McEwing et al. v. Canada (Attorney General) et al., (2013) 433 F.T.R. 59 (FC)

JudgeMosley, J.
CourtFederal Court (Canada)
Case DateMay 23, 2013
JurisdictionCanada (Federal)
Citations(2013), 433 F.T.R. 59 (FC);2013 FC 525

McEwing v. Can. (A.G.) (2013), 433 F.T.R. 59 (FC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2013] F.T.R. TBEd. JN.002

Sandra McEwing and Bill Kerr (applicants) v. Attorney General of Canada, Marc Mayrand (The Chief Electoral Officer), Johanna Gail Denesiuk (Returning Officer for Winnipeg South Centre), Joyce Bateman, Anita Neville, Dennis Lewycky, Joshua McNeil, Lyndon B. Froese and Matt Henderson (respondents)

(T-619-12)

Kay Burkhart (applicant) v. Attorney General of Canada, Marc Mayrand (The Chief Electoral Officer), Dianne Celestine Zimmerman (Returning Officer for Saskatoon-Rosetown-Biggar), Kelly Block, Lee Reaney, Vicki Strelioff and Nettie Wiebe (respondents)

(T-620-12)

Jeff Reid (applicant) v. Attorney General of Canada, Marc Mayrand (The Chief Electoral Officer), Laurel Dupont (Returning Officer for Elmwood-Transcona), Jim Maloway, Ilona Niemczyk, Lawrence Toet and Ellen Young (respondents)

(T-621-12)

Ken Ferance and Peggy Walsh Craig (applicants) v. Attorney General of Canada, Marc Mayrand (The Chief Electoral Officer), Dianne James Mallory (Returning Officer for Nipissing-Timiskaming), Jay Aspin, Scott Edward Daley, Rona Eckert and Anthony Rota (respondents)

(T-633-12)

Yvonne Kafka (applicant) v. Attorney General of Canada, Marc Mayrand (The Chief Electoral Officer), Alexander Gordon (Returning Officer for Vancouver Island North), John Duncan, Mike Holland, Ronna-Rae Leonard, Sue Moen, Frank Martin and Jason Draper (respondents)

(T-634-12)

Thomas John Parlee (applicant) v. Attorney General of Canada, Marc Mayrand (The Chief Electoral Officer), Susan J. Edelman (Returning Officer for Yukon), Ryan Leef, Larry Bagnell, Kevin Barr and John Streicker (respondents)

(T-635-12; 2013 FC 525; 2013 CF 525)

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

Federal Court

Mosley, J.

May 23, 2013.

Summary:

The applicants, eight voters residing in six electoral districts, brought applications to annul the results of the 2011 General Election in their ridings because of efforts to suppress votes during that election. Those efforts involved recorded telephone calls purporting to be from Elections Canada. In the "robocalls", voters were told that the locations of polling stations in their districts had been moved from the places specified in the printed information provided by Elections Canada prior to the day of the vote. The information was false and Elections Canada neither made nor authorized those calls. The central issue was the effect the calls had, if any, on the election results in the six ridings. The respondent MPs moved to strike the applications as frivolous and vexatious, and not brought within the time required under s. 527 of the Canada Elections Act.

A Master of the Federal Court, in a decision reported at (2012), 415 F.T.R. 286, dismissed the motion to strike on all grounds, save that of timeliness. In addition to the substantive merits of the applications and the procedural issue relating to timeliness, two of the motions brought by the respondents during the interlocutory proceedings remained to be determined, including a maintenance and champerty motion.

The Federal Court dismissed the applications. The court found that electoral fraud occurred during the 41st General Election. However, the court was not satisfied that it had been established that the fraud affected the outcomes in the subject ridings, and declined to exercise its discretion to annul the results in those districts. The applicants were awarded costs for the motions in which they were successful, on a solicitor and client basis. The court was "inclined" to award the respondent Members of Parliament "a modest fixed amount" for the costs of the hearing, absent an agreement as to the amount.

Barristers and Solicitors - Topic 801

Duty to court - Counsel as a witness - General - The applicants, eight voters residing in six electoral districts, brought applications to annul the results of the 2011 General Election in their ridings because of efforts to suppress votes - Those efforts involved recorded telephone calls purporting to be from Elections Canada - The respondent MPs' motion alleged that there was maintenance and champerty by the Council of Canadians - In support of the motion, the respondent MPs filed the affidavit of a lawyer with the firm that was counsel to the respondent MPs - The applicants impugned the lawyer's affidavit on the ground that it was contrary to rule 82 of the Federal Courts Rules (counsel shall not both depose to an affidavit and present argument based on that affidavit) - The Federal Court held that the content of the affidavit, other than as a vehicle to introduce the exhibits, was improper - The affidavit went directly to the substance of the motion and to the merits of the applications - In the result, the court gave it no weight or probative value - See paragraphs 101 to 107.

