Ottawa court rulings find minor mistakes grounds for costly election audits

Candidates who make even a small mistake on their election finance returns should face an audit, two Ottawa judges have ruled in back-to-back decisions that a lawyer worries could lead to abuse. 

The cases stem from a number of complaints made by prominent local developer Ted Phillips. 

He alleged that both Doug Thompson, who ran and lost in Osgoode ward in 2022, and Coun. Shawn Menard failed to report the full value of reused campaign signs.

Both were accidental misrepresentations of less than $200. 

On appeal, judges said the city's independent election compliance audit committee has no "discretion" to opt out of a pricey external audit and let candidates off the hook. 

Laywer Stéphane Émard-Chabot, who represented Thompson, worries this legal interpretation could cause "significant" public dollars to bankroll "fishing expeditions." 

"This could be done really for political reasons, for personal vendettas, and by setting the bar so low, it opens the door to abuse," he said. "This is a very cumbersome approach for issues that are really, in most cases, trivial."

'Clerical errors' suspected

In both cases, the difference would not have brought either candidate's spending above the maximum allowed. 

Thompson admitted to accidentally leaving in a placeholder amount and the committee ordered an audit. 

He appealed that decision and lost, but the committee which reviewed the results of the audit ultimately opted not to send a case to an independent prosecutor.

In Menard's case, the committee found there wasn't sufficient evidence to pursue an audit. Phillips appealed and won. 

"I will respect it and provide all the documentation for the clean campaign that we ran," Menard said in response, noting he was not surprised by the appeal given who brought it. 

"We each take political positions on issues. I've obviously been known to oppose things like developer influence in the city," said Menard. "This is the sort of thing where if you potentially have a lot of money to spend, you can take these things pretty far without real wrongdoing being found." 

Menard said he understands that the judge needs to follow the letter of the law, even in the case of a "$30 clerical error." 

Phillips declined an interview with CBC through his lawyer, but noted the decision in Menard's case and stated the Thompson case has been "resolved to [his] satisfaction."

His cases to the committee relied on the argument that there must be transparency and accountability in order to preserve public trust. 

Small errors can reveal large ones, says judge

Justice Calum MacLeod wrote in the Menard decision that "an error in reporting could be indicative of further irregularities."

Émard-Chabot rejects that. 

"The fact that I'm caught speeding doesn't mean I'm a murderer," he said. "That's the type of reasoning that I find problematic."

The lawyer, who's also a former two-term councillor, argued the need for transparency must be balanced with the cost to taxpayers — a concern Menard shares. 

Accounting firm Raymond Chabot Grant Thornton was contracted to perform Thompson's audit for $84,750. 

The city will also need to hire an auditor in Menard's case. It would not say how much the city has so far paid in additional legal costs related to the appeals. 

Émard-Chabot worries about a price that's harder to measure. 

"The more risks and the more barriers are put in place, the more you're going to deter people from seeking office," he said. "If you know when you're running that, you could be facing a very lengthy, very public, expensive audit process for what really is a minor and admitted error in your reports, then you're just adding to the problem."

Émard-Chabot called that a "disservice" to local democracy that may also be felt in other cities, if this precedent spreads. 

For now, though, he has this advice to politicians: "If you're in Ottawa, your documents that you submit better not have a typo in them."