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A precedent-setting decision by the Ontario Superior Court clarifies who has standing to make an application for an election compliance audit. This case may be of particular interest to clerks and election administrators who work with compliance audit committees that deal with applications for compliance audits related to municipal campaign finances.
On October 28, 2024, Justice Kurz heard the case and on December 5, 2024, ruled that a voter who is eligible to vote in the same ward as the candidate in question has “standing” to make an application.
Ruling
In Nanda v. Town of Oakville, 2024 ONSC 6742, the court ruled that since the elector who made the application challenging Nanda’s campaign finances was not eligible to vote in the ward Nanda ran in, the Joint Compliance Audit Committee for the Town of Oakville should not have ordered a compliance audit of Nanda. The audit was pending the appeal ruling and will not be undertaken.
The Justice relied on several relevant statutory provisions:
- Subsection 88.33 (1) states that an elector entitled to vote in an election may apply for a compliance audit.
- “Elector” being undefined in the Municipal Elections Act, the Justice referred to section 17 (2) and (3) of the Act that define who is and is not entitled to be an elector in a municipal election in terms of qualifications such as residence/ownership, citizenship and age and persons prohibited from voting.
- Finally, the Justice referred to section 19 (7) which limits the entitlement of voters in municipal elections to vote only in their wards.
The ruling maintained that the Municipal Elections Act (MEA) focuses on election integrity and transparency, but with a proportional process for dealing with complaints about a candidate’s spending as audits can be costly and time-consuming for municipalities.
Impact
Based on the ruling, if a complaint challenges a candidate’s finances, the compliance audit committee must ensure the complainant is an eligible elector in the specific election or ward in question. This is the first time the issue has been litigated in Ontario. Municipalities may need to clarify their compliance audit committee applications, processes, and education to guide future practices.
Case Background
Nanda successfully ran for the office of Oakville Ward 7 Town and Regional Councillor in the October 2022 municipal election. A complaint regarding Nanda’s election campaign finances was brought forward to the committee on June 29, 2022. The committee met on August 1, 2022, at which time, Nanda objected that complainant is not a resident of Ward 7 and based on s. 88.33, not an elector.
The committee allowed the application and appointed an auditor based on the broader interpretation of allowing an elector of the municipality regardless of ward, to make a complaint. Nanda appealed the decision to the Superior Court with the audit pending. We will continue to monitor any developments in this case.
MEA Modernization
Rules on campaign finance are complex and challenging to follow, oversee, and enforce. For this reason, in our submission, Modernizing the Municipal Elections Act for the 21st Century, we called on the Province to review the campaign finance framework and enforcement tools to make the rules easier to follow for voters and candidates and easier to enforce for election administrators. We also recommended amendments to clarify the legislation - that a resident of Ontario can submit a compliance audit application, consistent with campaign contribution rules: electors can contribute to campaigns regardless of where they reside. This ruling provides more clarity in this area.