Right ruling on parties

Brad Trost’s courtroom war with the Conservative Party of Canada seems to have come to a quiet end. Trost is the staunch Saskatchewan social conservative MP who finished fourth in the CPC’S leadership balloting last year, even though he has always had a difficult relationship with the party’s federal management. You will recall that the guy who finished second in the race has left the CPC. Trost’s votes, delivered to winner and Saskatchewan compatriot Andrew Scheer once Trost dropped off the ballot, did a lot to help decide the contest — but Trost had been smacked with a $50,000 fine by the organizing committee, and when the dust settled he decided to sue the party over it.

A panel of the Ontario Superior Court of Justice ruled against Trost in April, awarding $22,000 in legal costs to the CPC, and on Monday morning the Ontario Court of Appeal denied Trost leave to carry the quarrel any further. In the meantime, Trost was left out of Scheer’s shadow cabinet, and was then defeated in a springtime Conservative nomination battle when an experienced opponent appeared out of the blue. Trost will not have the chance to defend the Saskatoon-university seat he holds for the party.

After such a sequence of humiliations, you can’t help wondering whether Trost will be tempted to follow Maxime Bernier out the door and give us yet another alterna-conservative Party to vote for in the next general election. For the record, a Trost-kyite Party would be exceedingly skeptical of climate change, keen on defunding abortion and related services, and frantic to revive the issue of same-sex marriage.

Trost’s money may have inadvertently helped settle a legal question that had torn open in the courts: can administrative decisions by political parties be the subject of judicial review? The traditional Canadian answer is “Almost never”; it has been all but impossible until recently for political parties to be sued at all. Parties are considered private entities. Although they participate in electoral politics, and receive government money, they do not exercise statutory powers, or compulsory authority of any kind. They are free associations, and normally becoming a candidate for a party requires you to sign a contract and agree to its dispute-resolution procedures.

But Trost’s lawyers did have a thread of hope. In June of last year, an Ontario Superior Court judge, Ian Nordheimer, agreed to undertake a judicial review of a decision by the federal New Democratic Party to exclude Brian Graff — a perennial-candidate type now running for Toronto mayor, like everyone else on earth — from its leadership race. Justice Nordheimer had looked at the Canadian law on judicial review of private administrative actions, and he noticed that courts will jump into “exceptional” cases in which a private body’s conduct has “a serious public dimension.” Political parties being unquestionably serious things — no snickering, please — the judge decided that this gave him enough wiggle room.

The NDP passed Nordheimer’s fairness review, but the Graff ruling gave Trost an apparent opening, and seemingly set Ontario law apart from the traditional approach still being followed elsewhere. Trost, for what it is worth, was fined by the CPC because the party’s confidential membership list had been leaked to the National Firearms Association. The Conservatives, being clever devils, “salt” membership lists with fake or subtly altered entries when handing them out to individual leadership candidates. This lets them trace a leak if one happens, and the NFA leak led back to Trost’s copy of the list.

Trost points out that someone at party headquarters with access to all the salted lists could easily have framed his campaign, and he came to the Superior Court hoping to earn the right to make that argument to a judge, rather than to the same passel of Conservative bullies who had allegedly sewn him up. And you know what Ontario is like these days when it comes to judicial review. Anything could happen: you might get lucky and find yourself a Belobaba!

Alas, it was not Brad Trost’s lucky day. The threejudge Superior Court panel delivered quite a strong (and unanimous) lecture in favour of the old principle that political parties are private actors, not to be second-guessed willy-nilly by courts. Although it went little noticed at the time, the panel explicitly threw out its colleague Nordheimer’s decision in the Graff case, calling it “wrongly decided.” Graff was not only deemed inconsistent with appeal rulings in other provinces; the panel also pointed out that the Ontario Court of Appeal had said, in 2007:

“Although political parties play a critical role in the democratic process, they remain independent, private organizations, and their continued separation from the state is important to the proper functioning of that process. Their independence is fundamental.”

The Court of Appeal’s refusal of leave Monday suggests that it still likes the sound of those words. The reader will observe that this statement treats the imposition of public law on political parties as not just something to be done reluctantly, but a positive danger — a step toward making parties part of government, and thereby subject to it. Maybe we should thank Trost for investing so much in clarifying the state of the law. If he does start his own party, he can do so with the assurance that Canada’s courts will not bother him endlessly about how it is run.