The appellant, Brian Graff, wished to be a candidate in the race for the leadership of the respondent New Democratic Party. The New Democratic Party said no, twice. This case is about Mr. Graff’s efforts to have these decisions quashed.
Administrative law – Decisions of administrative tribunals – Judicial review – Bias – Standard of review – Reasonableness simpliciter – Government – Associations and clubs
Graff v. New Democratic Party,  O.J. No. 2971, 2017 ONSC 3578, Ontario Superior Court of Justice, June 9, 2017, I.V.B. Nordheimer J.
Mr. Graff submitted his application to participate in the leadership race in October 2016. He said he met all of the candidacy requirements. His application was reviewed by the National Director, who identified some concerns that he outlined to Mr. Graff. After much back and forth between the parties, the National Director eventually wrote to Mr. Graff and advised him that his application had not been accepted. No reasons were provided. This decision was appealed to the Appeal Officers. The appeal was denied, also without reasons.
But the story does not end there; Mr. Graff was not about to give up that easily. On March 14, 2017, he brought an application for judicial review. Shortly thereafter, the respondent agreed to hold a “fresh hearing” on Mr. Graff’s application. Mr. Graff’s persistence appeared to be paying off. In the interim, the application for judicial review was settled and withdrawn.
As part of the fresh hearing, the National Director wrote to Mr. Graff informing him of his “concerns” about his application including, somewhat ironically, Mr. Graff’s “propensity for litigation”. Responses were provided by Mr. Graff. Despite this, the National Director again rejected the application, although this time with reasons. Mr. Graff again appealed. Mr. Graff raised concerns about bias. The Appeal Officers rejected the appeal, stating simply, “We are satisfied with the reasons provided by [the National Director].”
So, Mr. Graff was off to seek judicial review, once again. This time, however, the matter proceeded to hearing. There were essentially two issues raised: (1) whether the decisions rejecting Mr. Graff’s candidacy were the proper subject of judicial review under the Ontario Judicial Review Procedure Act; and (2) assuming that was the case, whether the decisions were reasonable.
The first issue came down to the characterization of the candidacy process. The respondent sought to characterize itself as “simply a private voluntary association of individuals” who, in terms of selecting its leader, is engaged in an “entirely internal process”. On the other hand, Mr. Graff sought to emphasize the inherently public nature of the candidacy process and how the process is “inextricably linked to the public domain”. In the end, the Court sided with Mr. Graff. The Court held, speaking about political parties more generally, that the decision they make in terms of the candidates they put forward, the policies they adopt, and the leaders that they choose, do have a very serious effect on the rights and interests of the entire voting public. As the Court quite clearly stated, “political parties in this country frame the debate and dictate the policies from which the voting public is expected to choose…. there is no ‘none of the above’ option for the voting public”. Although at the same time recognizing that courts ought to be reluctant to step into the political realm, the Court concluded that where the decision of such associations have a very broad public impact, then the decisions will fall within the purview of public law and are reviewable. The Court said the decisions pertaining to Mr. Graff’s application fell within this domain.
On the issue of reasonableness generally, the Court addressed three points. First, it rejected the appellant’s argument that the power of the National Director to reject candidacy applications was limited. This was largely based on an interpretation of the relevant Leadership Rules. Second, the Court rejected the appellant’s argument that the National director was biased. Mr. Graff tried to argue that the bias arose because of the National Director’s involvement with his application on the first occasion (where it was rejected) and the “shifting rationales” between the two rejections. The Court held that, in fact, the original reasons for the rejection were among the reasons set out in the second rejection as well, so the shifting rationales argument carried no weight. In any event, the Court took comfort in the fact that there was an internal appeal process within the respondent’s candidacy structure, which it said alleviated some of the concerns about possible bias. This led to the critical issue of whether the decisions were ultimately reasonable. Given the Court’s previous findings, it had little trouble in concluding that the decisions were indeed reasonable. The Court relied heavily on the principle of deference inherent to the reasonableness standard. Countering its earlier finding that such political decisions are reviewable, the Court held that this does not mean that the courts should “second guess those decisions or micro manage them”.
In the end, the Court dismissed the application for judicial review.
This case was digested by Adam R. Way of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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