Barristers and Solicitors - Topic 892

Duty to court - Presentation of evidence - Duty respecting affidavit evidence of counsel - [See Barristers and Solicitors - Topic 801 ].

Civil Rights - Topic 121

Voting and other democratic rights - Right to vote - General - [See Elections - Topic 16 ].

Elections - Topic 16

General - Purpose of elections legislation - These proceedings were brought by applications under the Canada Elections Act - The Federal Court, in considering the relevant provisions of the 2000 Act, stated that s. 3 of the Charter and the provisions of the Canada Elections Act "have the clear and historic purposes of enfranchising Canadian citizens and of protecting the integrity of our electoral process." - See paragraphs 30 to 34.

Elections - Topic 3066

Voting and ballots - Place for voting - Location of - The Federal Court, in considering the scheme of the Canada Elections Act, stated that "[t]he selection of the location of each polling station is among the responsibilities of the returning officers for each district with the approval of the Chief Electoral Officer. That would include any relocation of a polling station. The scheme of the legislation suggests that any notification to electors of such a change would also be the responsibility of the returning officers and Chief Electoral Officer. Section 281 prohibits anyone from interfering with an elector when marking a ballot, from making false statements or from preventing an elector from voting. Interference with an elector would include the type of conduct complained of in this proceeding; that is, deliberately providing false information about a change in the location of a polling station." - See paragraphs 38 and 39.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - The Federal Court, in considering the statutory framework of the Canada Elections Act, stated that "[p]rotecting the integrity of the democratic process is a central purpose of the Act in order to ensure the constitutional right to vote and the enfranchising purpose of the statute. In the context of s. 524, 'fraud', 'corrupt practices' or 'illegal practices' should therefore be defined in their ordinary and grammatical sense employing the dictionary definitions of the words to serve that purpose." - See paragraph 60.

Elections - Topic 7903

Controverted elections - Grounds for invalidity - Corrupt or fraudulent practices - [See Elections - Topic 7856 and Elections - Topic 8045 ].

Elections - Topic 7903

Controverted elections - Grounds for invalidity - Corrupt or fraudulent practices - The applicants sought to set aside the 2011 Election results in six ridings, under Part 20 of the Canada Elections Act - The objection to the election of the respondent MPs was based on allegations of "fraud or corrupt or illegal practices that affected the result of the election", made against a person or persons unknown - In the course of arguing the meaning of "fraud" in s. 524(1) of the Act, counsel drew the court's attention to statements by an official before the Senate Committee on Legal and Constitutional Affairs when the proposed new Act was before Parliament, to the effect that the Government's intent was to adopt a meaning of "fraud" which corresponded to the meaning in the criminal context - The Federal Court stated that "[w]hile such statements are of assistance in understanding the intent of the proponents of a legislative measure, they do not determine the parliamentary intent." - The court agreed with the submission "that any action or instance meeting the dictionary definition of fraud would constitute electoral fraud where it was done in contravention of a provision of the Canada Elections Act or where it served to defeat a process provided for in that Act. ... [D]eliberately misinforming electors about their polling location would thus be fraud within the meaning of s. 524 and is provable on the civil standard" - The court also accepted the submissions that "in considering whether the integrity of the electoral process has been compromised, the Court may take into account admissible evidence which shows that the fraud was of a broader scope than the manifestations of it which occurred in a single district that is the subject of an application." - See paragraphs 61 to 70.

Elections - Topic 7903

Controverted elections - Grounds for invalidity - Corrupt or fraudulent practices - The applicants sought to set aside the 2011 Election results in six ridings, under Part 20 of the Canada Elections Act - The ground cited for annulment was electoral "fraud, corrupt or illegal practices that affected the result of the election" (s. 524(1)(b)) - The Federal Court stated that "[t]he assessment of whether the impact of fraud affecting the result of the election is sufficient to warrant annulling the election result falls within the application of the judge's discretion under s. 531. If the number of suppressed votes is sufficient to cast doubt on the true winner, the Court has an easier task. Absent a clear finding to that effect, the more difficult question is whether the fraud, corrupt or illegal practice, if proven, was sufficiently serious to call the integrity of the election process into question. ... What may constitute a corrosive effect on the integrity of the electoral process will depend on the facts of each case. ... [T]he Court should only exercise its discretion to annul when there is serious reason to believe that the results would have been different but for the fraud or when an electoral candidate or agent is directly involved in the fraud." - See paragraphs 79 to 82.

