On March 7, 2025, Justice Andromache Karakatsanis, backed by Justices Sheilah Martin, Nicholas Kasirer, Mahmud Jamal and Michelle O’Bonsawin, declared of no force or effect s. 37.10.1(2) of Ontario’s Election Finances Act (EFA): Ontario (Attorney General) v. Working Families Coalition (Canada) Inc., 2025 SCC 5.
The five-judge majority ruled that the 2021 provision breaches the Charter s. 3 protection of the right to vote and cannot be upheld under Charter s. 1 as a limit that is “reasonable and demonstrably justified in a free and democratic society.”
The now-moribund provision — which was challenged successfully below at the Ontario Court of Appeal level by a number of unions, a civil society organization and several individuals — restricted the amount that third parties could spend on political advertising to $24,000 in any one electoral district and to $600,000 in total, during the entire 12-month period before a provincial election period.
By contrast, s. 38.1 of the EFA limits political parties’ political advertising spending to $1 million in the six months right before the election period, but imposes no spending limits at all on political parties before that.
SCC Justice Andromache Karakatsanis
However, “an examination of the extent of low-cost advertising that third parties can still engage in does not capture the broader impacts of the spending limit that, by design, creates absolute disproportionality, or a disproportionality that is so marked on its face that it allows political parties to drown out the voices of third parties on political issues from reaching citizens during an entire year of legislative activity,” Justice Karakatsanis wrote.
Noting that “courts must exercise great care” when determining whether a breach of s. 3 of the Charter is justified under s. 1, she went on to hold that the spending limit could not be saved because the law was not minimally impairing.
“While the objective of the spending limit to promote an egalitarian model of elections is pressing and substantial, and a spending cap on third parties is rationally connected to that objective, the province has not shown that the challenged spending limit minimally impairs s. 3,” she concluded. “The length of the limit far surpasses what is reasonably necessary to protect the integrity of the election process, or the primary role of political parties in the electoral process.”
In finding a breach of s. 3, Justice Karakatsanis, who was Ontario’s top public servant before she joined the bench, pointed out that the spending limit applies to issue-based political advertising during fully a quarter of the standard four-year life of a legislative assembly, “during which citizens’ s. 3 rights are engaged and the government is engaged in policy development and lawmaking.”
The third-party political advertising spending limit “has the clear potential to severely curtail voters’ exposure to different views on the political issues that define their community in the year before the election period,” she reasoned. “During this period, the legislature will sit, as it must do under s. 5 of the Charter, debating policies and influencing the election agenda,” she remarked.
Moreover, the fact that third parties are strictly limited in their ability to inform citizens while political parties face no restrictions in the first six months of the pre-writ year is a differential treatment that creates a disproportionality in the political discourse, she said. “Further, this disproportionality in political discourse persists over the second six months” within the one-year period.
“If third parties do provide their perspective during the first six months of the pre-writ year, they may be unable to contribute meaningful information closer to the election,” Justice Karakatsanis noted. “As a result, on their face, the statutory provisions create an absolute disproportionality in the broader political discourse that deprives voters of a broad range of views and perspectives on issues during a critical period in the democratic cycle. This undermines the voter’s right to an informed vote and to meaningful participation in the electoral process.”
In two separate opinions, the four dissenting judges would have allowed Ontario’s appeal from the majority Ontario Court of Appeal ruling below on the basis that the impugned spending limit on third-party advertising does not infringe the right to meaningful participation under s. 3 of the Charter.
“It has not been established that the limit will have the effect of depriving each citizen of a reasonable opportunity to introduce their ideas and opinions into the political discourse or become informed of facts, ideas and others’ perspectives,” Chief Justice Richard Wagner and Justice Mary Moreau wrote jointly. “While certain features of the spending limit scheme merit careful scrutiny, it has not been established on a balance of probabilities that these features undermine citizens’ right to meaningfully participate in the electoral process.”
In their separate dissent, Justices Suzanne Côté and Malcolm Rowe disagreed with (among other things) the majority’s focus on the question of whether the spending limit creates disproportionality in the political discourse. “This comparative analysis should be rejected,” they urged.
“In the context of s. 3, the question is not whether the spending limit creates a disequilibrium in the political discourse, but rather whether the limit infringes a voter’s ability to meaningfully participate in the electoral process,” they reasoned. “The analysis must be, first and foremost, voter‑centric.”
