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CtMTRf-

Court of Queen's Bench of Alberta

Citation: Mandel v Alberta (Chief Electoral Officer), 2019 ABQB 157

Date:
Docket: 1903 02762
Registry: Edmonton

Between:

Stephen Mandel and Brian Heidecker

Applicants
and

Chief Electoral Officer of Alberta

Respondent

Reasons for Decision


of the
Honourable Madam Justice G.D.B. Kendell

Introduction

[1] The Applicants, Stephen Mandel and Brian Heidecker, apply for relief under s 44(3) of
the Election Finances and Contributions Disclosure Act^ RSA 2000, c E-2(EFCDA),extending
the time for filing a Nomination Contestant Campaign Return. Alternatively, the Applicants seek
declaratory relief negating the effect of non-compliance with s 44 ofthe EFCDA.
[2] The Respondent, the Chief Electoral Officer of Alberta(CEO), did not take a position as
to whether or not this Court should exercise its discretion and grant relief under s 44 ofthe
EFCDA,but made submissions with respect to the background facts and the relevant statutory
scheme.
Page: 2

Background
[3] Mr. Mandel, was the sole registered nomination contestant in the nomination contest for
the Alberta Party in the Edmonton-McClung electoral division (the Nomination Contest). Mr.
Heidecker was Mr. Mandel's Chief Financial Officer(CFO), and by statute was responsible for
filing Mr. Mandel's Nomination Campaign Contestant Return (Return).
[4] Mr. Heidecker filed an affidavit in support ofthis application and deposed that he had
been a CFO for various candidates in eleven Provincial elections and has never once missed a
filing deadline.
[5] On March 27, 2018,the Applicants submitted an application form to Elections Alberta
reflecting Mr. Mandel's registration as a nomination contestant.
[6] The Applicants registered with the Elections Alberta Online Financial System (OFS). The
OFS sends an automatic email to CFOs and nomination contestants when they register with the
OFS,including links to the Elections Alberta publication. Nomination Contestant Guide to the
Election Finances and Contributions Disclosure Act, a 24 page guide intended to help
nomination candidates understand the EFCDA (the Guide). The automatically generated email
was sent to Mr. Heidecker on April 11, 2018, and to Mr. Mandel on April 12, 2018. Page 18 of
the Guide, citing s 43.01 ofthe EFCDA,provides that every nomination contestant registered
with Elections Alberta must "file a Nomination Contestant Campaign Return within 4 months
after the selection date / contest conclusion, or within 4 months ofthe withdrawal or cancellation
date..." It further adds that CFOs will receive detailed instructions from Elections Alberta on
how to prepare the returns "in advance ofthe filing deadline."
[7] It also provides details for filing the campaign return, defined as Form NC-FS-01, and
describes what must be included with the return: financial statements, contribution detail report,
campaign expense report, expense limit report, and any supporting information and documents.
The Guide also states:

Late Filing Fee


Failure to file the campaign return with Elections Alberta by the filing deadline
will result in a late filing fee of$500, and mav result in administrative penalties or
prosecution,(emphasis added)
EFCDA Sections 43.01, 43.2(2), 44,48(4), 48(5)
[8] The Alberta Party selected May 12,2018 as the official call date for the nomination
contest. May 12,2018 was also the date selected for endorsement as the official candidate ofthe
Alberta Party.
[9] On May 22,2018, the Alberta Party filed the particulars ofthe nomination contest in the
OFS, which set May 12, 2018 as:
(a) The date ofthe official call for nominations;
(b) The close of nominations; and
(c) The date of contestant selection.
[10] The party endorsement deadline was set as May 22,2018.
Page: 3

[11] The following day, May 23,2018,the Alberta Party entered Mr. Mandel as the candidate
selected by the nomination contest on the OFS. Later that same morning, the Alberta Party
formally endorsed Mr. Mandel as the Alberta Party candidate by entering that information into
the OFS.

