EDITOR’S NOTE: This article originally appeared on The Trillium, a Village Media website devoted exclusively to covering provincial politics at Queen’s Park.
The Supreme Court of Canada has struck down a Ford government law that restricted political advertising by third parties, such as unions, in the year ahead of a scheduled election campaign.
The top court ruled in a 5-4 decision that the law allowed for political parties’ ads to “drown out” those of third-party groups, infringing on citizens' right to meaningfully participate in the democratic process.
“The information available to voters in Ontario in the year before an election must include the interests, voices and views of different citizens and parties,” reads the majority decision written by Justice Andromache Karakatsanis.
Because the law restricted third-party spending ahead of an election much more severely than that of political parties themselves, it created 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,” she wrote.
It’s a victory for a group of Ontario’s unions in a battle they have been waging against the province for years.
In past elections, the unions that brought the case — teachers’ unions and the union-funded Working Families Coalition — were top third-party advertising spenders, producing hard-hitting attack ads targeting Progressive Conservative leaders.
While the unions maintain that the Ford government passed the tough third-party ads law to specifically target them and silence their criticism of Conservatives, the political landscape has changed since then — some of the building trades unions that had paid for attack ads against previous Progressive Conservative leaders through the Working Families Coalition endorsed Doug Ford’s PCs in the last election.
Two of the teachers’ unions — the Elementary Teachers' Federation of Ontario and the Ontario Secondary School Teachers' Federation — have carried on with negative campaigns against the PCs. The third, the Ontario English Catholic Teachers' Association, did not register as a third-party advertiser in the most recent election.
In the court system and in the legislature, the Ford government has said that the law was not about muzzling unions but about protecting Ontario politics from the rise of American-style "dark money"-funded political action committees.
The top court did not address this argument.
The law in question is part of Ontario’s Election Finances Act that restricts the amount third parties — any people or groups that aren’t political parties, candidates or riding associations — can spend on political advertising in the year before the fixed date of a provincial campaign.
Political advertising is defined as advertising that promotes or opposes a political party or candidate, as well as advertising on issues that political parties or candidates have taken a position on.
In 2025, that kind of spending would have been limited to $30,168 in any one electoral district and $754,200 in total during the 12-month period before a scheduled election campaign is to begin. However, because Premier Ford triggered the election more than a year early, the limits did not apply.
Nor did the less severe restrictions on political parties themselves. By way of comparison, their advertising would only have been capped in the six-month period right before the election period, at more than $1.2 million.
This was not challenged in court, nor were the limits on political party and third-party spending during the four-week election campaign.
Now, if the Ford government wants to reinstate some kind of restriction on third-party advertising before scheduled election campaigns, it will have to rewrite that section of the law and pass it through the legislature.
This was the second Charter violation identified by the courts concerning the same part of the election law.
In June 2021, the Ontario Superior Court found it violated the Charter right to free expression. Rather than appealing that decision, the government passed the law a second time with the Charter’s notwithstanding clause to override that right and keep the law in place in the lead-up to the 2022 election.
The Charter does not allow the notwithstanding clause to be used to override a violation of the democratic right at issue in the more recent challenge.
The decision was split, with two groups of two judges dissenting from the majority for different reasons.
More to come.