Elections - Topic 7903

Controverted elections - Grounds for invalidity - Corrupt or fraudulent practices - The applicants sought to set aside the 2011 Election results in six ridings, under Part 20 of the Canada Elections Act - The ground cited for annulment was electoral fraud, corruption or illegality (s. 524(1)(b)) - The Federal Court stated that "there are three steps required to annul under the Act in the context of the vote suppression allegations before the Court. The applicants must first demonstrate one of the four circumstances in s. 524(1)(b): irregularities, fraud, corrupt practices, or illegal practices. Once the first step has been achieved, if even a single vote is shown to not have been cast due to one of the four above circumstances in a subject riding, the Court acquires the discretionary power to annul the results in that district under s. 531(2). The third step is for the Court to consider either the "magic number" test (explained in Opitz ...) or another appropriate test ... and decide whether to exercise its discretionary power." - See paragraph 83.

Elections - Topic 7903

Controverted elections - Grounds for invalidity - Corrupt or fraudulent practices - The applicants sought to set aside the 2011 Election results in six ridings, under Part 20 of the Canada Elections Act - The ground cited for annulment was electoral fraud, corruption or illegality (s. 524(1)(b)) - The Federal Court stated that "the meaning of 'fraud' in s. 524(1)(b) is not limited to the definition of any of the offences in Part 19 of the Act. It is not necessary, in my view, for an applicant to satisfy the elements of the criminal offences in order to establish that 'fraud' within the meaning of the enactment has been made out. It is sufficient to show false representations depriving, or creating a risk of depriving, a voter of the right to vote." - See paragraph 242.

Elections - Topic 7903

Controverted elections - Grounds for invalidity - Corrupt or fraudulent practices - The applicants sought to set aside the 2011 Election results in six "swing ridings", under Part 20 of the Canada Elections Act - Just before or on the election day, the applicants received recorded telephone calls purporting to be from Elections Canada, identifying an incorrect polling station location - The ground cited for annulment was electoral fraud, corruption or illegality (s. 524(1)(b)) - The applicants' uncontradicted evidence was that they regarded the misdirecting calls as erroneous and only learned from the media coverage in February and March of 2012 that the "robocalls" were likely part of an orchestrated campaign to suppress their votes - A survey was offered to establish that some voters, a sufficient number in each riding to overcome the margin of victory, would have voted but for the effect of a telephone call directing them to the wrong polling location - In no case did the calls "affect the result" for the current applicants in the sense that they were prevented from actually voting - The Federal Court dismissed the applications - The threshold to establish that fraud occurred had been met by the applicants - However, the applicants had no direct evidence that the voter suppression efforts had been successful - The survey evidence did not provide firm ground on which the court could have confidence in finding that the fraud affected the results - See paragraphs 240 to 258.

Elections - Topic 8045

Controverted elections - Canada - Grounds - The applicants sought to set aside the 2011 Election results in six ridings under Part 20 of the Canada Elections Act - The objection to the election of the respondent MPs was based on allegations of "fraud or corrupt or illegal practices that affected the result of the election", made against a person or persons unknown - The Federal Court considered the test, burden and standard of proof for invalidity - "Section 524 allows an elector or candidate to make an application to a court contesting an election on the grounds that the elected candidate was not eligible or that irregularities, fraud, or corrupt or illegal practices had affected the result of the election. An election cannot be contested on the same grounds as those for which a recount may be requested. ... The remedy the court may provide is in s. 531(2) ... The use of 'established' in s. 531(2) places the burden on the applicant throughout. The applicable standard of proof is the civil standard of proof on a balance of probabilities. The applicants must establish that electoral fraud occurred and that the results of the election were affected ... . In the present case, the applicants must establish that in each of the subject ridings there was at least one elector in each riding who did not vote as a result of the fraud." - See paragraphs 51 to 55.

Elections - Topic 8143

Controverted elections - Evidence and proof - Standard of proof - [See Elections - Topic 8045 ].