[12] On July 13, 2018, Mr. Mandel received a letter from Kevin Lee, the Director of Election
Finances, which was copied to Mr. Heidecker. The letter stated:
Your campaign return, with original signatures, must be filed with this office by
4:30 PM on September 12, 2018(4 months after the selection date/contest
conclusion), and is required even if your campaign had no revenue or expenses.
Failure to file by the filing deadline will result in an automatic late filing fee of
$500 under section 43.2(2)ofthe EFCDA. You and/or your chieffinancial officer
(CFO)mav also be subject to further penalties,(emphasis added)
[13] The letter goes on to indicate that the campaign return is available to download from the
Elections Alberta website, and that also available on the website are resources including a Guide
with step by step instructions for completing the financial statement.
[14] Mr. Heidecker swore in his supporting Affidavit, filed Februeiry 6, 2019, that beginning
around July 2018, he began to feel seriously unwell, and had problems sleeping, concentrating
and reading at work. By the end ofthe Summer of2018 and the beginning of September 2018,
his symptoms made him incapable of attending work and properly carrying out his CFO and
campaign duties for Mr. Mandel.
[15] Mr. Heidecker further deposed that he saw his medical doctor many times, including
twice before and just two days after the CEO's Filing Deadline. His illness and its accompanying
symptoms caused him be unable to attend work and fulfil CFO duties starting in around August
2018 until the present date. The CEO's Filing Deadline fell well within this period ofillness and
his absence from campaign work. He indicated that it was this illness that caused him to be
unable to complete and file Mr. Mandel's return by the CEO's Filing Deadline. As a result, he
deposed, various Alberta Party officials and other campaign staffers for Mr. Mandel stepped in to
complete Mr. Mandel's Return and tend to its filing on his behalf.
[16] On or about September 20,2018, Mark Taylor, the Executive Director ofthe Alberta
Party, received a phone call from Elections Alberta advising that Mr. Heidecker had not
completed and filed Mr. Mandel's Return by the filing deadline of September 12, 2018. On that
same day, Trudy Berry, an Elections Alberta official received a voicemail from Mr. Taylor. It
appears that Ms. Berry returned the call and confirmed that the Return had not been completed
and filed.

[17] On September 21,2018, Jarrett Campbell, a member of Mr. Mandel's leadership


campaign team, followed up with Trudy Berry via email and confirmed Elections Alberta's
position regarding the deadline for filing Mr. Mandel's Return. By return email, Ms. Berry
replied:
tVi
As for the nomination campaign filing that was due September 12 ,we'll accept a
scanned signed copy followed up with the original, as soon as possible.
[18] On September 24,2018, Mr. Heidecker attended at the Operations meeting ofthe Alberta
Party for the purpose of executing the Return, which was prepared by campaign staffers, and he
Page: 4

and Mr. Mandel signed the Return. The Return reflected that Mr. Meuidel had zero dollars spent
or contributed during his nomination contest campaign.
[19] The Applicants assert that a campaign staffer scanned and emailed the Return to
Elections Alberta as per Ms. Berry's instructions. The Respondent replies that Elections Alberta
did not receive a scanned copy of Mr. Mandel's Retum.
[20] The Retum was stamped as received by the CEO on September 27, 2018.
[21] On January 30, 2019, Mr. Resler, the CEO,sent letters to both Applicants advising that as
part of a recently completed intemal review, it was determined that the Retum was filed outside
the 4 month time period after the nomination period as required under s 43.01(1)ofthe EFCDA.
The letter noted that the nomination contest was held on May 12, 2018,therefore under the
EFCDA the Retum was required to be received on or before September 12, 2018. Since the
Retum was received on September 27, 2018, it was late and outside the 10 day grace period,
leading to two consequences: the $500 late filing fee, and the requirement for the CEO to report
to the Speaker ofthe Legislative Assembly. This, the letter indicated, would result in a
prohibition fi*om being nominated as a candidate in an election for a period offive years, unless
relief was obtained fi-om the Court of Queen's Bench within the 60 day period following the date
on which the report was laid before the Assembly.
[22] Mr. Resler advised that he would be filing his report with the Speaker on Febmary 4,
2019. The report was received by the Speaker on Febmary 5,2019(the Report).
[23] The Applicants filed this Application on Febmary 6,2019.
[24] On Febmary 7, 2019, Mr. Resler sent a further letter to Mr. Mandel, copied to Mr.
Heidecker, advising that they were named on a list reported to the Speaker ofthe Legislative
Assembly for failure to file the Retum prior to the filing deadline, and reminding them oftheir
ability to apply for relief fi^om the Court of Queen's Bench. On that same day, the Speaker ofthe
Legislative Assembly provided a memorandum to CEO Glen Resler, confirming receipt of Mr.
Resler's Febmary 4,2019 correspondence, and indicating that the Report was considered to have
been laid before the Assembly on Febmary 7,2019.