Justices Côté and Rowe argued that the majority’s analysis conflates the relationship between the Charter’s s. 2(b) protection of freedom of expression and the s. 3 right to vote “by implicitly elevating third parties to the status of rights‑holders. This is incorrect. Third parties ought to be properly conceptualized as interest groups who seek to contribute to, and influence, the political discourse. Section 3 does not protect the parties seeking to be heard. Rather, it is a participatory right which extends to individual citizens and their right to make an informed vote. Citizens are the exclusive rights holders in s. 3.”
The Ontario government declined to tell Law360 Canada whether it is considering, or will bring in, new legislation to restore, in some fashion, a third-party political advertising spending limit.
“Having just finished the election, in which the people gave Premier Ford and our government a strong mandate, this decision has no immediate impact,” said spokesperson Grace Lee. “We’ll review the decision and determine next steps in due course.”
Paul Cavalluzzo, Cavalluzzo LLP
“Up to this point in time, the courts have always given primacy to political parties and political candidates. . .in my view, to the prejudice or detriment of third parties, which, of course, are citizens groups, trade unions, religious groups, Indigenous groups, and so on. . . And this judgment clearly demonstrated that the legislation was. . .far too disproportionate to the rights of political parties over third parties.”
Cavalluzzo said the decision also underscores “how crucial s. 3 is. It's one of the few provisions that is exempted from the notwithstanding clause.”
He noted that his clients previously successfully attacked in court the law’s constitutionality on the basis that it breaches the Charter’s s. 2(b) guarantee of freedom of expression. However, the Ford government then passed the same law again, but shielded it with the notwithstanding clause.
“He had a freebie for two elections, unfortunately. . .with this unconstitutional law where. . . third parties were restricted for those two elections,” Cavalluzzo remarked.
Susan Ursel, Ursel Phillips Fellows Hopkinson LLP
“This case is a landmark case about the rights of full participation of citizens in democracy in Canada,” she said. “It is an absolute landmark case about democratic values in Canada and I think it has messages for the world in it. . .because it actually fundamentally asserts the importance of third-party voices, like trade unions, but also like environmental groups, citizens groups of all shapes and forms, nonprofit agencies: everybody has a right to proportionate and. . .full participation in our democratic debate.”
Ursel added “I don't think we can underestimate the importance of this decision at this historic moment when we look at what's going on in the United States, and we look at the drowning out of the voices of ordinary citizens. This decision stands as a bulwark against the erosion of citizens’ participation in a democracy. It is really important. I cannot put it strongly enough.”
Justice Karakatsanis’s judgment also provides the Supreme Court’s first guidance on how to analyze s. 3 in the context of pre-writ election advertising spending limits, she said. “It’s a comparative exercise between how much voice third parties versus political parties are given.”
Christine Davies of Toronto’s Goldblatt Partners LLP, who with Howard Goldblatt and Anna Goldfinch represented the Elementary Teachers' Federation of Ontario and Felipe Pareja, parties who also successfully challenged the law’s constitutionality, called the majority’s judgment “a forceful articulation of voting rights and the importance of protecting the integrity of the political landscape both during and between election periods.”
As well, “the majority further recognized that voting rights under s. 3 have both individual, as well as institutional dimensions, and must be seen in light of the related political rights under ss. 4 and 5 of the Charter,” Davies said. “The court’s decision accordingly signals that the Charter protects the integrity of our political system, which is an aspect of this decision that is both very timely and will have lasting importance.”
She said the majority recognized that “there is a danger when political actors such as parties can communicate without restriction to voters while independent voices are restricted, which introduces a disequilibrium in the political landscape that deprives voters of a broad range of views and perspectives on social and political issues.
“This risk arose both from the broad definition of political advertising and the Hobson’s choice faced by third parties in attempting to communicate on politically important issues under the constraints placed on them by a 12-month pre-writ period, which was without precedent in Canada. The majority observed that by contrast, under the federal Canada Elections Act, there is no limit on ‘issue advertising’ before the writ period.”
Connor Bildfell, McCarthy Tétrault LLP
“Some courts have confused or conflated these two separate analytical frameworks, assuming that a breach of one protection necessarily entails a breach of the other,” he explained. “But ss. 2(b) and 3 are different protections, with different purposes and different texts. The dissenting reasons pick up on these differences. They recognize that although there may be overlap between s. 2(b)’s protection and s. 3’s protection, that does not collapse them into one omnibus right. To respect the basic structure and text of the Charter, the content of one protection should not be imported into the other, nor used to modify the scope of the other.”
