Martin v. Kelly et al., 2004 NLSCTD 208

• Judge: LeBlanc, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 08, 2004
• Jurisdiction: Newfoundland and Labrador
• Citations: 2004 NLSCTD 208;(2004), 242 Nfld. & P.E.I.R. 48 (NLTD)

Martin v. Kelly (2004), 242 Nfld. & P.E.I.R. 48 (NLTD);

  719 A.P.R. 48

MLB headnote and full text

Temp. Cite: [2004] Nfld. & P.E.I.R. TBEd. NO.020

Terry H. Martin (petitioner) v. Maurice Kelly, Amanda Genneaux, Colleen Spence, Olive Genneaux and Stella Mailman (respondents)

(200404T0262; 2004 NLSCTD 208)

Indexed As: Martin v. Kelly et al.

Newfoundland and Labrador Supreme Court

Trial Division

LeBlanc, J.

November 8, 2004.

Summary:

An unsuccessful candidate in a municipal by-election petitioned to have the by-election declared void.

The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the petition.

Elections - Topic 2044

Voters - Qualifications - Residence - Genneaux grew up in Port au Choix (the municipality) - She left to pursue post-secondary education, including schooling in St. John's - She worked in St. John's for six months following graduation - She returned to the municipality on April 22, 2004, where she remained resident and obtained employment - She voted in a May 13, 2004 municipal by-election - The Newfoundland and Labrador Supreme Court, Trial Division, held that Genneaux had not been eligible to vote because she had not been ordinarily resident in the municipality for 30 days immediately before the election (Municipal Elections Act, s. 22) - She had a settled intention to remain in St. John's following graduation - Although she continued to look for work "on the Northern Peninsula", she had no apparent intention to return to the municipality unless she secured employment there - While she might have been considered a resident of the municipality while attending school, her remaining and being employed in St. John's was sufficient to make her ordinarily resident in St. John's until she moved from there - The fact that she was looking for work "on the Northern Peninsula" after graduation did not satisfy the test for residency under s. 24 of the Act - See paragraphs 16 to 20.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - The petitioner challenged the results of a municipal by-election held under the Municipal Elections Act - The Newfoundland and Labrador Supreme Court, Trial Division, discussed the interpretation of election statutes - The court stated that "The presumption that the by-election was conducted fairly and properly can only be defeated by clear and cogent evidence. Reasonable compliance with the Act by the election officials is what must be considered, not a technical or formal approach. As well ... every reasonable effort should be made to enfranchise citizens and every care should be taken to guard against disenfranchisement." - See paragraphs 5 to 7.

Elections - Topic 7902

Controverted elections - Grounds for invalidity - Substantial and influential irregularities - Martin and two others were nominated as candidates for a municipal by-election - The returning officer complied with s. 19 of the Municipal Elections Act respecting the required notices - Subsequently, one of the other candidates withdrew - The Act was silent on what should occur where a candidate withdrew after nominations - The returning officer posted a new notice, but not within the time frame required by s. 19 - No notice was published in the newspaper as required by s. 19 due to lack of time - The returning officer also had the ballots changed to list only the remaining candidates' names - The Newfoundland and Labrador Supreme Court, Trial Division, held that the candidate's withdrawal and the returning officer's subsequent actions could be classified as an irregularity and perhaps an act of non-compliance with the Act - However, the court held that the by-election was conducted in accordance with the principles laid down in the Act and the irregularity or non-compliance did not affect the by-election's result - See paragraphs 22 to 31.

Elections - Topic 7906

Controverted elections - Grounds for invalidity - Defective notices - [See Elections - Topic 7902 ].

Elections - Topic 7915

Controverted elections - Grounds for invalidity - Curing of - [See Elections - Topic 7902 ].

Municipal Law - Topic 703

Council members - Election - Procedure - [See Elections - Topic 7902 ].

Cases Noticed:

Monaghan v. Joyce et al. (2004), 235 Nfld. & P.E.I.R. 130; 699 A.P.R. 130 (N.L.T.D.), refd to. [para. 5].

Monaghan v. Joyce et al. (2004), 235 Nfld. & P.E.I.R. 61; 699 A.P.R. 61 (N.L.T.D.), refd to. [para. 6].

Smith v. Levy (1985), 69 N.S.R.(2d) 124; 163 A.P.R. 124 (T.D.), refd to. [para. 19].

Thomson v. Minister of National Revenue, [1946] S.C.R. 209, refd to. [para. 19].

R. v. London Borough of Barnet; Ex parte Shah et al., [1983] 1 All E.R. 226, refd to. [para. 19].

Spek v. Provincial Director of the Ontario Legal Aid Plan (Lawson) (1984), 1 O.A.C. 15; 2 D.L.R.(4th) 672, refd to. [para. 19].

Hogan v. Careen and Hickey (1993), 116 Nfld. & P.E.I.R. 310; 363 A.P.R. 310 (Nfld. T.D.), refd to. [para. 26].

R. v. Clay, [1945] 4 D.L.R. 424 (Alta. Dist. Ct.), refd to. [para. 28].

Counsel:

Terry Martin, on his own behalf;

John Sweetland, for Mailman;

Maurice Kelly, Amanda Genneaux, Colleen Spence and Olive Genneaux, on their own behalf.

This petition was heard at Corner Brook, Newfoundland and Labrador, by LeBlanc, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following decision on November 8, 2004.