Legislation
[25] The relevant legislation is attached as Appendix A.
[26] Counsel for the Respondent provided a summary ofthe objectives ofthe EFCDA,noting
that in broad terms the EFCDA regulates who may contribute to electoral campaigns, when
contributions may be made, and limits the amount that any single person can contribute. Further,
it provides for public disclosure ofthe financing of nomination, leadership, and electoral
campaigns. The purposes ofthe Act are to ensure faimess, transparency and accountability in
electoral financing and disclosure, and the role of electoral officials is critical as bulwarks
against improprieties that could undermine Canada's democratic processes {Lull v Alberta
(ChiefElectoral Officer), 2016 ABQB 117 at para 19). The nomination contestants' financial
statements are published on the Elections Alberta website, providing public access to
information about contributions and expenses during a nomination contest.
[27] Essentially, under s 43.01 ofEFCDA,a nomination candidate's Chief Financial Officer
must file a nomination contestant campaign retum, consisting ofa financial statement, a
Page: 5

contribution report, a campaign expense report, an expense limit report and supporting
information, within four months after the conclusion of a nomination contest. Under s 43.2 ofthe
EFCDA,if a registered nomination contestant fails to file the return by the filing deadline, the
contestant and their Chief Financial Officer are jointly liable to pay a $500.00 fine to the CEO,
enforceable as a judgment ofthis Court. It is interesting to note that while the responsibility for
filing the return is the CFO's responsibility, the consequences for failing to file the Return by the
legislative deadline are shared by the CFO and the nomination contestant.
[28] Under s 44 ofthe EFCDA,the CEO must transmit a report to the Speaker ofthe
Assembly to be laid before the Assembly ifit is then sitting or, if it is not then sitting, within 15
days after the commencement ofthe next sitting. Further, s 44(6) provides there is no appeal
fi-om the exercise of discretion under s 44 and the decision is final.

[29] There is no discretion for the CEO under this section. He must file a report with the
Speaker in this situation. However, under s 44(3), the nomination contestant may apply to the
Court of Queen's Bench for relief within 60 days after the report is laid before the Assembly. In
my view, this makes perfect sense; the CEO and the Office ofthe CEO are responsible for the
conduct offair elections under the Elections Act, and cannot be seen as either favouring or
opposing the eligibility of a particular candidate for electoral office. Through s 44(4)ofthe
EFCDA,the Legislature has determined that the appropriate person to exercise discretion in such
a case is a justice ofthis Court, who stands outside ofthe electoral process.
[30] The more severe consequence, however, is contained in s. 57 ofthe Election Act, which
provides that a person is prohibited fi*om being nominated as a candidate in an election ifthe
Speaker has laid a report before the Assembly under s 44(1)ofthe EFCDA and the Court has not
dispensed with compliance with the EFCDA by granting an order under s 44.

Analysis
The Court's approach under Section 44 of the EFCDA
[31] The application of the EFCDA to nomination contestants and nomination contests is the
result of amendments to the EFCDA made in 2016, adding s 43.01; therefore the February
Report was the first time that the CEO reported nomination contestants to the Legislative
Assembly for late filing. Section 44 gives the Court wide discretion to extend the time for
complying with s 43.01 ifthere are mitigating reasons for non-compliance with the time limit.
[32] While there are two reported decisions relating to applications for relief under s 44 ofthe
EFCDA,these deal with post-election candidate financial returns, not nomination contestant
financial returns. The cases are, however,instructive in determining mitigating reasons for non-
compliance with s 43.01 by nomination contestants.
[33] In Lall, Mr. Lall, a candidate in the 2015 Alberta election, filed his post-election
candidate financial statements eight days after the applicable deadline, and at the time ofthe
hearing, the 10 day grace period now found in s 43.2(4) did not exist. Mr. Lall said he filed late
because both he and his CFO had deactivated their email addresses following the unsuccessful
campaign. As a result, he missed the Elections Alberta reminder about the filing deadline. In
deciding Lall, Tilleman J referred to the transcript fi-om Fritz v ChiefElectoral Officer(8
November 2012), Edmonton No 1203-16318(ABQB)before Manderscheid J. There
Manderscheid J asked:"Did they go out oftheir way to basically use the system to their own
Page: 6

gains?" Thus, he concluded that the first step in any analysis under s 44 is to determine whether
there was good faith, or put another way, whether there was an absence of bad faith.
[34] Although Tilleman J ultimately held that there was no evidence of bad faith, and there
was evidence of good faith, he was not satisfied that there were mitigating reasons to extend the
time for compliance. He interpreted "mitigating" very narrowly saying (at paras 49-50)that it
means "someone else or something else is at least partially to blame.... The applicants here can
point to no one and nothing but themselves for the late financial reporting. It was their fault and
theirs alone." Having found no mitigating reasons, and concluding that there was no de minimus
exception in the EFCDA,the Application was dismissed.
[35] After Lall, the EFCDA was amended to provide a 10-day grace period for filing
campaign returns, and in September 2017,Tilleman J granted an Application to vary his decision
on the basis ofthat amendment.

