* As posted on http://www.nationalpost.com

Lawsuit to argue merger violates Tory constitution

John A. Macdonald's great-grandniece opposes joining Alliance: Orchard
cites labour law

Saturday, November 22, 2003
Tom Blackwell
National Post
CREDIT: Peter J. Thompson, National Post

David Orchard was accompanied by Marie Gatley, 83, the great-grandniece of
Conservative prime minister Sir John A. Macdonald, at a news conference
yesterday about a lawsuit that will attempt to prevent the merger of the
Progressive Conservative and Canadian Alliance parties.

Dissident members of the Conservative party said yesterday they will rely
in part on an obscure bit of labour law as they ask the courts to rapidly
quash a proposed merger between the Tory and Canadian Alliance parties. Led
by David Orchard, a former leadership candidate, 24 Conservatives unveiled
a court case against their own leader, Peter MacKay, designed to stop the
"betrayal" of those pushing for amalgamation.

Among the plaintiffs is Marie Gatley, the elderly great-grandniece of John
A. Macdonald, who suggested her ancestor would have objected to the
marriage of parties. The group accused Mr. MacKay, the Tory leader, and
others of effectively scrapping the party's constitution -- not to mention
a deal signed with Mr. Orchard on the leadership convention floor -- to
strike a merger agreement with Stephen Harper, the Alliance leader.

"It's a coup. The only thing that's missing is the sunglasses,"
said Sean Dewart, the Toronto lawyer handling the case. "[The Tory
leader] got played like a piano by Mr. Harper."

But Mr. MacKay, a former Crown attorney in his native Nova Scotia, said he
is not worried about the prospect of a lawsuit. "We've examined this
issue and we feel this is constitutional," he said. "We're very
confident that we're going to be able to make our case. I don't think any
court in the land would grant an injunction to prevent this from
happening."

Conservative ridings across Canada are electing delegates to attend a
meeting on Dec. 6. The agreement passes if two-thirds of delegates vote in
favour of it. The Orchard group, making its first court appearance on
Wednesday, will ask the judge for declarations that the merger contravenes
the party's constitution and that the results of the ratification vote will
be null and void. The lawyers will not seek an injunction, but will ask the
court to fast track the case and bring down a decision before Dec. 6, Mr.
Dewart said.

Their argument is, in part, that the constitution of the Tory party makes
no provision for a merger. And case law over the past 30 years makes it
clear that "voluntary associations" such as political parties
must have unanimous consent of their members to merge with other
organizations if their constitutions do not address the issue, the lawyer
said.

He cited Astgen v. Smith, a landmark 1970 case from the Ontario Court of
Appeal that quashed a proposed merger in Canada between the United
Steelworkers of America and the International Union of Mine, Mill and
Smelter Workers, at the request of a local of the mine union. The merger
had been approved by a 2-1 majority of Mine Mill members in a referendum.
But the mine union's constitution did not set out a procedure for
amalgamation, the court said. As a result, "a referendum vote which is
not unanimous would not be effective to authorize the merger."

Mr. Orchard said yesterday the method of ratifying the deal is undemocratic
because it involves a simple majority of members in each riding electing a
slate of six delegates, who vote either Yes or No. Members should at least
be able to choose a mixed slate, based on the breakdown of the vote, or get
a chance to vote in a referendum, he said. But William Stairs, a spokesman
for Mr. MacKay, said the delegate system has been used for years in
leadership conventions and Mr. Orchard has never previously objected.
"There are 60,000 people who are members and Mr. Orchard seems to want
to stop them from voting. We think they should be able to say yes or
no."


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