Alberta Prosperity Project Faces Court Date over Separation Referendum Role

The Alberta Prosperity Project has been under investigation by Alberta’s election commissioner since mid-January for allegedly failing to register as a third-party advertiser in the ongoing independence referendum petition campaign.

Court documents obtained by The Tyee show lawyers for Election Commissioner Paula Hale are scheduled to be in an Edmonton court on Monday in an attempt to gain an injunction against the Alberta Prosperity Project, or APP.

The injunction seeks to force the APP to register as a third-party advertiser and comply with an order to essentially show where its funding is coming from and how it is being spent.

The order also asks a judge to stop the APP from conducting any more advertising until it registers.

The court documents show the APP has defied two notices from an investigator to produce financial and other records related to its alleged advertising of the referendum petition.

The advertising is alleged to have occurred on social media, including APP’s own web page where it solicits donations, on a billboard on the main highway between Edmonton and Calgary and through dozens of town hall meetings allegedly organized by the APP.

In a letter in response to the second notice from the investigator to produce specific records, APP lawyer Jeffrey Rath accused the commission of making “baseless accusations” and of bias, procedural unfairness and incompetence.

In a March 12 letter in response, the commissioner’s lawyer, Joseph Redman, tells Rath that “compliance with the notices to produce records is not an optional activity” and that failure to comply “can have significant consequences.”

“A notice to produce issued by the election commissioner is not an invitation for discussion; it is a legal demand,” Redman wrote.

Redman also rejected Rath’s claims of bias.

“Such attacks are not conducive to moving this matter forward to completion,” Redman states, adding that the commissioner “has met or exceeded her duties during this investigation.”

Court documents show Athabasca Chipewyan Chief Allan Adam first filed a complaint on Dec. 19 to Chief Electoral Officer Gordon McClure, who in turn passed it on to Hale.

On Jan. 12, after receiving more submissions from Adam’s lawyer, Hale approved an investigation into whether the APP should be a registered third party.

Two requests for records were sent to Rath, who was acting for Mitch Sylvestre, the APP’s CEO and the main proponent of the so-called Stay Free Alberta petition. Also named was Dennis Modry, the APP co-chair.

The threshold requiring registration is low. If advertising exceeds $1,000, the organization must register as a third-party advertiser.

In an affidavit, investigator Ryan Tebb said Sylvestre and Modry were asked for records of any online contributions received through the APP portal, on the NationBuilder platform, between Jan. 2 and 31.

The Stay Free Alberta petition was issued Jan. 2 and started collecting signatures the following day. Under provincial law, the campaign needs to collect about 178,000 signatures to trigger a referendum on Alberta separating from Canada. Sylvestre has said they have already surpassed that figure.

The two men were also asked for copies of invoices or receipts related to town hall meetings hosted by the APP between Jan. 2 and 31. This included venue rental costs or the fair-market value costs that may have been donated in kind, regardless of the amount, including food and beverages, and any cash contributions received. The APP has held dozens of these town halls across the province.

The investigator’s affidavit describes a billboard he viewed and photographed on Highway 2 near the Wetaskiwin exit emblazoned with the slogan “Say Yes to an Independent Alberta.”

The billboard was sponsored by “Albertaprosperitynow.com” and the website is branded as “Alberta Prosperity Project. The Referendum Movement for a Sovereign Alberta.”

The investigator said the billboard costs about $700 a month and between 30,480 and 36,000 cars passed it each day.

A second revised request to the Alberta Prosperity Project asked for “copies of all invoices/receipts for any means of transmission of advertising that promotes or opposes ‘A Referendum Relating to Alberta Independence’ or the legislation, policy or constitutional question proposed by the petition, including but not limited to expenses related to billboards, print, television and radio advertising and expenses related to ‘pushed’ social media or other advertising on Meta, YouTube, Bluesky, X or other internet platforms.”

For the production deadlines of Feb. 17 and March 12 set by the election commissioner, Rath, as APP legal counsel, responded on those exact dates but provided no records.

Rath claimed the APP was not a legal entity and therefore couldn’t register as a third party under either the provincial Citizen Initiative Act or the Citizen Initiative Regulation.

“Alberta Prosperity Project is a loose affiliation of individuals, NOT a legal entity having any legal personality in any sense of the word,” Rath wrote (his emphasis).

“As such, Alberta Prosperity Project cannot sue or be sued nor can Alberta Prosperity Project be found to be in breach of any registration requirement under the relevant statutes.”