[36] Before Tilleman J*s September 2017 decision, Veit J heard two applications for relief
under s 44 ofthe EFCDA in Bildhauer v. Alberta (ChiefElectoral Officer), 2017 ABQB 54.
The Applicants, two Alberta Liberal Party candidates in the 2015 Provincial election, each had
financial deficits they failed to eliminate by the legislated deadline. As such, legislative fines
were imposed and a prohibition issued under the Elections Act.
[37] In Bildhauer, Veit J noted the general principle of statutory interpretation that the
legislature does not intend unjust or inequitable results to flow from its enactments, and therefore
judicial interpretations should be adopted to avoid such results {Conservative Fund Canada v
Canada(ChiefElectoral Officer) 2010 ONCA 882 at para 103; Ontario v. Canadian Pacific
Ltd,[1995]2 SCR \m,Rizzo & Rizzo Shoes Ltd(Re),[1998] 1 SCR 27, at para 21). She also
considered the general principles relating to the interpretation of election legislation and at
paragraph 29 stated:
Elections are at the core ofour democracy... Election legislation deals with
campaign contributions, campaign spending, and campaign reporting; it must be
interpreted in light ofthe values which the legislation attempts to enshrine and
foster.

[38] On the basis ofthese principles, she expressly disagreed with Tilleman J's views in Lall
on die legal meaning of"mitigating" or the expression "mitigating circumstances." At para 44,
she accepted the definition of"mitigate" in the Compact Oxford English Dictionary:
... to abate the rigour or severity of a law.
[39] She further accepted the definition of"mitigating circumstances" in Black's Law
Dictionary:
... a fact or situation that does not justify or excuse a wrongful act or offense but
that reduces the degree of culpability and thus may reduce the damages or
punishment.
[40] Further, at paragraph 44, Veit J noted that, while she agreed the legislation did not
contain a de minimis exception, its absence in the legislation did not prevent the Court fi-om
considering whether a de minimis breach is a mitigating circumstance.
Page: 7

[41] Veit J did, however, agree that establishing good faith was a prerequisite to any
application for relief under s 44 ofthe EFCDA.In granting the applications, Veit J held that
there was(at para 49),"absolutely no whiffof any corrupt practice," and concluded (at para 49):
It would be a totally disproportionate result oflate elimination of a deficit to be
prevented from participating in an election as a candidate or a chieffinancial
officer for a period offive years.
[42] In granting the applications, Veit J concluded that the applicants acted in good faith, that
campaign deficits, by their nature, are less central to the legitimacy of elections than election
campaign contributions and expenses, and the deficits in issue were not objectively large and
were ultimately eliminated. Finally, she noted that the election process depends on volunteer
participation, and that when volunteers are doing their best, they should not be punished by
preventing them from future participation (para 55).
[43] I accept Justice Veit's analysis as the appropriate approach of applications for relief
under s 44 ofthe EFCDA,therefore, in my view, mitigating reasons can include, but are not
limited to:

• Acting in good faith;


• External or extenuating circumstances, such as illness or issues with the postal
service;
• Campaign deficits being less central to electoral legitimacy than campaign
contributions and campaign expenses;
• The size ofthe deficits;
• The length ofthe delay;
• Timeliness in addressing the non-compliance; and
• The importance of volunteers to our election process.
This is not a closed list: mitigating reasons will depend on the facts ofeach individual case.