Bildfell predicted that in future decisions, some courts may look to the dissenting opinions “for guidance on the differences between the two protections. While these two protections each play a vital role in our democracy, each role is different.”
Heather MacIvor, legal researcher
“First, the majority failed to take a contextual approach to the impugned legislation,” MacIvor told Law360 Canada.
“Justice Karakatsanis mechanically applied the ‘egalitarian’ approach endorsed in the 2004 [Supreme Court] Harper ruling to the wording of the impugned provision, and concluded, at para. 44, that the spending limit ‘overwhelm[s] or drown[s] out the voices of third parties during a critical period in the democratic cycle’.”
“This conclusion ignores the factual finding by the application judge, at para. 77, that advocacy groups can use social media to effectively communicate their political views and preferences to the voting public during the pre-writ period without spending anywhere near the $600,000 limit in the impugned legislation,” she said. “In other words, the majority seems oblivious to the transformation of political communication in the two decades since Harper, despite the clear and unchallenged findings of fact in the Superior Court.”
“Second, I agree with Rowe and Côté JJ. that the majority erred by importing much of the substance of s. 2(b) into its analysis of s. 3,” MacIvor said. “I also agree with Rowe and Côté JJ. that conflating ss. 2(b) and 3 is particularly problematic in this case because — as they observe at para. 181 — doing so ‘allow[s] s. 3 to function as a backdoor to insulate expression, which would otherwise be subject to legislative override’.”
She noted that while she disagreed with the Ford government’s decision to invoke s. 33 of the Charter to protect the third-party spending limits from nullification as an unjustified infringement of s. 2(b), “there is no question that the invocation was a lawful response to the first Working Families ruling from the Ontario Superior Court of Justice. The proper approach to the s. 3 challenge, which the application judge adopted in Working Families 2, was to apply the established test for infringements of the individual right to vote and to run for office — not to import considerations of ‘equilibrium in the political discourse,’ which properly belong to s. 2(b),” she opined.
The provision’s history is unusual.
In 2021, Ontario Superior Court Justice Edward Morgan held that the 12-month limit infringed the Charter’s s. 2(b) guarantee of free expression and could not be upheld as reasonable and demonstrably justified under s. 1 because the limit was not “minimally impairing” the political speech of third parties (including unions and citizen groups) in the lead-up to the 2022 election: Working Families Ontario v. Ontario (Attorney General), 2021 ONSC 4076.
The Ford government then re-enacted s. 37.10.1(2), invoking the s. 33 override “notwithstanding” clause to shield the provision from further attack in court for up to five years. Returning to court, the applicant coalition of third parties argued the re-enacted provision breached s. 3 of the Charter by denying Ontario voters the information they need to participate meaningfully in the electoral process.
In 2021, Justice Morgan dismissed the second Charter challenge, ruling that the re-enacted spending limit did not breach s. 3 but, rather, promoted meaningful electoral participation by preventing wealthy interests from monopolizing election discourse: Working Families Coalition (Canada) Inc. v. Ontario (Attorney General), 2021 ONSC 7697.
On appeal by the third-party coalition, a split Ontario Court of Appeal reversed 2-1 in March 2023, declaring the challenged spending restrictions invalid but suspending the effect of its declaration for 12 months to allow Ontario to bring in Charter-compliant legislation.
At the Supreme Court of Canada, the appellant Ontario government argued the standard of review was correctness and that the appeal court’s majority conflated the Charter ss. 2(b) and 3 analysis by applying a test that turned on two “proxies,” namely whether the restrictions are “carefully tailored” and whether they permit a “modest informational campaign.” Among other things, Ontario also argued that the majority erred by importing a justificatory analysis into the s. 3 analysis and by failing to give deference to the application judge’s factual findings.
The respondent trade unions, civil society organizations and citizens tendered evidence below establishing that third-party political advertising is one of the most effective means of informing and engaging voters, political parties and candidates on important public policy issues, contributing to the political discourse and electoral debate and promoting an informed citizenry and vote. They argued in the appeal that the application judge interpreted the scope of the s. 3 right narrowly, contrary to the required broad, purposive and contextual approach to Charter rights and thereby failed to account for the value of the respondent unions’ democratic and political discourse in promoting the egalitarian model of elections — which requires that individuals have an equal opportunity to participate in the electoral process regardless of wealth — as well as the rights of citizens and civil society organizations to meaningfully participate in the electoral process in the year leading up to the writ period.
Photo of Supreme Court of Canada Justice Andromache Karakatsanis: Jessica Deeks Photography, SCC Collection
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