Ontario v Working Families Coalition and Balancing Political Expression
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- 13 minutes ago
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by Anjali Choudhary, J.D. Candidate 2026
July 22, 2025
The standard response to a law being found unconstitutional is to amend it to bring it into compliance with constitutional standards. An alternative response, that is now seemingly becoming more common, is to invoke the notwithstanding clause to revive the law, unchanged. The Government of Ontario took this step in 2021 after imposing its most far-reaching restrictions to date on third-party political advertising during the pre-writ period.[1] It used the notwithstanding clause for the first time in the province’s history to protect these restrictions against a finding of unconstitutionality by the Ontario Superior Court of Justice.
The notwithstanding power — an authority granted to federal and provincial governments under section 33 of the Charter of Rights and Freedoms — has made headlines recently, with premiers in a number of provinces threatening its invocation to protect bills that have been or may be subject to court challenges.[2] Once section 33 has been invoked, courts are prevented from striking down a law that otherwise violates section 2 or sections 7 to 15 of the Charter.[3]
Though this power is extraordinary, it has internal limits. The theory is that sometime during the five-year period that the notwithstanding clause applies, an election will take place, and voters will be able to hold the government to account via the ballot box.[4] This, among countless other reasons, is why protecting voting rights is crucial in Canadian elections. What happens, then, if the notwithstanding clause is used on a law that is claimed to impact voting rights?
Because of the extraordinary nature of section 33, the framers of the Constitution Act, 1982 excluded voting rights from its application, leaving courts free to strike down laws that violate this section.[5] This built-in limitation allowed the Working Families Coalition — a civil society organization — and several trade unions to question whether Ontario’s third-party spending limits violate voting rights under section 3 of the Charter.[6] The answer to this question was apparently clear for the Supreme Court of Canada, needing only 67 paragraphs to explain that the bill was clearly and unjustifiably a violation of section 3.[7]
BACKGROUND
Ontario’s Election Finances Act (“EFA”) defines third parties in a political context as “a person or entity, other than a registered candidate, registered constituency association or registered party.”[8] Third parties are an important part of the political ecosystem in Canada; they allow voters to learn about different perspectives on election issues and candidates, help keep voters informed, and add fresh perspectives to the mainstream political discourse[9] to ensure it doesn’t get overrun by debates between two leading political parties. However, as with most things in life, too much of anything can be harmful and a balance must be struck between the voices involved in the political sphere. The question is: when does an attempt at balancing go too far?
The EFA has long regulated third-party political advertising. In 2017, third-party spending was capped at $600,000 during the six months prior to the writ period, which begins one month before election day.[10] In 2021, this was amended to increase the regulated length of time to 12 months with the spending limit remaining the same.[11] In contrast, political parties under the EFA are allowed to spend up to $1,000,000 in the 6 months before the writ period and have no spending limits prior to that.[12] Thus, in the first 6 months of the pre-writ year, political parties can theoretically spend millions of dollars while third parties must ration their $600,000.
The amendments to the spending limits were initially considered in the Working Families 1 case in the context of third parties’ freedom of expression under section 2(b) of the Charter.[13]
Justice E M Morgan at the Ontario Superior Court of Justice held that the changes to the spending limits for third parties clearly restricted their freedom of expression and could not be justified under section 1 of the Charter.[14] He particularly took issue with the fact that the legislation, which increased the length of the applicable period to 12 months, was not minimally impairing, as the government’s own expert evidence showed that the 6-month period employed by the previous legislation was an “appropriate and effective period.”[15] The legislation was held to be of no force and effect, given that the decision was released during the 12-month pre-writ period prior to the 2022 provincial election, when the limits would otherwise have been in effect.[16]
One day after this first judgment was rendered, the Government of Ontario announced its intention to implement the Protecting Elections and Defending Democracy Act, 2021 (“PEDDA”) — legislation that had the exact same unconstitutional provisions regarding third-party spending limits — and pre-emptively invoked the notwithstanding clause for the first time in the province’s history. Having to work around the fact that the legislation could no longer be struck down for violating section 2(b) due to the invocation of section 33, the applicants had to find a new way to challenge the law. They landed on section 3 of the Charter.