Application to the facts of this case


Absence of bad faith

[44] There is nothing to suggest that the Applicants were acting in bad faith. I find that the
Applicants were acting in good faith at all relevant times, and there is no "whiffof any corrupt
practices," nor any evidence that the Applicants were attempting to "use the system to further
their own gains."
Mitigating Circumstances
Illness

[45] The Applicants argue that Mr. Heidecker's serious illness and resulting incapacity to
work was why the Return was not filed on time, and cites prior Court decisions on s 44 relief
based on illnesses and uncontrollable circumstances. The Applicants submit that Mr. Heidecker's
illness alone is a sufficient mitigating circumstance to justify the Court granting an extension.
[46] With respect, I disagree. In the application for reconsideration of his decision in the Lull
matter, the Applicants sought to have Mr. Lall's evidence of depression heard as part ofthe
reconsideration application. Tilleman J held (at paragraph 15):
Page: 8

... as a general rule, where physical or mental health matters are in issue, the
Court expects more fiilsome evidence than a party's own self-diagnosis. The
Court normally could expect to be provided with evidence from an appropriate
health professional. Had Mr. Lall's self-diagnosis being the only evidence before
me,I would have been inclined to dismiss the application.
[47] Although Mr. Heidecker did depose to seeing his medical doctor on two occasions before
and two days after the filing deadline, and many times after, he did not provide any independent
medical evidence from his doctor or even his doctor's name. While I appreciate that information
about one's health is personal and confidential, and that maintaining confidentiality is necessary,
legislative relieffrom the Court requires more than a bare assertion ofillness. I find Mr.
Heidecker's evidence relating to his illness, in and ofitself, is not sufficient, to justify relief
under s 44, in the absence of other mitigating reasons.
[48] I do, however, accept Mr. Heidecker's illness as a mitigating factor to be considered
among the other mitigating factors to reduce "the degree of culpability".
Was the delay de minimis?
[49] The Return was filed fifteen days after the deadline, and seven days after the Executive
Director ofthe Alberta Party was notified by Elections Alberta ofthe missed filing. It was also
five days after the statutory grace period put in place after Lull Although there is a dispute on
the evidence as to whether the Return was scanned and emailed after it was signed after office
hours on September 24, 2018,the original Return was,in fact, received on September 27, 2018.
[50] I find that the Applicants acted relatively promptly to prepare and file the Return once
they were notified that fiie Return was late. I note that the campaign was not notified until two
days before the grace period in s 43.2(4) expired -a Thursday. A member ofthe campaign team
contacted Elections Alberta the next day, who responded by email saying:
As for the nomination campaign filing that was due on September 12^*^, we'll
accept a scanned signed copy followed up with the original as soon as possible.
[51] A weekend intervened, and on Monday campaign staffers began to work on preparing the
form. Mr. Heidecker was able to attend the evening Alberta Operations meeting that night and
signed the Return.
[52] There is no evidence ofhow the original Retum was sent to Elections Alberta, whether
by mail or courier.
[53] I conclude that while the Retum was filed relatively promptly, it was not a de minimis
delay. The relatively prompt response, however, is a factor I will consider as mitigating.
Adequate notice from Elections Alberta
[54] Elections Alberta did not notify the Applicants until almost the end ofthe grace period,
but 1 note there is no legislated requirement for such notice. On the other hand, 1 also note that
there was no indication ofthe serious consequences under the Elections Act for a late Retum in
any ofthe communication between the Applicants and Elections Alberta until January 30, 2019.
In fact, the communications from Elections Alberta, only indicated that in addition to the
$500.00 fine, late filing "may... be subject to further penalties"(Exhibit G of Kevin Lee's
affidavit), or "may result in administrative penalties or prosecution"(the Guide). Further,
Page: 9

Elections Alberta's statement that "we'll accept a scanned signed copy followed up with the
original as soon as possible" could be misinterpreted about the consequences.
[55] There is no obligation on Elections Alberta to give notice and clearly Elections Alberta
has no jurisdiction to extend or waive time limits, but it seems to me,having chosen to give that
notice. Elections Alberta's communication was misleading as to the seriousness of the result of
late filing.
New Legislation as it relates to Nomination Contestants
[56] The Applicants also argue that the Return is a new filing obligation, and this upcoming
election is the first time this rule is being applied. Counsel for the Applicants state that although
ignorance ofthe law is not an excuse, the fact that this is the first time s 43.01 is being enforced
against nomination contestants should be considered, mitigating leniency.
[57] I do not accept this as a sufficient mitigating factor on its own because persons running
for elected office should be expected to take steps to ascertain their statutory obligations.
Moreover,following their registration, the Applicants did receive notice of the deadlines, the
financial consequences, and the fact that there were possible additional consequences. It would
have been reasonable for the Applicants to investigate what those were. At the same time, given
the serious consequences, it is one factor to be considered with the others.
The Return indicated no contributions or expenses
[58] The Applicants filed a zero return: there was no revenue or expenses for the reporting
period, thus there was no surplus or deficit for the reporting period, nor were there any assets or
liabilities to disclose, or any documents that were required to be attached to the financial
statement. Given that election legislation relating to campaign financing and reporting is aimed
at curbing corrupt practices and assuring public transparency and accountability of campaign
financing and the electoral process, I find that the filing of a zero return is a mitigating
circumstance, particularly as in this case, where the nomination contest was uncontested.
A nomination contest is not as important as other contests under the EFCDA
[59] The Return in issue was a nomination contestant campaign return, which is an internal
party process. In my view, this does not attract the same level ofimportance as a candidate's
final campaign return after an election. As counsel for the Applicants point out, when a
nomination contest is uncontested and only one registered nomination contestant is seeking
endorsement, the concerns about fairness, transparency and accountability are not as serious.

