The Conservative Party is attempting to use the courts to subvert the will of Parliament on campaign financing, Elections Canada will argue Thursday in the Court of Appeal for Ontario.
The appeal in a Toronto courtroom by the independent elections watchdog signals an odd reversal of the old conservative complaint about judge-made law.
But it is perhaps befitting of a topsy-turvy court case in which the Conservative Party of Canada fought and won the right to return almost $600,000 in rebates to the federal treasury.
The legal appeal is one of two under way that pit the Tories against Elections Canada over interpretations of election-financing laws.
"There's a lot of gaming that goes on with the rules, and that's clearly what's happening," Robert MacDermid, an expert in political financing who teaches at Toronto's York University, said in an interview.
"This is a rather rare case where the (governing) party is not in the majority, so it has to play the game through the courts or through attacking Elections Canada. If it was a majority government, quite frankly it would just change the rules."
The rebate case revolves around the refunds that parties receive from Elections Canada for half of all campaign expenses, coupled with an additional Canada Revenue Agency rebate of half their GST payments.
The Tories successfully argued this amounts to "double-dipping," and are prepared to repay $591,000 in rebates from the 2004 and 2006 elections.
It's not simple altruism for the cash-flush Conservatives.
The Ontario Superior Court judgment in January appears to leave the much poorer Liberal Party on the hook for a similar repayment, while also effectively raising campaign-spending limits in the future - which helps the party with the deepest pockets.
Elections Canada's written appeal contends that Justice Herman Wilton-Siegel erred in applying general accounting principles to party financial reports "without a full understanding of the effects of this decision on the political financing system."
The judge "erred in using this provision to negate deliberate choices made by Parliament."
And language in the Excise Tax Act, the elections watchdog argues, makes it clear that double dipping is not forbidden because it "contemplates and reconciles such multiple payments." Changing the act is "something for Parliament to decide, not the (chief electoral officer) or the court."
Judge Wilton-Siegel's ruling acknowledged that the judgment's net effect will be to increase party spending limits "by an amount equal to the GST rebates."
As a result, claims Elections Canada, "competing political parties would effectively have different spending caps.... It is submitted that this would undermine the intent of Parliament."
For its part, the Conservative Party of Canada argues that Chief Electoral Officer Marc Mayrand is promoting "a strained interpretation of the Canada Elections Act that would permit registered political parties to 'double dip' from public funds and would require them to maintain two sets of records that report the same expenses in different ways."
The act, says the party's appeal factum, "should not be interpreted in a way that would permit registered parties to be unjustly enriched at the expense of the Canadian public."
Double-dipping, says the factum, "should not be permitted and cannot be taken to have been Parliament's intent."
It is not the first time the Conservatives have attempted to change or clarify election financing laws through the courts, including the so called in-and-out financing scheme.
The Tories won that long-running case in January as well, but the party is now cross-appealing the ruling, along with Elections Canada. It turns out the judgment means that up to 10 Conservative candidates, including three cabinet ministers, exceeded their campaign spending limits in 2006.
Mr. MacDermid, who has studied campaign financing at the municipal, provincial and federal level, says parties of all partisan stripes "have always gamed the rules."
"And the Conservatives have been particularly astute about wringing advantages for themselves out of the campaign-finance law."
The GST-rebate case works to their advantage, Mr. MacDermid said, "through being able to spend more or handicapping the other parties."
"They know they're playing from a position of great strength because they have been so successful at raising money in comparison to the other parties recently. They have a huge edge."
The Conservative Fund Canada was awarded $45,000 in legal costs from Elections Canada in its first court victory and is also seeking "partial indemnity" costs in the appeal.
Elections Canada says it has spent $84,486 to date on the court case - not including the $45,000 owed the Tories, which is also under appeal.