MacDonald v. MacNeil, (1990) 95 N.S.R.(2d) 137 (TD)

• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 01, 1990
• Jurisdiction: Nova Scotia
• Citations: (1990), 95 N.S.R.(2d) 137 (TD)

MacDonald v. MacNeil (1990), 95 N.S.R.(2d) 137 (TD);

    251 A.P.R. 137

MLB headnote and full text

In The Matter of the Controverted Elections Act, R.S.N.S. 1967, c. 55;

And In The Matter of the Election of a Member of the House of Assembly for the Electoral District of Cape Breton Centre, held on the 22nd day of August, 1989

("S". SN. No. 06111)

Indexed As: MacDonald v. MacNeil

Nova Scotia Supreme Court

Trial Division

Glube, C.J.T.D.

February 1, 1990.

Summary:

MacDonald and MacNeil were candidates in a provincial by-election. MacDonald won by two votes. An official recount ordered under s. 143(2) of the Elections Act resulted in MacNeil winning by three votes. MacDonald applied under the Controverted Elections Act for a declaration that the by-election was void.

The Nova Scotia Supreme Court, Trial Division, ordered a new by-election. The court determined that after counting the ballots that were properly marked there was a difference of two votes between MacDonald and MacNeil. However, two ineligible voters were allowed to vote and five votes at the special poll were improperly counted. The court stated that where there was only a two vote difference and it was impossible to determine whom the seven votes were for, the mistake affected the outcome of the election and a new by-election had to be ordered.

Elections - Topic 2044

Voters - Qualifications - Residence - The difference between the top two candidates in a provincial by-election was two votes - Two persons not ordinarily resident in the polling division on the date of the writ were permitted to vote - The Nova Scotia Supreme Court, Trial Division, stated that their two votes were improperly counted and, since there was only a difference of two votes, the mistake affected the result of the election and a new by-election had to be ordered - See paragraphs 171 to 181.

Elections - Topic 3246

Voting - Ballots - Preparation and marking of - Marking by deputy returning officer - [See Elections - Topic 3247 below].

Elections - Topic 3247

Voting - Ballots - Preparation and marking of - Removal of counterfoil - Sections 99(2) and 101(c) of the Elections Act required the deputy returning officer to initialize the back of the ballot papers and remove and destroy the counterfoils - Section 123 provided a procedure for "saving" the ballots where the counterfoil was still attached or where the required initials were missing - The Nova Scotia Supreme Court, Trial Division, held that the statutory requirements respecting initials and removal of counterfoils were directory, not mandatory - In a by-election there were 18 ballots with no initials, but the counterfoil removed; 19 ballots with initials, but the counterfoil still attached; and one ballot with no initials and the counterfoil still attached - The court held that s. 123 applied and all 38 ballots were valid - See paragraphs 129 to 139.

Elections - Topic 3284

Voting - Ballots - Marking of by voter - Validity of mark - Section 101(a) of the Elections Act provided that voters were to mark their vote with "a cross, an 'x', a check mark or a line" - Section 121(e) provided that a ballot containing writing or a mark by which the voter could be identified shall be rejected - The Nova Scotia Supreme Court, Trial Division, stated that considering the overall philosophy of elections, the determination of a valid mark on a ballot should be liberally interpreted - The court examined a number of ballots and held valid those which showed a clear intention to vote for a particular candidate and rejected those where the voter could be identified - See paragraphs 14 to 128.

Elections - Topic 4044

Recounts - When election void - Lack of majority - Following an official recount in a provincial by-election, there was a difference of two votes between the top two candidates - A total of seven votes were improperly counted - The Nova Scotia Supreme Court, Trial Division, held that a new by-election was necessary, because the mistake in counting the seven votes, where there was only a two vote differential, affected the outcome of the election.