Proportionality
[60] There are a number offactors that, while not mitigating, should be considered in
weighing the proportionality ofthe consequences. Obviously, a five year prohibition from being
nominated as a candidate in an election is a very serious consequence. There are additional
adverse consequences.
Adverse consequences
Volunteers

[61] I agree with Veit J that volunteers are essential and integral to the Canadian electoral
system and our democracy. The CFO position imposes statutory responsibilities and serious
Page: 10

consequences for failing to meet those responsibilities, which could discourage otherwise
qualified and/or experienced people from volunteering for CFO or other campaign positions.
Timing of the Report to the Assembly
[62] In my view, the timing ofthe Report to the Legislative Assembly is also a factor to be
considered. The Respondents argue that the timing ofthe Report to the Speaker is not a
mitigating factor, as it does not change the legislative consequence. In my view, it is not
mitigating, but it is a factor in assessing the seriousness ofthe consequences.
[63] While unintentional, the Applicants submit that it has the practical effect ofjeopardizing
Mr. Mandel's ability to run in the upcoming election. The Applicants could not seek relief from
this Court under s 44 ofthe EFCDA until the matter was placed before the Speaker ofthe
Legislative Assembly in February 2019, on the eve ofthe upcoming election announcement. If
the Court refuses to grant the requested relief, it could impact the ability of the Alberta Party to
meaningfully participate in the upcoming election, and the public's ability to vote for a candidate
or party oftheir preferred choice.
[64] This is particularly so in this case because Mr. Mandel is the leader ofthe Alberta Party.
Given the anticipated timing ofthe upcoming election, it may not be possible for the Alberta
Party to find a new leader. Maintaining the legislative five-year prohibition will prevent the
Alberta Party from having the leader oftheir choice.
[65] I wish it to be clear that the Respondent has not done anything wrong and is not offside.
There is no requirement that a nomination contestant who has not met the statutory filing
deadlines be notified ofthe Report being transmitted to the Speaker ofthe Legislative Assembly,
as that consequence is clearly set out in the legislation. Counsel for the Respondent referred to
the January 30,2019 letter as a courtesy letter, and emphasized it was not required.

Mitigating Reasons
[66] In summary,the following is a non-exhaustive list of mitigating factors to be considered
in relation to requests for relief by nomination contestants under s 44 ofthe EFCDA:
• Acting in good faith;
• External or extenuating circumstances, such as illness or issues with the postal
service;
• Whether or not the nomination contest was uncontested;
• The filing of a zero nomination contestant return;
• The length ofthe delay; and
• Timeliness in addressing the non-compliance.
[67] While not necessarily a mitigating reason, the Court should consider the proportionality
ofthe adverse consequences of strict enforcement ofthe nomination contestant return deadline,
including:
• The importance of volunteers to the election process;
• Meaningful participation in an election;
• A Party's ability to have the candidate oftheir choice; and
• The public's ability to vote for the Party or candidate oftheir choice.
Page: 11

Conclusion

[68] The Applicants submit that the benefits of strictly enforcing the Return deadline in the
circumstances ofthis case are minimal, and drastically outweigh the adverse consequences of
strict enforcement, warranting a relaxation of the deadline to file: I agree.
[69] In my view,the following are mitigating circumstances:

(a) Acting in good faith;


(b) Mr. Heidecker's illness;
(c) The short length ofthe delay;
(d) The promptness in addressing the non-compliance;
(e) The nomination contest was uncontested;
(f) The Return was a "zero" return; and
(g) A nomination contest is an internal process that is less central to the elections
process.