Elections - Topic 8144

Controverted elections - Evidence and proof - Burden of proof - [See Elections - Topic 8045 ].

Elections - Topic 8161

Controverted elections - Practice - General - The Federal Court considered Part 20 of the Canada Elections Act, providing for civil applications to overturn an election - Prior to the enactment of the 2000 Act, procedures to overturn election results were governed by the Dominion Controverted Elections Act - In applications under that legislation, the presiding court could exercise both criminal and civil jurisdiction - The two jurisdictions were treated separately in the 2000 Act - The criminal process was now left to the Commissioner and the Director of Public Prosecutions - "Part 20 of the Act now provides for civil applications to overturn an election. It is a complete code for the validity of an election to be challenged by a candidate or an elector and the result will touch upon the election outcome, not provide sanctions against individuals. The election of a candidate may not be contested otherwise than in accordance with Part 20, and the making of an application to contest an election does not affect any right or obligation of a candidate in that election (s. 522)." - See paragraphs 46 to 48.

Elections - Topic 8161

Controverted elections - Practice - General - The Federal Court agreed with the Chief Electoral Officer that the Canada Elections Act contemplated parallel criminal and civil processes - "[T]he Act contemplates that applications to annul an election may be brought at the same time as an investigation into possible violations of the Act is conducted by the Commissioner. This conclusion is supported by the time limit imposed for bringing a civil application, the requirement, in s. 525(3), that such applications shall be dealt with summarily and without delay and the lengthy limitation period for prosecutions provided for in s. 514. It is also consistent with the objective of ensuring the integrity of the electoral process when the results are found to have been affected by the conduct described in s. 524." - See paragraph 50.

Elections - Topic 8165

Controverted elections - Practice - Limitation periods - The Federal Court considered the time limit for making an application to annul, set out in s. 527 of the Canada Election Act - "The time-limit in s. 527 is mandatory. The Act does not allow for the exercise of discretion by the Court to extend the time within which an application may be brought. ... Parliament's intent appears to be that such applications should be brought and dealt with without delay" - Under s. 527(b), the 30 day limit commenced when the elector or candidate "knew or should have known" of the occurrence - "In interpreting s. 527(b), the Court should seek to find a balance between the objective of discouraging untimely applications that have no prospect of success and those that address serious concerns with the integrity of the electoral process." - See paragraphs 84 to 90.

Elections - Topic 8165

Controverted elections - Practice - Limitation periods - The applicants, eight voters residing in six electoral districts, applied to annul the results of the 2011 General Election in their ridings because of recorded telephone calls purporting to be from Elections Canada, falsely diverting them from their proper polling station - The Election was held on May 2, 2011 - The results for the ridings were published in the Canada Gazette between May 17 and 26, 2011 - The applications were filed on March 23 and March 26, 2012 - The respondent MPs submitted that the applications were statute-barred, as they were not filed within 30 days of the date on which the applicants knew or ought to have known of the occurrence of the fraud or the corrupt or illegal practice relating to the telephone calls - The respondent MPs also argued that because the applications were not initially accompanied by the required security for costs they did not become complete until those sums were paid, after the 30 days were up - The Federal Court found that the court could relieve against any such failure to make payment and considered any delay in that respect to have been cured - The court was unable to make a finding that the applicants knew or ought to have known of the misrepresentations prior to the media reports that began on or about February 22, 2012 - The evidence was not clear as to precisely when the applicants became aware of the misrepresentations - "Where electoral fraud is alleged and substantiated, the Court should be reluctant to deny the applicants a hearing on what may appear to be a technical, procedural ground advanced by a party that has an interest in preserving the result." - See paragraphs 116 to 127.

Elections - Topic 8169

Controverted elections - Practice - Costs - The applicants, eight voters residing in six electoral districts, brought applications to annul the results of the 2011 General Election in their ridings because of efforts to suppress votes that occurred during that election - The preliminary stages were marked by numerous objections to the evidence adduced by the applicants - The respondent MPs sought to strike the applications on the ground that they were frivolous and vexatious, to have them dismissed as champertous and to require excessive security for costs, "in transparent attempts to derail this case" - There had been interlocutory decisions made by the case management prothonotaries during the proceedings with related costs awards - The Federal Court dismissed the applications - With respect to costs, the court awarded the applicants costs for each of the pre-hearing motions in which they were successful, on a solicitor and client basis, to be paid jointly and severally by the respondent MPs - "[T]he applicants sought to achieve and hold the high ground of promoting the integrity of the electoral process while the respondent MPs engaged in trench warfare in an effort to prevent this case from coming to a hearing on the merits - The court was "inclined" to award the respondent Members of Parliament "a modest fixed amount" for the costs of the hearing, absent an agreement as to the amount - See paragraphs to 259 to 265.

