Klevering v. Canada (Attorney General) et al., (2015) 474 N.R. 278 (FCA)

• Judge: Ryer, Webb and Rennie, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 15, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 474 N.R. 278 (FCA);2015 FCA 152

Klevering v. Can. (A.G.) (2015), 474 N.R. 278 (FCA)

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[French language version follows English language version]

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

Temp. Cite: [2015] N.R. TBEd. JL.005

Brother Kornelis Klevering (appellant) v. Attorney General of Canada, Marc Mayrand (Chief Electoral Officer), Ann Budra (returning officer for the Riding of Guelph), Frank Valeriote, Marty Burke, Bobbi Stewart, John Lawson, Philip Bender, Karen Levenson, Drew Garvie (respondents)

(A-232-14; 2015 FCA 152; 2015 CAF 152)

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

Federal Court of Appeal

Ryer, Webb and Rennie, JJ.A.

June 23, 2015.

Summary:

Klevering brought an application contesting the results of a federal election for the riding of Guelph, asserting that there were numerous automated telephone calls that purported to be from Elections Canada and which misdirected voters to non-existing polling stations.

A Prothonotary of the Federal Court dismissed the application where it was plain and obvious that it was a foregone conclusion that Klevering could not establish, on the record that he had filed, that the voter suppression efforts had an impact on the election results in Guelph or on the integrity of the election such that there was even the slightest chance that the results would be annulled and the electorate in Guelph put through a by-election. The Prothonotary also found that Klevering had not filed his application within the 30 days prescribed by s. 527 of the Canada Elections Act. Klevering appealed. One of the respondents (Valeriote) moved to dismiss the appeal.

The Federal Court allowed the motion and dismissed the appeal on the basis that the appeal had been filed well out of time. Klevering appealed.

The Federal Court of Appeal stated that Klevering had obtained a 10 day extension to appeal and the appeal was not out of time as it had been filed within the extended appeal period. The court reconsidered Valeriote's motion anew, dismissed the appeal and quashed Klevering's application on the basis that it had not been brought within the 30 day limitation period.

Elections - Topic 8165

Controverted elections - Practice - Limitation period - On June 26, 2012, Klevering brought an application contesting the results of a federal election for the riding of Guelph, asserting that there were numerous automated telephone calls misdirecting voters to non-existing polling stations - A Prothonotary dismissed the application, holding that, inter alia, Klevering had not filed his application within the 30 days prescribed by s. 527 of the Canada Elections Act - Section 527 provided that the application had to be filed within 30 days after the later of the "(a) the day on which the result of the contested election is published in the Canada Gazette, and (b) the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice." - The Federal Court of Appeal dismissed Klevering's appeal and quashed his application - Klevering should have known about the activity upon which his application was based when (if not earlier) the Chief Electoral Officer testified on March 29, 2012, as his testimony would have been in the public domain - While Klevering's being on a remote island with limited access to information affected the date on which he actually knew, it did not affect the date that he should have known about the alleged activity - Otherwise, the limitation period could be extended indefinitely - The limitation period ran from March 29, 2012, and Klevering's application was outside the prescribed period.

Cases Noticed:

McEwing et al. v. Canada (Attorney General) et al. (2013), 433 F.T.R. 59; 2013 FC 525, refd to. [para. 14].

Statutes Noticed:

Canada Elections Act, S.C. 2000, c. 9, sect. 527 [para. 11].

Counsel:

The appellant was self-represented;

Guy Regimbald, for the respondent, Frank Valeriote.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, the Attorney General of Canada;

Gowling Lafleur Henderson LLP, Ottawa, Ontario, for the respondent, Frank Valeriote;

Borden Ladner Gervais LLP, Toronto, Ontario, for the respondent, Marc Mayrand.

This appeal was heard at Toronto, Ontario, on June 15, 2015, by Ryer, Webb and Rennie, JJ.A., of the Federal Court of Appeal. Webb, J.A., delivered the following reasons for judgment for the court on June 23, 2015.