Monday, December 22, 2003

Sinclair Stevens' Application for Judicial Review of Merger

Peter Rosenthal
Roach Schwartz & Associates

Court File No. T-2431-03

FEDERAL COURT OF CANADA
(TRIAL DIVISION)

BETWEEN :

THE HONOURABLE SINCLAIR STEVENS

Applicant

-and-
CHIEF ELECTORAL OFFICER
-and-
THE CONSERVATIVE PARTY OF CANADA

Respondents

NOTICE OF APPLICATION

TO THE RESPONDENTS:

A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant appears on the following pages.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at Toronto, Ontario.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Court Rules, 1998 and serve it on the applicant's solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application.

Copies of the Federal Court Rules, 1998, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

December 22, 2003

Issued by:___Roland Carryl________

(Registry Officer)

TO: Jean-Pierre Kingsley, Chief Electoral Officer
Elections Canada
257 Slater Street
Ottawa, Ontario
K1A 0M6
Tel : 613-990-3348
Fax : 613-991-6554
 
AND TO: The Conservative Party of Canada
c/o Conservative Fund Canada, Chief Agent
Attention : Irving Gerstein, Chair
130 Albert Street, Suite 1720
Ottawa, Ontario
K1P 5G4
Tel : 613-755-2000
Fax : 613-755-2001

APPLICATION

This is an application for judicial review in respect of

1. The decision of the Chief Electoral Officer rendered on December 7, 2003 to register The Conservative Party of Canada as a merged party pursuant to section 400 of the Canada Elections Act;
2. The decision of the Chief Electoral Officer rendered on December 11, 2003 to award The Conservative Party of Canada $8,476, 872.25 pursuant to sections 435.01 and 435.02 of the Canada Elections Act;
3. The decision of the Chief Electoral Officer rendered on December 17, 2003 declining to reconsider the decision to register The Conservative Party of Canada as a merged party; and
4. The decision of the Chief Electoral Officer rendered on December 17, 2003 declining to answer questions from counsel for the applicant concerning the decision to register The Conservative Party of Canada as a merged party.

The applicant makes application for:

1. An Order quashing the decision to register The Conservative Party of Canada as a merged party and restoring The Progressive Conservative Party of Canada to the registry of registered political parties pursuant to the Canada Elections Act; or
2. In the alternative, an Order requiring the Chief Electoral to reconsider his decision to register The Conservative Party of Canada as a merged party, with such guidelines as this Honourable Court may direct;
3. An Order quashing the decision of the Chief Electoral Officer to award The Conservative Party of Canada $8,476,872.25;
4. An Order requiring the Chief Electoral Officer to answer the questions posed from counsel for the applicant contained in his letter of December 9, 2003;
5. Costs of this judicial review on a substantial indemnity scale; and
6. Such further and other relief as counsel may advise and this Honourable Court may permit.

The grounds for the application are:

1. The Chief Electoral Officer erred in holding that the Canada Elections Act authorizes the merger even if the constitution of The Progressive Conservative Party of Canada prohibits mergers.
2. The Chief Electoral Officer erred in holding that the resolution passed by The Progressive Conservative Party of Canada on December 6, 2003 is a resolution "approving the proposed merger", as required by section 400 of the Canada Elections Act. That resolution authorizes the creation of a new party (that could be registered pursuant to section 366 of the Act so as to co-exist with the Progressive Conservative Party) but not of a merged party whose existence entails the dissolution of the Progressive Conservative Party.
3. The Chief Electoral Officer erred in approving the merger without sufficient scrutiny, within hours of his having received the merger application on Sunday December 7, 2003.
4. The Chief Electoral Officer erred in registering The Conservative Party of Canada as a merged party when he knew from the Agreement-in-Principle that The Conservative Party of Canada did not yet have any structure whatsoever. In particular, the new party had no constitution, or by-laws. The Agreement-in-Principle indicates that the Interim Joint Council is to create the structure of The Conservative Party of Canada so that filings with Elections Canada could be made by December 31, 2003. At the time that the Chief Electoral Officer registered The Conservative Party of Canada on December 7, 2003, there was a proposal to create a structure to be called The Conservative Party of Canada but the essence of that structure did not yet exist.
5. The Chief Electoral Officer erred in failing to determine whether the proffered "merger resolutions" had been passed in accordance with the constitutions and by-laws of the constituent parties.
6. The Progressive Conservative Party is a voluntary association of its members. On and before December 7, 2003, the Chief Electoral Officer knew that many members of the Progressive Conservative Party of Canada were alleging that the resolution of December 6, 2003 had not been passed in accordance with the by-laws and the constitution of the Party. He knew or ought to have known that such members were likely to make submissions to him that he should not register The Conservative Party of Canada as a merged party. The Chief Electoral Officer's swift approval of the merger on Sunday December 7, 2003 contravened the principles of natural justice by denying such members of The Progressive Conservative Party of Canada the right to be heard in opposition to the merger application.
7. The Chief Electoral Officer erred in holding that the alleged unfairness of the process followed in the passage of the resolution of December 6, 2003 would not so undermine the integrity of the process that it would warrant re-opening the decision to register The Conservative Party of Canada.
8. The Chief Electoral Officer erred in failing to invalidate the merger on the ground that Progressive Conservative Party of Canada leader Peter MacKay had usurped the role of the Management Committee in selecting Progressive Conservative Party of Canada members of the Interim Joint Council that prepared the merger application and chose the leader, chief agent and auditor of the new Conservative Party of Canada.
9. The Chief Electoral Officer erred in awarding the Conservative Party of Canada $8,476,872.25 pursuant to sections 435.01 and 435.02 of the Canada Elections Act on the basis that The Conservative Party of Canada was a merger of the Progressive Conservative Party and the Canadian Alliance when he knew or ought to have known that each of these parties was still maintaining that they were separate and distinct from each other and, in particular, that each was continuing to claim status as a distinct recognized party in the House of Commons.
10. The Canada Elections Act, and, in particular, sections 366, 400, 435.01, 435.02 of said Act.
11. Section 3 of the Canadian Charter of Rights and Freedoms.
12. Such further grounds as counsel may advise and this Honourable Court may permit.

This application will be supported by the following material:

1. All notes, memoranda, correspondence, emails, voicemails and other documents concerning The Conservative Party of Canada that are in the possession of the Chief Electoral Officer.
2. All documents submitted by the Honourable Sinclair Stevens to the Chief Electoral Officer concerning The Conservative Party of Canada, including his affidavit of December 8, 2003 and exhibits thereto, and correspondence from his counsel dated December 8, 9, 11 and 16, 2003.
3. The press releases issued by the Chief Electoral Officer on December 8 and 11, 2003.
4. The letter of December 10, 2003 from Mr. James Sprague, senior general counsel to Elections Canada, addressed to Peter Rosenthal, and enclosures thereto.
5. The letter of December 17, 2003 from the Chief Electoral Officer addressed to Peter Rosenthal.
6. Such further material as counsel may advise and this Honourable Court may admit.

The applicant requests the Chief Electoral Officer to send a certified copy of the following material that is not in the possession of the applicant but is in the possession of the Chief Electoral Officer to the applicant and to the Registry:

1. All notes, memoranda, correspondence, emails, voicemails and any other documents concerning The Conservative Party of Canada.

December 22, 2003
______________________________
Peter Rosenthal
Roach Schwartz & Associates
688 St. Clair Avenue West
Toronto, Ontario
M6C 1B1
LSUC# 330 44O
Tel : 416-657-1465
Fax : 416-657-1511
Solicitors for the Applicant

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