Evidence - Topic 252

Inferences and weight of evidence - Weight - Expert evidence - [See Evidence - Topic 7002 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - The applicants, eight voters residing in six electoral districts, brought applications to annul the results of the 2011 General Election in their ridings because of efforts to suppress votes - An issue was whether the opinion evidence of Graves, President of a public policy, survey and research firm, should be struck - Graves' evidence, based on a random interactive telephone survey, was presented as that of an expert in research methodology and design, and applied statistical analysis - If admitted and given probative weight, the survey evidence was capable of supporting the annulment applications - The respondent MPs challenged Graves' qualifications as an expert and alleged partiality or bias - The Federal Court was not persuaded that Graves was not qualified to carry out the survey or that his opinion reflected partiality - He had objectively presented the challenges and limitations of the survey methodology in his report - His opinion evidence met the standard for admissibility - For that reason, the court dismissed the motion to disqualify Graves and strike his evidence, but the weight to be given to it remained to be determined - In the end result, the court was not satisfied that the survey was a reliable evidentiary basis upon which to cast doubt on the winner in each contest, even where the margin of victory was close - See paragraphs 128 to 147, 196 to 217, 248 to 251.

Practice - Topic 3683

Evidence - Affidavits - Use of - Affidavits by lawyer - Limitations - [See Barristers and Solicitors - Topic 801 ].

Torts - Topic 6280

Abuse of legal procedure - Maintenance and champerty - General - The Federal Court considered the concept of maintenance and champerty - The concept "has been preserved in some provincial legislation ... and remains an active common law doctrine in some provinces and in Federal Court practice ... Where the concept remains alive, two requirements are necessary. The first is that the party must have an 'improper motive' in maintaining the action. The second is that the plaintiff must be otherwise not disposed to enforce its legal rights against the defendant, but for the 'officious intermeddling' of the maintainer" - See paragraphs 96 and 97 - "Maintenance and champerty may still have some relevance today in the context of disputes between private parties over contractual arrangements and property rights. The concepts are inconsistent, in my view, with the recognition in modern society of the role of non-governmental organizations in facilitating access to justice and the validity of alternative arrangements for funding litigation, such as contingency fees ... . The costs of litigating, particularly when facing well-resourced respondents, are formidable." - See paragraph 111.

Torts - Topic 6280

Abuse of legal procedure - Maintenance and champerty - General - The applicants, eight voters residing in six electoral districts, brought applications to annul the results of the 2011 General Election in their ridings because of efforts to suppress votes - The respondent MPs' motion to strike alleged that there was maintenance and champerty by the Council of Canadians, an organization said to have a long-standing animus against the Conservative Party of Canada - They asserted that the Council was profiting by the applications in that it was conducting fund-raising activities in support of the applicants and benefited from the increased profile that it had gained from this case - The Federal Court dismissed the motion - The court was not convinced that the Council's motivations in indemnifying the applicants against costs were driven by a particular animus, as opposed to the broader public interest in clean elections - Even if the Council's motives were politically partisan, they would not be grounds for dismissal - There was no evidence that the applicants acted for any reason other than to assert their rights to a fair election - "The fundamental aim of the law of champerty has always been to protect the administration of justice from abuse. It is not an abuse of the Court's process for an elector, with or without the support of a non-governmental organization, to bring an application to contest an election where there is evidence of an attempt to affect the results of that election through fraud. This is particularly true where the right to bring the application arises by statute and does not find its basis in any agreement with the third party." - See paragraphs 108 to 115.

Words and Phrases

Fraud - The Federal Court considered the meaning of the word "fraud" in s. 524(1) of the Canada Elections Act, S.C. 2000, c. 9 - See paragraphs 61 to 70, 242.

Words and Phrases

Knew or should have known - The Federal Court considered the meaning of the phrase " ... knew or should have known" in s. 527(b) of the Canada Elections Act, S.C. 2000, c. 9 - See paragraphs 91 to 93.

Words and Phrases

Affected the result of the Election - The Federal Court considered the meaning of the phrase " ... affected the result of the Election" in s. 524(1)(b) of the Canada Elections Act, S.C. 2000, c. 9 - See paragraphs 71 to 83.