Elections - Topic 7905

Controverted elections - Grounds for invalidity - Failure to obtain voter declarations - Section 138B(2) of the Elections Act provided that at a special poll voters were to sign a declaration on the "outer envelope" containing their name and address and an affirmation that they had not previously voted and would not attempt to do so again - The presiding officer was to place the ballot in an "inner envelope" and then place that envelope in the "outer envelope" and put it in the ballot box - Five voters at the special poll did not sign the required declaration - Section 138E(3)(c) provided that a ballot not containing the required declaration was "deemed" to be a rejected ballot - The Nova Scotia Supreme Court, Trial Division, held that s. 138E(3)(c) was mandatory, not directory - The court stated that where the five votes should not have been counted, and the vote differential between the top two candidates in the by-election was only two, the mistake affected the outcome of the election and a new by-election had to be ordered - See paragraphs 140 to 170.

Cases Noticed:

Re Durham Plebiscite, [1954] O.W.N. 141, refd to. [para. 42].

Firth et al. v. Nickerson et al. (1980), 23 A.R. 233 (N.W.T.C.A.), refd to. [para. 48].

Bezanson v. Tidman (1971), 4 N.S.R.(2d) 426, refd to. [para. 77].

Re South Oxford Provincial Election, 32 O.L.R. 1, refd to. [para. 77].

Blanchard v. Cole (1950), 25 M.P.R. 329, refd to. [para. 96].

Re North Huron Election, [1926] 1 D.L.R. 590, refd to. [para. 132].

Re Dewdney, [1924] 3 W.W.R. 947, refd to. [para. 135].

Re East Lambton (1914), 26 O.W.R. 760, refd to. [para. 135].

Re Moss and Blackburn (1986), 53 O.R.(2d) 429, refd to. [para. 135].

Re Muskoka (1902), 4 O.L.R. 253, refd to. [para. 135].

Re Brampton (1923), 24 O.W.N. 86, refd to. [para. 135].

Crilley v. Isley (1987), 77 A.R. 211; 50 Alta. L.R.(2d) 264, refd to. [para. 151].

Anderson v. Stewart and Diotte (1921), 62 D.L.R. 99 (N.B.C.A.), refd to. [para. 159].

R. v. Clay, [1945] 2 W.W.R. 193 (Alta. Dist. Ct.), refd to. [para. 160].

R. v. Verrette, [1978] 2 S.C.R. 838; 21 N.R. 571, refd to. [para. 162].

Morgan and others v. Simpson and another, [1974] 3 All E.R. 722, refd to. [para. 192].

Wright, Danson and Sanborn v. Koziak and Albrecht, [1981] 1 W.W.R. 449; 24 A.R. 255 (C.A.), refd to. [para. 193].

Statutes Noticed:

Controverted Elections Act, R.S.N.S. 1967, c. 55, sect. 2 [para. 10]; sect. 39 [para. 11].

Elections Act, R.S.N.S. 1967, c. 83, sect. 2(1) [para. 137]; sect. 25(1), sect. 27 [para. 171]; sect. 50, sect. 51, sect. 52 [para. 12]; sect. 99(2) [para. 129]; sect. 101(a) [para. 14]; sect. 101(c)(i), sect. 101(c)(ii) [para. 129]; sect. 104 [para. 21]; sect. 121 [para. 15]; sect. 123 [para. 130]; sect. 138A(1) [para. 50]; sect. 138B(2), sect. 138B(4) [para. 152]; sect. 138E(2) [para. 149]; sect. 138E(3) [para. 156]; sect. 138E(4) [para. 50]; sect. 143(2) [para. 11]; sect. 189 [paras. 9, 164].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed.) [para. 161].

Stroud's Judicial Dictionary (4th Ed.) [para. 161].

Counsel:

Milton J. Veniot, Q.C., and J. Michael Kuna, for the petitioner;

C. Peter McLellan and Scott C. Norton, for the respondent.

This application was heard on January 15 and 16, 1990, at Sydney, Nova Scotia, before Glube, C.J.T.D., of the Nova Scotia Supreme Court, Trial Division, who delivered the following judgment on February 1, 1990.