MacNeil, Re, (1990) 98 N.S.R.(2d) 6 (TD)

• Judge: Richard, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: Friday March 02, 1990
• Jurisdiction: Nova Scotia
• Citations: (1990), 98 N.S.R.(2d) 6 (TD)

MacNeil, Re (1990), 98 N.S.R.(2d) 6 (TD);

    263 A.P.R. 6

MLB headnote and full text

In The Matter Of: The Controverted Elections Act, R.S.N.S. 1967, c. 55

In The Matter Of: An Application by Russell MacNeil, and Vincent J. MacLean for an Order in the Nature of a Declaration and an Order in the nature of mandamus

Indexed As: MacNeil, Re

Nova Scotia Supreme Court

Trial Division

Richard, J.

March 2, 1990.

Summary:

The unsuccessful candidate on an official recount in a provincial by-election applied under the Controverted Elections Act for a declaration that the by-election was void.

The Nova Scotia Supreme Court, Trial Division, in a decision reported 95 N.S.R.(2d) 137; 251 A.P.R. 137, ordered a new by-election.

The successful candidate applied for mandamus and a declaration requiring the Provincial Secretary to give the necessary directions for the new by-election under ss. 41(1) and 42(1) of the Controverted Elections Act.

The Nova Scotia Supreme Court, Trial Division, dismissed the application.

Elections - Topic 1

General principles of elections - A by-election was declared void under the Controverted Elections Act - The Provincial Secretary notified the Governor-in-Council under s. 43 of the Act - The Nova Scotia Supreme Court, Trial Division, dismissed an application for an order requiring the Provincial Secretary "to give the necessary directions for the issuing of a writ" - The issuing of a writ was the prerogative of the Premier - The court would not interfere in the political process or usurp the function of another branch of government (executive or legislative) absent clear and unequivocal direction in the legislation.

Cases Noticed:

Temple v. Bulmer, [1943] 3 D.L.R. 649, refd to. [para. 7].

Statutes Noticed:

Controverted Elections Act, R.S.N.S. 1967, c. 5, sect. 28 [para. 11]; sect. 41(1), sect. 42(1) [para. 2]; sect. 43(1) [paras. 3, 4]; sect. 70 [para. 12].

Counsel:

Peter McLellan and Scott Gillis, for the applicant;

Reinhold M. Endres, for the respondent.

This application was heard before Richard, J., of the Nova Scotia Supreme Court, Trial Division, who delivered orally the following judgment on March 2, 1990.