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Amidst all the excitement around the Federal Court's May 23, 2013 decision (pdf) in which the court held that "electoral fraud occurred during the 41st General Election," the court was also asked to dismiss the applications outright on the basis of how the applicants were funding their legal bills.

This was one of many tactics employed by the respondent Members of Parliament (MPs) to derail the litigation and prevent it from ever being heard.

This issue around how the litigation was funded is of general importance in the context of public interest litigation. In public interest cases, the litigants, whether nonprofits or individuals, have limited financial means to pursue the litigation. Funding public interest litigation only gets harder and harder, so it was refreshing to see a complete vindication of the funding of this case by the Council of Canadians.

The MPs alleged that there was, contrary to the law, "maintenance and champerty" by the Council of Canadians. Maintenance is the promotion or support of a contentious legal proceeding by someone who is not a party to the litigation, and who has no direct concern in the proceedings. Usually, this is accomplished by providing financial assistance for the litigants, saving the litigant from bearing those costs him or herself.

Champerty goes one further: the person providing the funding does so further to an agreement to receive part of any profit that arises from the proceedings. Ontario has a very old law about champerty, dating back to 1897. This issue of champerty is one of the reasons it was illegal for so long in Ontario for lawyers to take on a case on contingency (while it has been legal since 2004, it is now exceptionally complicated).

To succeed in proving someone is committing "maintenance and champerty," there must be an "improper motive" by the maintainer. In addition, it must be shown that the persons initiating the litigation wouldn't be doing so but for the maintainer being an "officious intermeddler," through the financing of the litigation.

The respondent MPs alleged that the applicants were enlisted by the Council of Canadians, which was alleged to have a longstanding animus against the Conservative Party of Canada (CPC). The MPs further asserted that the Council was profiting by the fact that it was fundraising to support the applicants, and that it benefited from the increased profile it was gaining from this case. Finally, it was alleged that the Council was motivated not only by an animus against the CPC, but the Prime Minister, and that the Council was closely associated with the New Democratic Party and labour unions.

The court noted that there is no maintenance if the maintainer has a legitimate motive and was not acting maliciously. The evidence demonstrated that "the Council has been a consistent critic of government actions whatever party was in office. … [the court] was not convinced that the Council's motivations … were driven by a particular animus against the current Prime Minister and his party, as opposed to the broader interest in clean elections.” [para 109 of the judgment]

The court further went on to say that even if it was partisan on the part of the Council, this was not grounds for dismissal. At best, it might support an independent cause of action against the Council, i.e. a law suit against the Council, but not grounds to dismiss the case as "vexatious, frivolous, or not made in good faith," as is required by the Canada Elections Act.

The court noted that courts in general do not concern themselves with how a lawsuit is funded. It noted that maintenance and champerty may have some relevance in private property disputes over contractual arrangements and property rights, but it is "inconsistent … with the recognition in modern society of the role of nongovernmental organizations in facilitating access to justice and the validity of alternative arrangements for funding litigation, such as contingency fees … The cost of litigation, particularly when facing wellresourced respondents, are formidable." [para 111 of the judgment]

Lastly, the court concluded: "the applicants have no prospect of financial reward from these proceedings and there are issues of broad public interest at stake. It is doubtful that they would have had the financial ability to bring these applications on their own without support from some agency. The ability of citizens to bring matters before the courts in public interest should not be deterred" [para 112 of the judgment]. Indeed, it should not.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities, and socially-minded small business and individuals in Ontario.

Paula Boutis is a contributor to rabble's Pro Bono column. Boutis has practiced law for over a decade. She has a special interest in public interest environmental law, and practiced environmental law exclusively for her first five years of practice. Since joining Iler Campbell, she has broadened her practice, and has a broad ranging litigation practice for the firm's clients, including governance disputes, commercial and employment disputes, and electoral matters. She also provides advice on any number of issues for charities and non-profit clients.



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