Cases Noticed:

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Bielli v. Canada (Attorney General) et al. (2012), 415 F.T.R. 286; 2012 FC 916, refd to. [para. 18].

Bielli v. Canada (Attorney General) et al. (2012), 424 F.T.R. 22; 2012 FC 1172, refd to. [para. 22].

Wrzesnewskyj v. Canada (Attorney General) et al. (2012), 435 N.R. 259; 296 O.A.C. 82; 2012 SCC 55, refd to. [para. 33].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 60].

Friesen et al. v. Hammell et al. (1999), 117 B.C.A.C. 1; 191 W.A.C. 1; 1999 BCCA 23, refd to. [para. 65].

Pellerin v. Thérien (1997), 148 D.L.R.(4th) 255; 1997 Carswell Que. 214 (C.A.), refd to. [para. 68].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 74].

Penta v. Revere (City) (1997), 8 Mass. L. Rep. 106; 1997 Mass. Super Lexis 62, refd to. [para. 80].

Gooch v. Hendrix (1993), 851 P.2d 1321; 1993 Cal. Lexis 2497 (Sup. Ct.), refd to. [para. 80].

Valence v. Rosiere (1996), 675 So.2d 1138; 1996 La.App. Lexis 953 (App. Ct. 5th Ct.), refd to. [para. 80].

Marks v. Stinson (1994), 19 F.3d 873; 1994 U.S. App. Lexis 4602 (3d Cir.), refd to. [para. 80].

Bell v. Southwell (1967), 376 F.2d 659; 1967 U.S. App. Lexis 6731 (5th Cir.), refd to. [para. 80].

Cusimano v. Toronto (City) et al. (2011), 287 O.A.C. 355; 2011 ONSC 7271 (Div. Ct.), refd to. [para. 81].

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Deigan v. Canada (Attorney General) (1996), 206 N.R. 195 (F.C.A.), refd to. [para. 107].

Van Duyvenbode v. Canada (Attorney General), [2009] N.R. Uned. 35; 2009 FCA 120, refd to. [para. 107].

Adi et al. v. Datta et al., [2011] O.T.C. Uned. 2496; 2011 ONSC 2496, refd to. [para. 108].

Kroeker v. Harkema Express Lines Ltd. (1973), 2 O.R.(2d) 210 (H.C.J.), refd to. [para. 110].

Skelton v. Baxter, [1916] 1 K.B. 321 (C.A.), refd to. [para. 110].

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Lavigne v. Ontario Public Service Employees' Union et al., [1987] O.J. No. 653 (H.C.J.), revd. (1989), 31 O.A.C. 40 (C.A.), affd. [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241, refd to. [para. 112].

S. v. K. (1986), 55 O.R.(2d) 111, refd to. [para. 114].

Hilton et al. v. Norgaard, [1992] B.C.T.C. Uned. 89 (S.C.), refd to. [para. 122].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 130].

R. v. J.-L.J. (2000), 261 N.R. 111; 2000 SCC 51, refd to. [para. 140].

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Es-Sayyid v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 432 N.R. 261; 2012 FCA 59, refd to. [para. 142].

Johnson et al. v. Milton (Town) et al. (2008), 239 O.A.C. 122; 2008 ONCA 440, refd to. [para. 143].

R. v. Cooper, [1980] 1 S.C.R. 1149; 31 N.R. 234, refd to. [para. 144].

Benoit et al. v. Canada (2002), 217 F.T.R. 1; 2002 FCT 243, refd to. [para. 144].

Stetson Oil & Gas Ltd. v. Stifel Nicolaus Canada Inc., [2013] O.T.C. Uned. 1300; 2013 ONSC 1300, refd to. [para. 144].

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McLaughlin v. Canada (Attorney General) (2012), 408 F.T.R. 286; 2012 FC 556, refd to. [para. 156].

R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 158].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 158].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 158].

R. v. W.B.C. (2000), 130 O.A.C. 1 (C.A.), refd to. [para. 161].

R. v. Semigak (A.H.) (2007), 267 Nfld. & P.E.I.R. 75; 811 A.P.R. 75; 2007 NLTD 34, refd to. [para. 161].

R. v. A.P. (1996), 92 O.A.C. 376 (C.A.), refd to. [para. 162].

R. v. Times Square Cinema Ltd., [1971] O.J. No. 1697 (C.A.), refd to. [para. 196].

Mattel Inc. v. 3894207 Canada Inc. et al., [2006] 1 S.C.R. 772; 348 N.R. 340; 2006 SCC 22, refd to. [para. 197].

