Court strikes down Ontario 3rd-party election spending law as unconstitutional

A provincial election financing law that would have limited third-party spending outside an election year has been struck down in Superior Court.

In a decision released today, Justice Ed Morgan ruled that several sections of the Election Finances Act tabled by the province this year infringe on rights set out in the Canadian Charter of Rights and Freedoms, and are "of no force or effect."

The Canadian Civil Liberties Association (CCLA) celebrated the decision in a news release. The court challenge was brought forward by groups including the Elementary Teachers' Federation of Ontario (ETFO), the Ontario Secondary School Teachers' Federation (OSSTF), and the union-funded Working Families Ontario.

"We warned the government at committee that this law would not withstand legal challenge. Today's ruling restores freedom of expression and freedom of association to Ontarians," said Cara Zwibel, the CCLA's Director of Fundamental Freedoms, in a statement.

"This is not just about the right of third parties to speak out on issues that are important to them — it is about the rights of all the people of Ontario to hear those messages and participate in our democratic system."

Unions and corporations have been banned from donating to Ontario's political parties since 2017, under reforms introduced by the then-Liberal government. The limit for annual donation by an individual was set at $1,600 and has risen with inflation each year. 

Unions and corporations have been allowed, however, to donate to the political activity of interest groups that are not political parties. 

Such non-party groups (dubbed "third parties" in Ontario election law) spent $5 million on campaign-related activities in the run-up to the 2018 election, an amount that dwarfs such spending in other provinces.

Among the biggest spenders were Ontario Proud, along with the Ontario Medical Association, the Ontario Real Estate Association, the Working Families group, and Unifor.

The changes would have imposed a spending limit of $637,200 on each group over a year-long period leading up to the election. A $600,000 spending limit was in effect for just six months before the 2018 campaign.

The court's decision notes a 12-month period would be "by significant margin" longer than any other jurisdiction in the country.

In the end, Morgan ruled that if the province wanted to amend the legislation in time for the next election, it would have to navigate the process in a way that "allows it to do so.

"The burden of this timing cannot be made to fall on the Applicants whose rights have been infringed," the ruling states.