[70] These circumstances are not sufficient, in my opinion, to individually constitute


mitigating circumstances, but when collectively weighed against the adverse consequences of a
five-year prohibition against running in an election, the disincentive to volunteer, and the timing
to seek a remedy just before an expected election call, I conclude I should exercise my discretion
under s 44 ofthe EFCDA.

[71] As such, the Application is granted, and the Applicants' deadline for filing the
nomination contestant campaign return as required by Section 43.01 ofthe EFCDA is extended
to September 27,2018.

The Applicants' Alternative Position


[72] Because I have granted the application to extend the time limit to file the Retum, it is not
necessary to deal with the Applicants' alternative arguments.
[73] I will, however, note that the Respondent correctly asserts that these arguments are more
appropriately characterized as an application for judicial review, requiring notice to the Attorney
General under Rule 3.15 ofthe Alberta Rules ofCourt and, arguably, notice to the Speaker and
the Legislative Assembly.

Heard on the 22"^^ day ofFebruary,2019.


Dated at the City ofEdmonton, Alberta this 4^'' day of March, 2019.

G.D.B. KendeU
J.C.Q.B.A.
Page: 12

Appearances:

Debra Curcio Lister and Adrienne Funk


Miller Thompson LLP
for the Applicants

Paula Hale and Kathleen Elhatton-Lake


Shores Jardine LLP
for the Respondent
Page: 13

Appendix A

Election Finances and Contributions Disclosure Act^ RSA 2000,c E-2

1(b) "campaign period" means...

(v) in the case of a nomination contest, the period beginning on the


date the nomination contestant is required to register under section 9.3 and
ending 2 months after the day on which a nomination contestant is
selected for endorsement as the official candidate of the registered party
for an electoral division...

(1.4) "nomination contest" means a process referred to in section 9.3 for the
selection of a person for endorsement as the official candidate of a registered
party for an electoral division;
(1.5) "nomination contestant" means a person who seeks endorsement in a
nomination contest as the official candidate of a registered party for an electoral
division...

(n.2) "registered nomination contestant" means a nomination contestant registered


under section 9.3...

(2) For the purposes of this Act, a document that is required to be filed with the Chief
Electoral Officer is filed when it is actually received by the Chief Electoral Officer...

9.3(1) Before a nomination contest is held by a registered party or registered constituency


association, the chieffinancial officer ofthe registered party or registered constituency
association shall file with the Chief Electoral Officer a statement, in the form and manner
approved by the Chief Electoral Officer, setting out the particulars ofthe nomination contest,
including

(a) the date ofthe official call ofthe nomination contest,


(b) the date fixed for the selection ofthe person for endorsement as the official
candidate ofthe registered party for an electoral division, and
Page: 14

(4) A person who intends to seek endorsement as the official candidate of a registered party
in an electoral division shall file an application for registration with the Chief Electoral Officer
under this section at the earliest ofthe following:

(a) when the person has announced his or her intention to seek the endorsement as the
official candidate ofthe registered party for the electoral division;
(b) when the person has incurred campaign expenses in relation to the person's
nomination campaign;
(c) when the person has received contributions in relation to the person's nomination
campaign.

(10) Within 10 days ofthe conclusion ofa nomination contest, the registered party or
registered constituency association shall submit to the Chief Electoral Officer a statement setting
out the full names ofthe nomination contestants who were considered for endorsement, the full
name ofthe person selected for endorsement as the official candidate ofthe registered party for
the electoral division and the names of any persons who withdrew as nomination contestants.

43.1(1) Within 4 months after the conclusion of a nomination contest, the chief financial officer
of a registered nomination contestant shall file with the Chief Electoral Officer a nomination
contestant campaign return, which must include

(a) a financial statement,


(b) the contribution report referred to in section 32(4.2),
(c) a campaign expense report setting out the campaign expenses incurred by the
registered nomination contestant,
(d) an expense limit report referred to in section 41.4(3), and
(e) any supporting information and documents relating to the nomination campaign
return.

(2) This section also applies to any registered nomination contestant who withdraws fi-om the
nomination contest.

(3) The Chief Electoral Officer may issue guidelines relating to the preparation and contents
ofthe nomination contestant campaign return and shall publish any guidelines on the Chief
Electoral Officer's website.

43.2(1) In this section,"filing deadline" means the day by which a financial statement referred to
in section 42 is required to be filed with the Chief Electoral Officer or the date by which a return
referred to in section 43,43.01,43.02 or 43.1 is required to be filed with the Chief Electoral
Officer.
Page: 15

(2) A registered party, registered constituency association, registered candidate, registered


nomination contestant or registered leadership contestant that is required to file a financial
statement under section 42 or a retum under section 43,43,01,43.02 or 43.1, and fails to file that
document by the filing deadline must pay a late filing fee of$500 to the Chief Electoral Officer.