Rath claimed the titles given to Sylvestre and Modry were “merely honorary and have no legal significance,” and they were “nothing more than individuals” and the APP is not a registered corporation with officers and directors.

“That said, Alberta Prosperity Project individuals have all been advised by Stay Free Alberta and Mitch Sylvestre that Alberta Prosperity Project is to have no role in the petition campaign.”

The APP, Rath said, had not spent $1,000 for advertising and the “Alberta Prosperity Project has not colluded with Mr. Sylvestre to circumvent any financial limits by colluding as a Third-Party Advertiser.”

“To the best of our knowledge,” Rath said, any individuals formerly associated with APP have been told they are on “hiatus.” He said any individuals including Dennis Modry “are undertaking activities on their own behalf and not on behalf of Mr. Sylvestre, the petition proponent.”

Rath claimed the APP does not have a NationBuilder account because it is not a legal entity. He said there were no invoices because no expenses were paid to the APP on behalf of Mr. Sylvestre. And he said “there are no other relevant documents because APP did not hold any events during Jan. 2 to 26.”

“Finally, with regards to any means of advertising for a referendum of independence, no such invoice or receipt exists as no such expenditures were made by the Alberta Prosperity Project.”

In response to Rath’s letter, Hale, the election commissioner, pointed out that the Alberta Prosperity Prospect Society incorporated under the provincial Societies Act on Jan. 26, with Sylvestre as the chair and Rath as a director.

The APP society is “the governing body controlling and providing direction to the Alberta Prosperity Project, a branch project of the Society.”

“As a result, it appears that APP is in fact a corporate entity, notwithstanding your statement to the contrary,” Hale wrote.

The description of the APP as simply a loose affiliation of individuals still meets the definition of a group under the Citizen Initiative Act and it should be registered, she said.

As for the claim that the APP does not have a NationBuilder account, Hale pointed out that APP’s “public-facing website continues to identify that its registration and donation pages are ‘created by NationBuilder.’”

The claim that the APP has incurred no costs for advertising is belied by Meta advertising, “which was explicitly sponsored by the Alberta Prosperity Project,” and the Highway 2 billboard, which was clearly labelled as being sponsored by the APP.

And Rath’s claim that the APP was on “hiatus” is contradicted by a Jan. 3 town hall in which the host and others introduced themselves as acting on behalf of the APP.

In a five-page letter of response on March 12, Rath again did not produce any records and contested every main point made by Hale.

“Our clients remain willing to cooperate with any lawful investigation conducted within the framework of the [Citizen Initiative Act],” Rath wrote. But in order to respond appropriately, Rath asked Elections Alberta to clarify six issues, including providing specific evidence that supported an investigation and any ”specific document, request, or conduct that Elections Alberta believes constitutes obstruction” under the act.

“Our objective remains to ensure that all parties are working from a clear and accurate understanding of the facts and the statutory framework governing the initiative process,” Rath wrote.

Redman, the election commissioner’s lawyer, responded to Rath’s March 12 letter.

Referring to Rath’s request for clarification on six points, Redman reminded Rath that the “election commissioner’s investigative process is not dictated by the individuals under investigation.

“The election commissioner has no obligation to justify her investigation to your satisfaction.”

Redman then told Rath his client is still required to produce the information requested.

The hearing Monday will determine if the Alberta Prosperity Project is required to comply with the notices of production from the election commissioner.

The outcome may play a role in a separate civil case related to the independence referendum petition.

Earlier this month, an Edmonton Court of King’s Bench judge issued an order that temporarily blocked Alberta’s chief electoral officer from certifying Sylvestre’s petition on provincial independence.

The judge issued the stay order on the certification until she makes a ruling on the case brought forward by First Nations. But the signature gathering has been allowed to continue.

During a three-day hearing, the First Nations asked the judge to review a Jan. 2 decision by the chief electoral officer to approve the independence petition.

The First Nations argued that independence is impossible without their consent because it would breach their treaty rights. They also expressed concern about the potential for foreign interference in the petition process.

Rath has repeatedly boasted about several meetings between the APP and U.S. State Department officials, some directly connected to the White House, in Washington, D.C.

At one point in the hearing, Court of King’s Bench Justice Shaina Leonard directly asked Redman, the Elections Alberta lawyer, if the APP had disclosed its financial records related to its independence activities.

“I don’t think I could say that we know nothing,” Redman told the court. “I think that there are records that have been requested that have not been provided.”

If you have any information for this story, or information for another story, please contact Charles Rusnell in confidence via email.