Henry et al. v. Canada (Attorney General) et al., [2010] B.C.T.C. Uned. 610; 2010 BCSC 610, refd to. [para. 198].

Bedford et al. v. Canada (Attorney General) et al., [2010] O.T.C. Uned. 4264; 2010 ONSC 4264, refd to. [para. 198].

Carter et al. v. Canada (Attorney General) et al., [2012] B.C.T.C. Uned. 886; 2012 BCSC 886, refd to. [para. 198].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 198].

Symes v. Minister of National Revenue, [1993] 4 S.C.R. 695; 161 N.R. 243, refd to. [para. 198].

Philip Morris Products S.A. et al. v. Marlboro Canada Ltd. et al. (2010), 374 F.T.R. 213; 2010 FC 1099, refd to. [para. 198].

M. v. H., [1996] O.J. No. 2597 (Gen. Div.), refd to. [para. 259].

Statutes Noticed:

Canada Elections Act, S.C. 2000, c. 9, sect. 524 [para. 52]; sect. 527 [para. 84]; sect. 531(2) [para. 53].

Canadian Charter of Rights and Freedoms, 1982, sect. 3 [para. 35].

Federal Courts Rules, SOR/98-106, rule 82 [para. 102].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 60].

Fleming, John G., The Law of Torts (3rd Ed. 1965), pp. 592 to 593 [para. 95].

Counsel:

Steven Shrybman, Peter Engelmann and Benjamin Piper, for the applicants;

Barbara McIsaac and Marc Chenier, for the respondent, Marc Mayrand, Chief Electoral Officer;

Arthur Hamilton, Ted Frankel and Jeremy Martin, for the respondents, responding Parliamentarians;

W. Thomas Barlow and Nick Shkordoff, for the respondent, the Responsive Marketing Group Inc.

Solicitors of Record :

Sack Goldblatt Mitchell LLP, Ottawa, Ontario, for the applicants;

Borden Ladner Gervais LLP, Ottawa, Ontario, for the respondent, Marc Mayrand, Chief Electoral Officer;

Cassels Brock & Blackwell LLP, Toronto, Ontario, for the respondents, responding Parliamentarians;

Fasken Martineau Dumoulin LLP, Toronto, Ontario, for the respondent, the Responsive Marketing Group Inc.

These applications were heard at Ottawa, Ontario, on December 10-17, 2012, before Mosley, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated May 23, 2013.

