Miller v. Boxall et al., 2006 SKQB 403

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 28, 2006
• Jurisdiction: Saskatchewan
• Citations: 2006 SKQB 403;(2006), 283 Sask.R. 257 (QB)

Miller v. Boxall (2006), 283 Sask.R. 257 (QB)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. SE.024

In The Matter Of the Controverted Municipal Elections Act and the within application for Notice of Motion in the nature of a Quo Warranto

In The Matter Of the Election of Reeve and Councillors on November 4, 2004 for the R.M. of Sherwood No. 159

Gary Miller (relator/applicant) v. Linda Boxall, James Farley, Paul Fournier, Roy Klym and Jack Drew (respondents) and Vic Polsom, Kevin Eberle and Erwin Hanley (non-parties)

(2004 Q.B.G. No. 2290; 2006 SKQB 403)

Indexed As: Miller v. Boxall et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barclay, J.

August 28, 2006.

Summary:

Miller applied pursuant to the Controverted Municipal Elections Act to set aside the results of an election held by the Rural Municipality of Sherwood No. 159. Miller claimed that there were various irregularities during the taking of votes and also that the individual respondents had committed the offence of undue influence set out in s. 4 of the Act.

The Saskatchewan Court of Queen's Bench, in a decision reported at 261 Sask.R. 211; 2004 SKQB 122, dismissed the application. Miller appealed.

The Saskatchewan Court of Appeal, in a decision reported at 269 Sask.R. 253; 357 W.A.C. 257; 2005 SKCA 117, allowed the appeal. The court returned the matter to the Court of Queen's Bench for a viva voce hearing to determine whether offences had been committed under s. 4 of the Act.

The Saskatchewan Court of Queen's Bench dismissed Miller's application. The court was not satisfied that any of the respondents had committed the offence of undue influence.

Elections - Topic 6104

Offences - Intimidation, undue influence, threats, etc. - Undue influence (incl. what constitutes) - Miller was a candidate in a 2004 election held by a Rural Municipality - Miller brought an application pursuant to the Controverted Municipal Elections Act, claiming that five individual respondents had committed the offence of undue influence set out in s. 4 of the Act - Miller contended that the individual respondents, in the manner and timing of enacting certain bylaws, had acted in such a way as to punish certain residents who voted in the 2003 election and to preclude them from voting in the 2004 election - The Saskatchewan Court of Queen's Bench dismissed the application - The court accepted the respondents' testimony that they were acting in good faith and in the public interest and on the advice of their counsel when enacting the new bylaws - Miller had not met the onus on him to establish corrupt practices or corruption committed by the respondents as contemplated by s. 4 of the Act - The court was not satisfied that any of the respondents committed the offence of undue influence.

Cases Noticed:

Byers v. Wakefield (2004), 242 Sask.R. 228; 2004 SKQB 26, refd to. [para. 36].

Booth v. Sutherland (1874), 10 C.L.J.(N.S.) 287, refd to. [para. 37].

Babiuk v. Chrapko (1993), 9 Alta. L.R.(3d) 17 (Q.B.), refd to. [para. 38].

Arnold v. Harris (1993), 107 D.L.R.(4th) 88; 17 M.P.L.R.(2d) 284 (Ont. Gen. Div.), consd. [para. 39].

Johansen et al. v. Dickerson (1980), 117 D.L.R.(3d) 176; 30 O.R.(2d) 616 (H.C.), refd to. [para. 42].

Argue (E.C.) Holdings Ltd. et al. v. Edenwold No. 158 (Rural Municipality) (1999), 179 Sask.R. 142 (Q.B.), refd to. [para. 46].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81, refd to. [para. 47].

Kuchma v. Tache (Rural Municipality), [1945] S.C.R. 234, refd to. [para. 48].

Toronto (City) v. Polai (1969), 8 D.L.R.(3d) 689 (Ont. C.A.), affd. [1973] S.C.R. 38; 28 D.L.R.(3d) 638, refd to. [para. 51].

Statutes Noticed:

Controverted Municipal Elections Act, R.S.S. 1978, c. C-33, sect. 4 [para. 35].

Counsel:

Judith S. Falle, for the relator;

Ralph K. Ottenbreit, Q.C., for the respondents.

This application was heard before Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on August 28, 2006.