(3) The Chief Electoral Officer shall not cancel the registration ofthe registered party or
registered constituency association under section 10(3)ifthe financial statement or retum is filed
in the case of a financial statement referred to in section 42 or a retum referred to in section 43,
no later than 30 days after the filing deadline.

(4) The Chief Electoral Officer shall not transmit a report in relation to a registered
candidate, registered nomination contestant or registered leadership contestant under section
44(1)ifthe retum is filed no later than 10 days after the filing deadline.

(5) The following persons are jointly and severally liable for payment ofthe fee referred to in
subsection (2):

(a) in the case of a registered party, the registered party and the chieffinancial officer
ofthe registered party;
(b) in the case of a registered constituency association, the registered constituency
association and the chieffinancial officer ofthe registered constituency
association;
(c) in the case of a registered candidate, registered nomination contestant or
registered leadership contestant, the registered candidate, registered nomination
contestant or registered leadership contestant and the chieffinancial officer ofthe
registered candidate, registered nomination contestant or registered leadership
contestant.

(6) If the late filing fee is not paid within 30 days after the date the fee was payable, the
Chief Electoral Officer shall send a notice to the persons referred to in subsection (5), as
applicable, indicating the amount ofthe late filing fee that is required to be paid.

(7) If the persons who are sent notices by the Chief Electoral Officer under subsection(6)
fail to pay the late filing fee set out in the notice, the Chief Electoral Officer may file a copy of
the notice with the clerk ofthe Court of Queen's Bench, and on being filed, the notice has the
same force and effect and may be enforced as if it were a judgment ofthe Court.

44(1) Subject to section 43.2(4), ifthe chief financial officer of a registered candidate,
registered nomination contestant or registered leadership contestant fails to file a retum as
required by section 43,43.01 or 43.02 or a revised retum under section 43.1, as the case may be,
the Chief Electoral Officer shall transmit a report to that effect to the Speaker ofthe Assembly,
who shall on its receipt lay the report before the Assembly ifit is then sitting or, ifit is not then
sitting, within 15 days after the commencement ofthe next sitting.

(2) After the Chief Electoral Officer transmits the report under subsection (1), the Chief
Electoral Officer may publish a copy ofthe report on the Chief Electoral Officer's website.
Page: 16

(3) If the Speaker lays a report before the Assembly under subsection (1), the registered
candidate, registered nomination contestant or registered leadership contestant concerned or bis
or her chief financial officer, or both, may, within the 60-day period following the date on which
the report was laid before the Assembly, apply to the Court of Queen's Bench for relief.

(4) On hearing the application, the Court may

(a) dispense with compliance with section 43,43.01,43.02 or 43.1, or any provision
ofthe relevant section, if it considers that the non-compliance is due to
circumstances beyond the control ofthe registered candidate, registered
nomination contestant, registered leadership contestant or chief financial officer,
and that it is not reasonably possible to comply with the section,
(b) extend the time for compliance with section 43,43.01,43.02 or 43.1, or any
provision ofthe relevant section, ifit finds mitigating reasons for non-compliance
with the section,
(c) make any order that it considers appropriate to secure compliance with so much
ofsection 43,43.01,43.02 or 43.1 as it considers reasonable in the circumstances,
or

(d) refuse the application.

(5) An application to the Court under this section must name the Chief Electoral Officer as
respondent.

(6) The decision ofthe Court is final and not subject to appeal.

Election Act, RSA 2000, c E-1

57. A person is prohibited from being nominated as a candidate in an election if

(a) the Speaker has laid a report before the Assembly pursuant to section 44(1)ofthe
Election Finances and Contributions Disclosure Act,
" (b) that person was the registered candidate or the registered nomination contestant or
the chief financial officer ofthe registered candidate or registered nomination
contestant referred to in the report,
(c) the Court did not dispense with compliance with section 43,43.01, 43.02 or 43.1
ofthat Act by an order under section 44(4) ofthat Act, and
(d) nomination day for the election occurs within

(i) the 8-year period following the day on which the Speaker laid the report
before the Assembly, or
(ii) where the return has been filed with the Chief Electoral Officer, the 5-year
period following the day offiling, whichever period expires first.