Section 3 of the Charter protects the right of each citizen to participate in the electoral process meaningfully.[17] These rights are engaged in the pre-writ period as well as once the writ has been drawn.[18] There are many ways this right has been interpreted by courts, but most relevant to this case is voters’ ability to be reasonably informed of their choices in an election.[19]
While Justice Morgan found that the PEDDA did not violate section 3 as the government chose one of two reasonable options—the 6- or 12-month restriction — the Ontario Court of Appeal held that the spending restrictions did infringe on voters’ section 3 rights by limiting their ability to be reasonably informed and meaningfully participate in the electoral process.[20] This judgment was then appealed up to the Supreme Court of Canada, the decision of which is discussed below.
MAJORITY DECISION
After the passing of two Ontario provincial elections since the Working Families battle began, the Supreme Court released its decision on the issue of whether limiting third-party election advertising — while allowing political parties to freely advertise for half of the same period — undermines voters’ right to be reasonably informed when casting their ballot.[21]
The Court’s decision was guided by looking at the imbalance created when restrictions under the EFA limit third parties’ influence while candidates and political parties remain free to speak to voters. It found that, not only does the differential treatment create unacceptable disproportionality in political discourse, but it is prolonged disproportionality, both in the first half of the period and a trickle-down effect for the second half.[22] As a result, the legislative provisions were found to, on their face, deprive voters of a broad range of relevant perspectives during the pre-writ period — an important part of the democratic cycle.[23] This undermines voters’ right to be informed and meaningfully participate in the electoral process.[24]
The majority’s analysis rested on the participatory nature of the right to vote, emphasizing that section 3 protects citizens’ right to “participate in the political life of the country through exposure to and involvement in the political discourse about policies and issues that affect them.”[25] This necessitates that citizens have access to the information that allows them to consider the strengths and weaknesses of candidates, parties, and their stances on issues.[26] Such an outcome, according to the majority, can only occur if there is an equilibrium in the political discourse where one voice or perspective does not drown out the others.[27]
In previous cases, the Supreme Court found that third-party spending could be restricted more strictly than that of candidates or political parties as they are expected to speak to fewer issues and have a comparatively smaller role in the electoral process.[28] However, having one party dominating the conversation threatens to ruin the balance and overly severe spending limits can interfere with voters’ access to a variety of views.[29] The Supreme Court has theorized this to be the “egalitarian model of elections” that balances the rights and privileges of candidates, political parties, third parties, and voters.[30]
The Court highlighted that this analysis is comparative and requires considering all actors and their respective roles in the electoral process, such that no actor should be able to exert undue influence on voters.[31] Consequently, it found that Justice Morgan erred in law by not comparing the third-party spending limits with the rules for political parties. The problem with this is that the competitive nature of the elections is such that the rules for one actor will impact the overall balance of information voters receive, making it so that undue influence can only be properly assessed by considering all sets of rules for all actors.[32] The Court held that this analysis might require evidence in some cases, but the EFA spending limits are so clearly disproportionate that such an inquiry is not necessary. Indeed, on its face, the fact that political parties face no spending limits in the first half of the pre-writ year can overwhelm or drown out third-party voices.[33]
The Court also took issue with the breadth and types of advertising that the EFA restricts. According to the EFA, if an advertisement “can reasonably be regarded as closely associated with a registered party or its leader or a registered candidate,” it gets restricted, even if it doesn’t explicitly reference the election.[34] Thus, third parties have to carefully decide whether or not to spend part of their budget to speak about issues of public importance or save it in case other important issues arise. In contrast, the government continues to sit in the legislature, develop laws and policies, and speak to issues of public importance.[35] This has the effect of potentially depriving voters of information and perspectives.[36]
In analyzing whether the section 3 violation was demonstrably justified under section 1 of the Charter, the Court found that it did not satisfy the Oakes test.[37] In the Court’s very brief section 1 analysis, the legislation was found to not satisfy the minimal impairment standard as the 12-month period is longer than what is necessary to protect the integrity of elections[38] — reasoning similar to that articulated by Justice Morgan under the section 2(b) issue.
