The following designated persons, on behalf of the Applicant, were in attendance, made oral submissions to Committee, and/or answered questions from Committee:
- John Pappas, Aird & Berlis LLP (written submission on file with the City Clerk)
- Edward Phillips, Applicant
The following designated persons, on behalf of the Respondent, were in attendance, made oral submissions to Committee, and/or answered questions from Committee:
- Kyle Morrow, Fasken Martineau DuMoulin LLP (written submission on file with the City Clerk)
- Sam Hersh, Horizon Ottawa
The Committee recessed the meeting and deliberated in private on this matter pursuant to subsection 88.33(5.1) of the Municipal Elections Act, 1996. Upon reconvening, the Committee considered the following motion:
BE IT RESOLVED THAT the Committee issues the following decision and reasons:
Upon consideration of the election compliance application, and/or hearing the representations and/or reading the written submissions and documents submitted by the applicant, the registered third party advertiser, and their representatives, this Committee hereby grants the Application because it was presented with compelling and credible information which raises a reasonable probability that a contravention of the campaign finance provisions of the Municipal Elections Act, 1996 has occurred.
The Committee heard submissions from the Applicant’s representative (J. Pappas, legal counsel). Mr. Pappas referred the Committee to the Municipal Elections Act, 1996 provisions on third party advertisers, as well as the legislative debates leading to those provisions’ enactment. The Applicant advanced three submissions: 1) The event at issue, “Horizon Fest”, was not properly categorized on the Respondent’s financial statement (Form 8); 2) the Respondent incurred expenses before registering as a third party advertiser; and 3) the donation jar at the Horizon Fest event was not monitored to ensure no more than $25 was contributed, and only by eligible electors.
The Committee heard submissions from the Respondent (per. Mr. Hersh) and the Respondent's representative (K. Morrow, legal counsel). In brief, Mr. Morrow focused his submission on whether Horizon Fest was properly within the definition of a fundraising function, and argued that it was not. This submission was based in part on the fact that the event was a music festival lasting approximately 9 hours, only a portion of which was allocated to candidate speeches. Mr. Morrow also submitted that the Applicant provided no evidence that the $25 threshold was exceeded when the Respondent made available a donation jar at the Horizon Fest event. Finally, Mr. Morrow submitted that, as per the Ministry guidelines as set out in the “manual”, free, “unboosted” social media (tweets etc.) are not regulated. Further, posters are not regulated if soliciting of contributions is merely incidental.
The Committee is satisfied that there were reasonable grounds for the Applicant to suspect a violation of the Municipal Elections Act, 1996 based solely on the advertisements the Respondent posted on their social media account. The Committee takes note that the Respondent categorized the Horizon Ottawa event as a “third party advertisement” in its financial statement (Form 8). The Committee has considered the evidence put forward by the Applicant, specifically evidence of the Respondent’s Twitter tweets made on August 12 and 20, 2022 promoting the event. One of those posts shows a photo of the flyer the Respondent posted in various locations in Ottawa. The Respondent only registered as a third party advertiser on August 24, 2022. The Committee concludes that the Applicant reasonably inferred that the Respondent incurred costs for a third party advertisement, at a minimum those associated with designing and producing the flyer, before registering as a third party advertiser.
In light of the foregoing, it is unnecessary for the Committee to assess whether the Horizon Ottawa event was a “fundraising function” within the meaning ascribed in section 1 of the Municipal Elections Act, 1996. The Committee likewise need not comment on whether Horizon Ottawa’s use of the donation jar offended the Municipal Elections Act, 1996.
Finally, the Committee acknowledges Mr. Morrow’s submission that the Committee’s Rules of Procedure require that an application must reference the specific provision of the Municipal Elections Act, 1996 that the Applicant says he or she suspects has been offended. Mr. Morrow is correct. However, the Rules of Procedure also permit this Committee to vary or suspend the Rules’ requirements “to ensure that the real questions in issue are determined in a just manner”. We hereby exercise that discretion.
BE IT FURTHER RESOLVED THAT this Committee directs that the Office of the City Clerk, in consultation with the Committee’s independent legal counsel, to initiate a call-up against the City’s Standing Offer for Audit Services, and provide the Committee with the proposals received of up to three (3) potential auditors. The Committee will speak to the nature of the compliance audit to be carried out at the time of the auditor's appointment.
Member M. McGoldrick was not present when this vote was carried.