Inman v. Kennedy, (1997) 189 N.B.R.(2d) 1 (CA)

JudgeRice, Ryan and Turnbull, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateApril 30, 1997
JurisdictionNew Brunswick
Citations(1997), 189 N.B.R.(2d) 1 (CA)

Inman v. Kennedy (1997), 189 N.B.R.(2d) 1 (CA);

    189 R.N.-B.(2e) 1; 482 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Gregory Haiden Inman (appellant/petitioner) v. Dr. Larry R. Kennedy (respondent/respondent)

(188/96/CA)

Indexed As: Inman v. Kennedy

New Brunswick Court of Appeal

Rice, Ryan and Turnbull, JJ.A.

April 30, 1997.

Summary:

An unsuccessful candidate in a provincial election brought a petition under the Contro­verted Elections Act alleging, inter alia, voting irregularities. The successful candi­date had won by a seven vote margin.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported [1996] N.B.R.(2d) (Supp.) No. 31, set aside five votes as being by unqualified voters and declared that the successful candidate was duly elected and returned at the election. The unsuccessful candidate appealed.

The New Brunswick Court of Appeal allowed the appeal, ruled that the election was void and set it aside.

Elections - Topic 2043

Voters - Qualifications - Citizenship - [See second Elections - Topic 7904 ].

Elections - Topic 2044

Voters - Qualifications - Residence - [See first Elections - Topic 7904 ].

Elections - Topic 2066

Voters - Disqualifications - Mental in­firmity - An unsuccessful candidate in a provincial election alleged that an infirm person was permitted to vote contrary to s. 43(2)(f) of the Elections Act - The voter's brother testified that his sister (now ap­proximately 60 and a 25 year resident of a nursing home) was "very, very slow" and that he had been appointed her Committee 15 years earlier - The trial court noted that the brother had not apprised his sister's caregivers of the Committee order and that he brought it up now for political ends - The court considered the knowledge of the nursing home administrators on election day and held that the voter was qualified - The New Brunswick Court of Appeal allowed an appeal and struck her vote - See paragraphs 18 to 21.

Elections - Topic 3063

Voting and ballots - Place for voting - Voting at wrong poll - A candidate in a provincial election won by seven votes - The second place candidate brought a petition under the Controverted Elections Act alleging, inter alia, voting irregularities - Under s. 76(3) of the Elections Act, a qualified voter whose name is not on the official list of electors in a rural polling division can vote if (1) he is vouched for in person by an elector whose name is on the voting list for that polling division and (2) he takes an oath in prescribed form - One rural polling division did not have any electoral list - Nevertheless, 17 persons otherwise qualified to vote were allowed to vote after they vouched for themselves - The New Brunswick Court of Appeal allowed the second place candidate's ap­peal and struck the 17 ballots - See para­graphs 22 to 39 and 53.

Elections - Topic 7901

Controverted elections - Grounds for invalidity - General - Under s. 76(3) of the Elections Act, a qualified voter whose name is not on the official list of electors in a rural polling division can vote if (1) he is vouched for in person by an elector whose name is on the voting list for that polling division and (2) he takes an oath in prescribed form - One rural polling divi­sion did not have any electoral list - Nev­ertheless, 17 persons otherwise qualified to vote were allowed to vote after they vouched for themselves - In setting aside the ballots, the New Brunswick Court of Appeal stated that the Elections Act had to be strictly construed and that the strictness applied to the actions of poll officials as well as to candidates - See paragraph 28.

Elections - Topic 7904

Controverted elections - Grounds for invalidity - Unqualified electors - The second place candidate brought a petition under the Controverted Elections Act alleging voting irregularities - At trial, Fitzherbert testified that she was allowed to vote even though she resided outside the electoral district - The trial judge declined to consider her testimony even though the winning candidate did not object - The court held that, pursuant to s. 6(3) of the Controverted Elections Act, it would only consider evidence relating to persons named in the petition, the demand for particulars and the answers - However, the irregularity regarding Fitzherbert had not been discovered until shortly before the trial - The New Brunswick Court of Ap­peal held that Fitzherbert's testimony should have been considered and struck her ballot - See paragraphs 40 to 49.