CONCLUSION
As a 5-4 split decision, with two sets of dissenting reasons, this case and its associated issues are complex. However, with the majority finding that its conclusion is clear and did not need further analysis of the evidence, the decision creates ambiguity and uncertainty as to what level of disparity in spending limits between political parties and third parties allows legislation to remain constitutional.
With misinformation being an issue that is now consistently discussed in Canadian elections, it’s understandable that governments are attempting to regulate the information sphere around and leading up to election time.[39] Though the Supreme Court reiterated that limiting third-party spending is certainly constitutional, it did not clarify what guidelines or limitations future governments need to respect. The question of whether this particular attempt at balancing went too far is answered, but larger questions about what is and isn't permissible will need to be dealt with in future legal battles.
There is less ambiguity, however, in the decision’s implications for the notwithstanding clause. While the invocation of section 33 can often be viewed as the ultimate shield for governments to protect their legislation, all levels of court in this case have made clear that legislation will still be held to the limits within the Constitution, including those contained in Charter sections not covered by section 33. This decision is particularly noteworthy as the Supreme Court prepares to decide future cases involving the notwithstanding clause, including Quebec’s contentious Bill 21 case.[40] The question that remains is whether the Working Families ruling signals a broader pattern in how the Court will approach such challenges.
[1] Working Families Ontario v Ontario, 2021 ONSC 4076 at para 6 [Working Families 1].
[2] See e.g. Lisa Johnson, “Alberta Premier Smith Willing to Use the Notwithstanding Clause on Trans Health Bill”, CBC News (15 December 2024), online: <cbc.ca/news/canada/calgary/alberta-premier-smith-willing-to-use-the-notwithstanding-clause-on-trans-health-bill-1.7411263> [perma.cc/H2N7-KF3K]; Jason Warick, “Sask Premier to Use Notwithstanding Clause to Veto Judge Ruling on School Pronoun Policy”, CBC News (28 September 2023), online: <cbc.ca/news/canada/saskatchewan/judge-grants-injunction-school-pronoun-policy-1.6981406> [perma.cc/Y2NQ-A4A3].
[3] Canadian Charter of Rights and Freedoms, s 33, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[4] Working Families Coalition (Canada) Inc v Ontario (Attorney General), 2023 ONCA 139 at para 53 [Working Families 2023].
[5] Working Families Coalition (Canada) Inc v Ontario, 2021 ONSC 7697 at para 9 [Working Families 2021].
[6] Ontario (Attorney General) v Working Families Coalition (Canada) Inc, 2025 SCC 5 at paras 12, 16 [Working Families 2025].
[7] Ibid at para 60.
[8] Elections Finances Act, RSO 1990, c E.7, s 1 [EFA].
[9] Working Families 2025, supra note 6 at para 4.
[10] Ibid at para 5.
[11] Ibid at para 17.
[12] Ibid at para 19.
[13] Working Families 1, supra note 1.
[14] Ibid at paras 63–66.
[15] Ibid at paras 34–35, 63–76.
[16] Ibid at paras 90–92.
[17] Working Families 2023, supra note 4 at para 63.
[18] Working Families 2025, supra note 6 at para 38.
[19] Working Families 2023, supra note 4 at paras 64–65.
[20] Ibid at para 14.
[21] Working Families 2025, supra note 6 at para 12.
[22] Ibid at para 13.
[23] Ibid.
[24] Ibid.
[25] Ibid at para 30.
[26] Ibid at para 32.
[27] Ibid.
[28] Ibid at para 34.
[29] Ibid.
[30] Ibid at para 32.
[31] Ibid at para 36.
[32] Ibid at paras 43–44.
[33] Ibid at para 44.
[34] Ibid at para 48; EFA, supra note 8, s 1(1).
[35] Working Families 2025, supra note 6 at para 52.
[36] Ibid at para 50.
[37] Ibid at para 60.
[38] Ibid.
[39] Michael Karanicolas, “Subverting Democracy to Save Democracy: Canada’s Extra-Constitutional Approaches to Battling Fake News” (2019) 17:2 CJLT 200.
[40] Leave to appeal was granted for the Bill 21 case in January 2025: see English Montreal School Board et al v Attorney General of Quebec, et al, 2025 CanLII 2818 (SCC).
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