Frank et al. v. Canada (Attorney General), 2014 ONCA 485

• Judge: Sharpe, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 20, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 485;(2014), 323 O.A.C. 73 (CA)

Frank v. Can. (A.G.) (2014), 323 O.A.C. 73 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JL.001

Gillian Frank and Jamie Duong (responding party/applicants/respondents in appeal) v. The Attorney General of Canada (moving party/respondent/appellant in appeal)

(M43860; C58876; 2014 ONCA 485)

Indexed As: Frank et al. v. Canada (Attorney General)

Ontario Court of Appeal

Sharpe, J.A.

June 23, 2014.

Summary:

The applicants, both resident in the United States for more than five years, challenged the denial of the vote to non-resident Canadian citizens absent from Canada for more than five consecutive years.

The Ontario Superior Court allowed the application, holding that to the extent that the Canada Elections Act disenfranchised citizens absent from Canada for more than five years, it violated their democratic right to vote guaranteed by s. 3 of the Charter. The Attorney General of Canada appealed and moved for a stay of the judgment pending the appeal.

The Ontario Court of Appeal, per Sharpe, J.A., dismissed the motion.

Practice - Topic 8959

Appeals - Stay of proceedings pending appeal - Considerations - The applicants, both resident in the United States for more than five years, challenged the denial of the vote to non-resident Canadian citizens absent from Canada for more than five consecutive years - The application judge allowed the application, holding that to the extent that the Canada Elections Act disenfranchised citizens absent from Canada for more than five years, it violated their democratic right to vote guaranteed by s. 3 of the Charter - The Attorney General of Canada appealed and moved for a stay of the judgment pending the appeal - The Ontario Court of Appeal, per Sharpe, J.A., dismissed the motion - While there was an arguable appeal, both sides demonstrated a similar risk of irreparable harm and the balance of convenience weighed in favour of refusing the stay.

Cases Noticed:

Sauvé v. Canada (Chief Electoral Officer) et al., [2002] 3 S.C.R. 519; 294 N.R. 1; 2002 SCC 68, refd to. [para. 13].

Sauvé v. Canada (Chief Electoral Officer) et al., [1997] 3 F.C. 628; 132 F.T.R. 250 (T.D.), affd. [1997] N.R. Uned. 79; [1997] 3 F.C. 643 (F.C.A.), leave to appeal dismissed [1997] S.C.C.A. No. 264 (S.C.C.), refd to. [para. 14].

Bedford et al. v. Canada (Attorney General) et al. (2010), 271 O.A.C. 155; 2010 ONCA 814, refd to [para. 15].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1, refd to. [para. 17].

Counsel:

Peter Southey, Gail Sinclair, and Peter Hajecek, for the applicant, The Attorney General of Canada;

Shaun O'Brien and Amanda Darrach, for the respondents, Gillian Frank and Jamie Duong.

This motion was heard on June 20, 2014, in Chambers, by Sharpe, J.A., of the Ontario Court of Appeal, who delivered the following decision on June 23, 2014.