Edmonton business owner seeks wide-ranging court restrictions in political advertising case

An Edmonton business owner and the Canadian Taxpayers Federation want to challenge provincial political advertising rules that they argue are unconstitutional.  (Jason Franson/The Canadian Press - image credit)
An Edmonton business owner and the Canadian Taxpayers Federation want to challenge provincial political advertising rules that they argue are unconstitutional. (Jason Franson/The Canadian Press - image credit)

An Edmonton man who does business with the Alberta government wants a judge to grant him anonymity in a Canadian Taxpayers Federation court challenge over political advertising rules.

The court case is between the Canadian Taxpayers Federation (CTF) – a non-profit group that advocates for lower taxes and lower government spending – and Alberta's election commissioner.

The province's chief electoral officer and minister of justice are also named as respondents.

According to court documents, in 2018 the CTF knowingly violated provincial political advertising rules by paying for billboards that critiqued then-premier Rachel Notley's statements on carbon taxes and pipelines.

In its filings, the CTF admits it wanted to attract the attention of the province's election commissioner so that it could challenge the constitutionality of the advertising rules.

The CTF has since filed an application for a judicial review of the commissioner's ruling, arguing that it shouldn't have to register as a third-party advertiser outside of an election campaign period, and that it shouldn't have to disclose the identities of donors who pay for its advertising.

As part of its arguments, the CTF is seeking to add one of its donors to the case.

The Edmonton business owner regularly donates to the CTF, but says the Alberta government is one of his largest and longest-standing customers.

In an affidavit filed with the court, the man said his experience has revealed many examples of tax dollars being wasted, which is why he supports CTF.

"I fear that no matter who is in government, my support of the CTF could hurt my chances to maintain and grow existing business with governmental clients," he said.

The CTF and the business owner are seeking several restrictions to protect the owner's identity, including:

  • A publication ban on his identity and any identifying information about him.

  • A partial sealing of court records to conceal any that would identify him or his family.

  • An order allowing him to give evidence in a way that prevents him from being identified, including by excluding the public from hearings as necessary.

  • An order excluding the public from the hearings as much as necessary.

  • An order allowing for him to be identified as John Doe throughout the proceedings.

The man said if publication of donors is required, he will stop supporting the CTF. He said he wishes he could publicly support the court action but can't risk it.

"I fear the repercussions it would have for me, my family  and our respective businesses," he said.

Media challenge

Three Edmonton media agencies, including CBC, are challenging the application for restricting access to the case.

"This is very broad and extraordinary relief that's rarely granted in a Canadian court," the media agencies' lawyer Tess Layton told court during a brief appearance Thursday morning.

Court of King's Bench Justice Marta Burns determined Thursday that more time was needed to hear arguments on the application. A date for the hearing has yet to be scheduled.

In the interim, there is a publication ban on the business owner's identity.

The billboards

According to court documents, CTF paid $1,955 for two Edmonton billboards to go up with the message "You can't buy 'social license' when it's not for sale" in July 2018. The money for the advertisements came from donors.

The advertisements were in reference to then-premier Rachel Notley's messaging that a carbon tax would earn Alberta the social license it needs to get pipelines built.

The Election Finances and Contributions Disclosure Act (EFCDA) requires third-party advertisers to register if spending over $1,000 on political advertisements outside of an election period.

It also requires third-party advertisers to disclose the names and addresses of all contributors who give more than $250 to put toward advertising.

After receiving three public complaints about the billboards, the election commissioner launched an investigation and initially fined the CTA $1,000.

The CTA asked the commissioner to review the decision, asking him to consider their argument that the rules were unconstitutional because it could violate a person's right to privacy and exposethem to speculation that donor has fiscally conservative political leanings.

"The forced public disclosure of its donors contemplated by the EFCDA effectively removes the veil of a secret ballot thus impinging on our right to vote in a manner that is constitutional rights in a free and democratic society," the CTA argues.

The election commissioner proceeded with a review and decided to increase CTA's fine to $5,865.

The CTA filed the judicial review application in early 2019.

CTA lawyer Bruce Hallsor told court Thursday that progress on the case was delayed by the pandemic and other factors. He said his clients are keen to proceed but that a decision on the anonymity issue must come first.

In March 2021, amendments to the EFCDA came into effect, including changing the definition of political advertising to remove "an advertising message that takes a position on an issue" with which an elected politician or candidate is affiliated.