Elections - Topic 7904

Controverted elections - Grounds for invalidity - Unqualified electors - The second place candidate brought a petition under the Controverted Elections Act alleging voting irregularities - At trial, Perley testified that she was allowed to vote even though she was not a Canadian - The trial judge declined to consider her testimony even though the winning candi­date did not object - The court held that, pursuant to s. 6(3) of the Controverted Elections Act, it would only consider evidence relating to persons named in the petition, the demand for particulars and the answers - However, the irregularity re­garding Perley had not been discovered until shortly before the trial - The New Bruns­wick Court of Appeal held that Perley's testimony should have been con­sidered and struck her ballot - See para­graphs 50 to 52.

Elections - Topic 7909

Controverted elections - Grounds for invalidity - Electors not swearing or sub­scribing required oath or affirmation - [See Elections - Topic 7901 ].

Elections - Topic 8141

Controverted elections - Evidence and proof - General - [See both Elections - Topic 7904 ].

Elections - Topic 8169

Controverted elections - Practice - Costs - A candidate in a provincial election won by seven votes - The second place candi­date brought a petition under the Contro­verted Elections Act alleging, inter alia, voting irregularities - The trial court re­duced the margin to two votes and awarded costs of $3,000 against the second place candidate - The New Brunswick Court of Appeal allowed the second place candidate's appeal and struck out 45 ballots - However, the court declined to award costs either at trial or on appeal - The court held that "[t]here were valid, even compelling, reasons to contest the close­ness of the election. Importantly, it had again exposed an insidious and unaccept­able continuation of inept administration of the election polls at several levels" - See paragraph 58.

Cases Noticed:

Recount By Keirstead (County Court Judge), Re (1963), 49 M.P.R. 63 (N.B.Q.B.), consd. [para. 3].

MacDonald v. MacNeil (1990), 95 N.S.R.(2d) 137; 251 A.P.R. 137 (T.D.), consd. [para. 22].

Anderson v. Stewart and Diotte (1921), 49 N.B.R. 25 (C.A.), consd. [para. 22].

Jenkins v. Brecken (1883), 7 S.C.R. 247, refd to. [para. 28].

Richard and Larocque v. Gauvin (1992), 124 N.B.R.(2d) 271; 312 A.P.R. 271 (T.D.), refd to. [para. 54].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 3 [para. 31].

Controverted Elections Act, R.S.N.B. 1973, c. C-21, sect. 6(3) [para. 44]; sect. 14, sect. 17 [para. 15]; sect. 47, sect. 51 [para. 14].

Elections Act, R.S.N.B. 1973, c. E-3, sect. 43(2)(f) [para. 20]; sect. 76(3) [para. 31].

Authors and Works Noticed:

Boyer, J. Patrick, Election Law in Canada (1987), vol. 2, pp. 1126 to 1136 [para. 5].

Garner, John, The Franchise and Politics in British North America 1755-1867 (1969), c. 5, pp. 60, 61 [para. 6].

Counsel:

Peter E. Crocco, for the appellant;

R. Leslie Jackson, Q.C., for the respon­dent.

This appeal was heard on October 22, 1996, before Rice, Ryan and Turnbull, JJ.A., of the New Brunswick Court of Appeal.

On April 30, 1997, judgment was delivered for the Court of Appeal and the following opinions were filed:

Ryan, J.A. (Turnbull, J.A., concurring) - see paragraphs 1 to 59;

Rice, J.A. - see paragraphs 60 to 65.

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1 practice notes
  • Ogden v. Lowe, 2019 NBQB 184
    • Canada
    • Court of Queen's Bench of New Brunswick (Canada)
    • August 23, 2019
    ...case from Victoria-Tobique under the heading "Historical Perspective of Controverted Elections in New Brunswick": Inman v. Kennedy (1995), 189 N.B.R.(2d) 1, [1997] N.B.J. No. 198 (N.B.C.A.), at para. "[4] New Brunswick became a distinct colony in 1784 when it was formed from part of the col......
1 cases
  • Ogden v. Lowe, 2019 NBQB 184
    • Canada
    • Court of Queen's Bench of New Brunswick (Canada)
    • August 23, 2019
    ...case from Victoria-Tobique under the heading "Historical Perspective of Controverted Elections in New Brunswick": Inman v. Kennedy (1995), 189 N.B.R.(2d) 1, [1997] N.B.J. No. 198 (N.B.C.A.), at para. "[4] New Brunswick became a distinct colony in 1784 when it was formed from part of the col......

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