Conservatives ask court to quash Trost’s case

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Candiade Brad Trost speaks during the opening night of the federal Conservative leadership convention in Toronto on Friday, May 26, 2017. A final winner will be picked to lead the Conservative Party of Canada on Saturday night. THE CANADIAN PRESS/Nathan Denette

The Conservative Party of Canada is asking an Ontario court to toss Brad Trost’s case before he gets his day in court.

The failed Conservative leadership candidate launched court action against the party in September, after the Conservatives fined Trost $50,000 for allegedly leaking the party’s membership list to the National Firearms Association.

Trost asked for a judicial review of the party’s decision, accusing the Conservatives of breaking their own rules in deciding that Trost’s campaign was to blame. In a Toronto court on Friday morning, his lawyer Stephen Aylward called it a “sham” process.

The Conservative MP from Saskatchewan wants the Ontario court to compel the party to return the $50,000 his campaign was fined, or failing that, order an impartial review of the matter.

Among other things, Trost claimed, the party identified who had leaked the list before even contacting the Trost campaign, suggesting the outcome had been predetermined.

But the party, represented by Arthur Hamilton, called for the case’s dismissal because he said Trost didn’t first “exhaust” his party’s internal appeals process. He also argued at length that the divisional court does not have jurisdiction over the case.

Trost’s complaint is “at best a breach of contract claim,” Hamilton told Justice Markus Koehnen.

“He should not be in divisional court and he certainly should not be claiming judicial review status,” Hamilton said.

“His application has to be struck, he is in the wrong court.”

To rule in favour of the Conservative party, Koehnen told the court he must find that it is “plain and obvious” that Trost’s application for a review will “fail.”

The justice frequently challenged Hamilton on his arguments. His submission to the court was close to an hour longer than the arguments made by Trost’s lawyers, Aylward and Andrea Gonsalves, combined.

In an interview after the hearing Gonsalves said that, in order to be successful, Hamilton had to clear a “high threshold.”

Hamilton characterized it to iPolitics as a “stringent” test “because it can only be in the clearest of cases that a court will strike something before it’s heard on its merits.”

But he said he didn’t believe the motion was a long shot. “I know I’m correct that [Trost] has no business being there,” Hamilton said.

The central question before Koehnen is whether a 2013 case, Setia v. Appleby College, set new parameters for the divisional court or whether that decision and the cases that followed it strayed from the court’s mandate.

In her submission to the court, Gonsalves argued that the Setia case set a new standard and suggested that Hamilton was relying on stale case law, noting that many of his examples pre-dated the Setia decision.

“We’re not in any new territory here,” she told the justice.

She also argued that the case should not be looked at as a simple commercial or private dispute because it has “broader import.”

The party is “not any old private association,” she told Koehnen. “It is currently her majesty’s loyal opposition, and I would anticipate its objective is to form the government of the country one day. So it’s difficult to think of a private association that has a greater impact on the public at large.”

She then pointed to examples of cases where individuals successfully brought sports associations to the divisional court. Comparing those associations to the place the Conservative party holds in Canada, she said “that makes this case stronger in my submission.”

Koehnen reserved his decision on the motion, and said he would try to deliver a ruling in the next few weeks. Both parties asked for their legal costs to be covered if they are on the winning end of Koehnen’s decision.

Hamilton said both parties will have an option to appeal.

Trost recently lost his bid to stand as the Conservative candidate in his riding in the 2019 federal election.