Ontario Election Advertising Rules Upheld by Court; Refresher on Third Party Obligations

As Ontarians prepare to head to the polls on June 2, 2022, businesses and organizations who engage or are planning to engage in the political process should be mindful of Ontario’s Election Finances Act (EFA) and the rigorous third party political advertising regime that came into effect last year (see previous Blakes Bulletin here).

THIRD PARTY OBLIGATIONS

Under these rules, for the period starting June 14, 2021, and in the run up to the next provincial election set for June 2, 2022 (Pre-Election Period), third parties are limited to spending an aggregate amount of C$654,600 in political advertising and cannot spend more than C$26,184 in any one electoral district.

“Political advertising” includes a broad range of advertising related to public policy and is not limited to partisan ads specifically promoting or opposing a candidate or party. In particular, it includes “issue advertising”, which may apply to a wide range of public policy issues which are closely associated with a political leader, candidate or party. According to guidance for third parties issued by Elections Ontario, “determining whether a given issue is “closely associated” with a party, its leader, or a candidate will depend on which issues are likely to be addressed in the upcoming election campaign, or which are distinctly associated with a particular party, leader, or candidate in the public discourse.”

As a result, third parties should carefully monitor public policy topics that political leaders, candidates and parties take a position on during the Pre-Election Period. Advertisements on public policy topics may initially not be caught by the EFA but subsequently classified as issue advertising as the Pre-Election Period progresses. The EFA sets out detailed criteria to help determine whether issue advertising is political advertising.

Third parties must register with Elections Ontario upon incurring C$500 or more in political advertising expenses in either the Pre-Election Period or during an election period, in addition to filing interim reports in certain instances.

Third parties may not circumvent or attempt to circumvent the maximum Pre-Election Period spending amount, including by splitting themselves into two or more third parties for the purpose of circumventing the maximum amount or acting in collusion with another third party so that their combined Pre-Election Period amount exceeds the maximum amount.

Contravention of the EFA can result in steep fines and reputational consequences.

CONSTITUTIONAL CHALLENGE BASED ON RIGHT TO VOTE

In June 2021, Justice Morgan of the Ontario Superior Court struck down third party spending restrictions under the EFA for infringing on freedom of expression rights under the Charter. The Ontario government subsequently invoked section 33 of the Charter (Notwithstanding Clause) and reintroduced the third party advertising restrictions, which are now in effect. In Working Families Coalition (Canada) Inc. v. Ontario , a second constitutional challenge was brought arguing that the third party spending restrictions violated the right to vote under section 3 of the Charter, which is not subject to the notwithstanding clause.  

In reasons released in December 2021, Justice Morgan dismissed the new application and upheld the amendments. He stressed that the analysis under section 3 is distinct from the analysis under section 2(b) of the Charter. Relying on previous Supreme Court jurisprudence, he held that Section 3 encompasses the notion that restrictions on spending for political advertisements can enhance (rather than infringe) citizens’ exercise of the right to vote by helping to foster the equality of information among voters necessary for fair and meaningful participation in the electoral process.

Contrary to the applicants’ arguments, Justice Morgan held that the amendments did not restrict a third party’s ability to meaningfully participate in the electoral process. He found that there are myriad relatively low-cost and effective avenues available to third parties to advertise, such as op-eds, press releases, interviews, radio spots, mass mailings and social media. While the spending limits may realistically curtail the widespread use of television advertisements, they do not prevent third parties from conveying “important public policy” information. Justice Morgan held that while the spending restrictions must leave room for third parties to participate, they “need not ensure that any third party can mount an expensive media campaign with the potential for determining election results.”

As a result, he found that the third party spending restrictions do not infringe the right to vote under section 3 of the Charter. In this case, the restrictions were sufficiently tailored to the objective of fostering egalitarian elections. While the tailoring was neither “skintight nor to everyone’s taste”, it was “careful enough to be appropriate to the suit this time around.”

For further information, please contact:

Alexis Levine               416-863-3089
Iris Fischer                  416-863-2408
Laura Dougan            416-863-2187

or any member of our Public Sector Crisis & Compliance group.