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22 practice notes
  • McEwing c. Canada (Procureur général),
    • Canada
    • Federal Court (Canada)
    • May 23, 2013
    ...4 R.C.F. McEWING c. CANADA 632013 FC 525T-619-12Sandra McEwing and Bill Kerr (Applicants)v.Attorney General of Canada, Marc Mayrand (the Chief Electoral Officer), Johanna Gail Denesiuk (Returning Officer for Winnipeg South Centre), Joyce Bateman, Anita Neville, Dennis Lewycky, Joshua McNeil......
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    • Understanding Canada Political Law in Canada
    • August 22, 2023
    ...14. 33 Opitz v Wrzesnewskyj , 2012 SCC 55. 34 Bielli v Canada (Attorney General) , 2012 FC 916 and McEwing v Canada (Attorney General) , 2013 FC 525. 35 R v Sona , 2014 ONCA 859; R v Del Mastro , 2017 ONCA 711. 36 Oice of the Director of National Intelligence, National Intelligence Council,......
  • Table cases
    • Canada
    • Irwin Books Anatomy of an Election. Canada’s Federal General Election of 2019 Through the Lens of Political Law Appendices
    • June 15, 2020
    ...CBC/Radio Canada, 2011 FCA 130 .......................................................... 175, 719–21 McEwing v Canada (Attorney General), 2013 FC 525, [2013] 4 RCF 63 ............66, 724–26 Megalos v Elections Canada, 2017 BCSC 2089 ...............................................................
  • Canada (Minister of Citizenship and Immigration) v. Zakaria et al., (2014) 463 F.T.R. 168 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 2, 2014
    ...Odynsky (2001), 196 F.T.R. 1; 2001 FCT 138, refd to. [para. 41]. McEwing et al. v. Canada (Attorney General) et al., [2013] 4 F.C.R. 63; 433 F.T.R. 59; 2013 FC 525, refd to. [para. 42]. Samatar v. Canada (Attorney General) (2012), 420 F.T.R. 182; 2012 FC 1263, refd to. [para. 42]. Baro v. C......
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15 cases
  • McEwing c. Canada (Procureur général),
    • Canada
    • Federal Court (Canada)
    • May 23, 2013
    ...4 R.C.F. McEWING c. CANADA 632013 FC 525T-619-12Sandra McEwing and Bill Kerr (Applicants)v.Attorney General of Canada, Marc Mayrand (the Chief Electoral Officer), Johanna Gail Denesiuk (Returning Officer for Winnipeg South Centre), Joyce Bateman, Anita Neville, Dennis Lewycky, Joshua McNeil......
  • Canada (Minister of Citizenship and Immigration) v. Zakaria et al., (2014) 463 F.T.R. 168 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 2, 2014
    ...Odynsky (2001), 196 F.T.R. 1; 2001 FCT 138, refd to. [para. 41]. McEwing et al. v. Canada (Attorney General) et al., [2013] 4 F.C.R. 63; 433 F.T.R. 59; 2013 FC 525, refd to. [para. 42]. Samatar v. Canada (Attorney General) (2012), 420 F.T.R. 182; 2012 FC 1263, refd to. [para. 42]. Baro v. C......
  • Whitford v. Red Pheasant First Nation, 2022 FC 436
    • Canada
    • Federal Court (Canada)
    • March 30, 2022
    ...agent is directly involved in the fraud: Papequash v Brass, 2018 FC 325 [Barnes J] at paras 34-36, McEwing v Canada (Attorney General), 2013 FC 525 [Mosley J] at paras 81-82, Gadwa v Kehewin First Nation, 2016 FC 597 [Strickland J] at para 88. [60] That said, while the Applicants have e......
  • Abi-Mansour v. Canada (Attorney General), 2015 FC 882
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • November 25, 2014
    ...Union et al., [2000] 1 F.C. 135; 249 N.R. 37 (F.C.A.), refd to. [para. 27]. McEwing et al. v. Canada (Attorney General) et al. (2013), 433 F.T.R. 59; 2013 FC 525, refd to. [para. 30]. Samatar v. Canada (Attorney General), [2014] 2 F.C.R. 43; 420 F.T.R. 182; 2012 FC 1263, refd to. [para. 35]......
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5 books & journal articles
  • Notes
    • Canada
    • Understanding Canada Political Law in Canada
    • August 22, 2023
    ...14. 33 Opitz v Wrzesnewskyj , 2012 SCC 55. 34 Bielli v Canada (Attorney General) , 2012 FC 916 and McEwing v Canada (Attorney General) , 2013 FC 525. 35 R v Sona , 2014 ONCA 859; R v Del Mastro , 2017 ONCA 711. 36 Oice of the Director of National Intelligence, National Intelligence Council,......
  • Table cases
    • Canada
    • Irwin Books Anatomy of an Election. Canada’s Federal General Election of 2019 Through the Lens of Political Law Appendices
    • June 15, 2020
    ...CBC/Radio Canada, 2011 FCA 130 .......................................................... 175, 719–21 McEwing v Canada (Attorney General), 2013 FC 525, [2013] 4 RCF 63 ............66, 724–26 Megalos v Elections Canada, 2017 BCSC 2089 ...............................................................
  • Appendix 3: Fundamamental jurisprudence
    • Canada
    • Irwin Books Anatomy of an Election. Canada’s Federal General Election of 2019 Through the Lens of Political Law Appendices
    • June 15, 2020
    ...(see October 1, 2018, Québec, page 79). Bielli v Canada (Attorney General), 2012 FC 916 and McEwing v Canada (Attorney General), 2013 FC 525 CONTEXT: Fraudulent practices in campaigning PRINCIPLE: Establishing a standard for electoral fraud and its consequences his case arose out of the rob......
  • Diary of Matters of Interest for the 42nd Parliament
    • Canada
    • Irwin Books Anatomy of an Election. Canada’s Federal General Election of 2019 Through the Lens of Political Law Part two
    • June 15, 2020
    ...Party and government actors created a plan to enable him to be a candidate as long as he did not win, were said to be 2 2015 FCA 152. 3 2013 FC 525. (See also pages 724–26 in Appendix 3) 4 2015 FCA 218. [ 66 ] Diary of Matters of Interest for the 42nd Parliament without an iota of evidence.......
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