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The Toronto Star, Wednesday, April 28, 2004

Fighting for her family — and her party
Creation of the new Tories a 'betrayal'
First PM's relative appealing merger

by Tracey Tyler

The cobblestone path to Ontario's highest court might cause lesser beings to falter, but Marie Gatley didn't miss a step. She may be 83, but she's just as steely in her determination to rescue one of Canada's founding political parties — and her family legacy.

With rumours of a spring election making the rounds, Gatley was one of several dozen people who packed a courtroom at the Ontario Court of Appeal yesterday, fighting to overturn a judge's ruling that sounded the death knell for the Progressive Conservative Party of Canada and paved the way for its merger with the Canadian Alliance.

Gatley, the great-grand niece of Sir John A. Macdonald — the party's first leader and Canada's first prime minister — believes the merger was not legal. Dissolving the party was like snuffing out her uncle's heritage, she says.

"This is just a betrayal of him," Gatley, a retired occupational nurse, said in an interview outside court.

Inside, lawyers for the new Conservative Party of Canada argued that efforts to dismantle the merger are hopelessly moot.

But lawyers for Gatley and the others, led by former Tory leadership contender David Orchard, said the chief electoral officer's decision to approve the deal last Dec. 7 is "nothing that can't be undone."

The move to "unite the right" crossed a major threshold with an agreement-in-principle, signed last Oct. 15 by Stephen Harper, then leader of the Canadian Alliance party, and Peter MacKay, then leader of the Progressive Conservative party.

By Dec. 5, the fate of the party seemed all but certain when Ontario's Superior Court of Justice threw out a lawsuit filed by Orchard and 22 disgruntled Tories opposed to the merger. It was approved at a party meeting the next day.

Orchard and the others went to court seeking declarations that the PC party cannot be dissolved or merged with another political party without unanimous consent from its members. They were also asking for a permanent injunction preventing anyone else from dealing the party's assets.

The case boiled down to one key issue: What is paramount in determining whether two parties can merge — the Canada Elections Act or a political party's constitution?

Merger opponents say courts have made it clear that members of voluntary organizations such as the PC party can only merge in accordance with their constitutions. If the constitution makes no reference to a merger, it can only be done by unanimous consent, they argue.

In rejecting the argument in December, Mr. Justice Russell Juriansz said while the PC party is indeed a voluntary organization, it's also registered under the Canada Elections Act and subject to its regulations, which govern matters of real substance, including party mergers — not just things like the filing of financial reports.

Since the act allows political parties to merge and, in some circumstances, transfer assets to a new entity, it would not be appropriate to make the declarations sought by Orchard and the others, the judge ruled.

Paul Bigioni, a lawyer for Orchard and the other plaintiffs, took issue with the findings yesterday. Far from determining such weighty issues as whether a political party can continue to exist, the law doesn't even spell out the meaning of "political party," he said, adding the judge failed to take into account the PC party's constitution, which says members are the "basic source of authority for all things done."

Arthur Hamilton, a lawyer for the Conservative Party, said the merger dispute never belonged in court and should have been settled through the party's internal arbitration process.

But Juriansz rejected that argument, saying arbitration was designed for questions about ongoing party affairs, not "extraordinary" issues like its continued existence.

"Speaking personally, I have some difficulty with that," Mr. Justice David Doherty of the appeal court said yesterday. "I don't see anything in that arbitration clause that supports the limitation Justice Juriansz put on it."

The appeal panel, which included Mr. Justice Stephen Goudge and Madam Justice Janet Simmons, reserved its decision.

Tracey Tyler is a legal affairs reporter for the Toronto Star

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