerk who failed to send Bigger the Legislature’s default notice declaration on March 27 after witnessing Bigger’s failure to report as income the $200.00 nomination fee refund this same Clerk gave Bigger, also failed to send him the declaration for a second time on September 25 when this same Clerk vetted Bigger’s supplementary statement and saw the $1,248.80 primary period fundraiser income Bigger failed to report in his primary statement while swearing on oath that he had a $1,010.10 primary period deficit. This same Clerk also failed to send him the declaration for a third time after witnessing Bigger collected $8,447.71 after his campaign period ended and refunded this illegally collected money to himself when he was statutorily required to give it to this same Clerk as the $8,447.71 belongs to the City.
172] Liberal Brian Bigger did not only swear under oath once that he had a primary period deficit, he swore under oath twice. On December 23, 2014 Bigger swore under oath in Form 6 that he had a deficit and was extending his campaign period then filed the document with the Clerk. Then on March 26, 2015 Bigger swore under oath again that he had a $1,010.10 deficit when he filed his primary sworn statement with the Clerk.
(See Bigger sworn Form 6 in Bigger’s supplementary statement)
173] Filing information and swearing it to be true when the information is fraudulent is a MEA s. 89(h) corrupt practice and every document Bigger filed contains fraudulent information.
174] City Clerk Caroline Hallsworth retired in 2017 but she made over $158,000.00 a year in local taxpayer funded salary and claims she did not notice any of these blatant discrepancies even despite the fact that the writer made her aware of them.
https://www.sunshineliststats.com/Salary/carolinehallsworth/2018/9/?employer=cityofgreatersudbury
175] At law, if a duty arises, the individual exercising statutory powers delegated to them by the province, including the Clerk under the MEA, are obliged to do so in good faith.
See Reference Re: Regulations in Relation to Chemicals, 1943 CanLII 1 (SCC), [1943] S.C.R. 1 at 13; Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121 at 140; and Grosvenor v. East Luther Grand Valley (Township), 2007 ONCA 55 http://canlii.ca/t/1qbn4 at para. 42.
176] Clearly Liberal Caroline Hallsworth did not have the integrity to be a Clerk or to be running an election. The penalty for committing a breach of duty corrupt practice includes a potential prison term under subs. 90(6). So why would Liberal Caroline Hallsworth risk going to prison for Liberal Brian Bigger by failing to send him the Ontario Legislature’s default notice declaration even after the writer made her aware of Bigger’s defaults?
177] Because not only did the Liberals have a majority government and refuse to do anything about the criminal fraud Liberal Brian Bigger committed, but Liberal Brian Bigger admits on his Twitter account that Liberal Caroline Hallsworth is his friend.
“Wishing my friend and long time @GreaterSudbury City Clerk Caroline Hallsworth the very best on her retirement - You will be greatly missed!”
https://twitter.com/BiggerSudbury/status/911250075766140930
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