Miller v. Boxall et al., 2005 SKQB 122

• Judge: Laing, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 09, 2005
• Jurisdiction: Saskatchewan
• Citations: 2005 SKQB 122;(2005), 261 Sask.R. 211 (QB)

Miller v. Boxall (2005), 261 Sask.R. 211 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. AP.035

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 RM of Sherwood No. 159

Gary Miller, of the RM of Sherwood No. 159, in the Province of Saskatchewan (relator) v. Linda Boxall, James Farley, Erwin Hanley, Kevin Eberle and Roy Klym, of the RM of Sherwood No. 159, in the Province of Saskatchewan, Vic Polsom, Jack Drew and Paul Fournier, of the City of Regina and the RM of Sherwood No. 159, in the Province of Saskatchewan, and Rural Municipality of Sherwood No. 159 (respondents)

(2004 Q.B.G. No. 2290; 2005 SKQB 122)

Indexed As: Miller v. Boxall et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Laing, J.

March 9, 2005.

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 significant irregularities during the taking of votes and also that five of the individual respondents committed the offence of undue influence set out in s. 4 of the Act.

The Saskatchewan Court of Queen's Bench dismissed the application.

Elections - Topic 3204

Voting and ballots - Ballots - General - Handling and storage of ballots - A Rural Municipality held an election - At the close of the advance poll, the election materials box and the ballot boxes were appropriately sealed and the returning officer placed them in the trunk of his vehicle and drove home - The vehicle remained in the returning officer's garage and the materials box and the ballot boxes remained in the trunk until election day - The Saskatchewan Court of Queen's Bench held that this was not an irregularity - Section 120(3) of the Act simply required that the election materials box and the ballot boxes be retained in a safe place - See paragraphs 39 to 40.

Elections - Topic 6104

Offences - Intimidation, undue influence, threats, etc. - Undue influence - What constitutes - Miller applied pursuant to the Controverted Municipal Elections Act to set aside the results of an election held by a Rural Municipality - Miller claimed that five individual respondents committed the offence of undue influence set out in s. 4 of the Act where they passed two bylaws in bad faith, solely for the purpose of disenfranchising certain voters - The Saskatchewan Court of Queen's Bench held that the facts alleged by Miller could not constitute an offence under s. 4 of the Act - Section 4 was directed at undue influence of voters who were duly qualified to vote on election day - The section did not have any application with respect to persons who were not qualified to vote on election day - It was also not obvious that a municipal council's procedurally correct enactment of a bylaw, or its subsequent enforcement, could ever amount to a threat, intimidation, duress or the "fraudulent device or contrivance" referred to in s. 4 - See paragraphs 33 to 34.

Elections - Topic 7857

Controverted elections - Jurisdiction - Miller applied pursuant to the Controverted Municipal Elections Act to set aside the results of an election held by a Rural Municipality - Miller claimed that five individual respondents committed the offence of undue influence set out in s. 4 of the Act where they passed two bylaws in bad faith, solely for the purpose of disenfranchising certain voters - The Saskatchewan Court of Queen's Bench held that the bylaws could not be challenged in an application brought under the Controverted Municipal Elections Act - The Legislature, in granting the court jurisdiction to address a motion in the nature of quo warranto, had implicitly granted the court a limited jurisdiction, which did not extend to ruling on the legality of municipal bylaws - In order for the court to undertake such an inquiry, it would have to exercise its common law jurisdiction, which was not appropriate - Even if the court was in error in that respect, it would still decline to exercise its jurisdiction - The bylaws were not illegal on their face and extraneous evidence was required to both attack and defend the bylaws - Miller also did not use the statutory provisions in the Rural Municipality Act to quash the bylaws and he chose not to formally challenge the bylaws by any other means prior to the election - See paragraphs 27 to 32.

Elections - Topic 7902

Controverted elections - Grounds for invalidity - Substantial and influential irregularities - A Rural Municipality held an election - When the returning officer presented the election materials and ballot boxes from the advance poll, the ballot boxes were appropriately sealed - The returning officer, in the process of cutting the paper seals that had been placed over the ballot box openings, also cut the returning officer's seals placed on the ballot boxes at the close of the advance poll - The returning officer realized his mistake immediately and he called back those candidates' agents who were present and resealed the boxes with new seals - The Saskatchewan Court of Queen's Bench held that the cutting of the seals on the ballot boxes was an accident which had no consequence and that the irregularity did not affect the result of the election within the meaning of s. 152 of the Controverted Municipal Elections Act - See paragraphs 41 and 50.

Elections - Topic 8164

Controverted elections - Practice - Pleadings - Miller applied pursuant to the Controverted Municipal Elections Act to set aside the results of an election held by a Rural Municipality - Miller claimed that there were election irregularities and also that five individual respondents committed the offence of undue influence set out in s. 4 of the Act - The Saskatchewan Court of Queen's Bench held that while Miller's notice of motion with respect to the allegations of election irregularities was deficient, the affidavit material and a written memorandum made it clear what election irregularities were being alleged - The court concluded that the deficiencies in the notice of motion were not sufficient to nullify the proceedings and that allowing the allegations to be considered on their merits would not offend s. 26 of the Act as they were contained in the evidence submitted - See paragraphs 13 to 23.

Municipal Law - Topic 3810

Bylaws - Quashing bylaws - General - Jurisdiction - [See Elections - Topic 7857 ].

Municipal Law - Topic 3905

Bylaws - Quashing bylaws - Judicial review - Bars - Statutory bars - Miller applied pursuant to the Controverted Municipal Elections Act to set aside the results of an election held by a Rural Municipality - Miller claimed that five individual respondents committed the offence of undue influence set out in s. 4 of the Act where they passed two bylaws in bad faith, solely for the purpose of disenfranchising certain voters - The respondents argued that Miller's argument amounted to a collateral attack on the bylaws and that s. 183 of the Rural Municipality Act barred a challenge to the bylaws - The Saskatchewan Court of Queen's Bench held that s. 183 of the Rural Municipality Act was not a bar to challenging the bylaws in this matter - Section 183 was not a bar to an action or application brought to set aside a bylaw on the grounds of lack of jurisdiction - Miller was alleging an excess of jurisdiction in the sense of alleged bad faith or improper purpose, which, if present, could cause a loss of jurisdiction - See paragraph 26.

Cases Noticed:

Chyz v. Appraisal Institute of Canada (1985), 44 Sask.R. 165 (C.A.), refd to. [para. 19].

Coulthard v. Coulthard (1952), 5 W.W.R.(N.S.) 662 (Sask. C.A.), refd to. [para. 22].

Argue (E.C.) Holdings Ltd. et al. v. Edenwold No. 158 (Rural Municipality) (1999), 179 Sask.R. 142 (Q.B.), refd to. [para. 26].

Pearce v. Pappenfus, Spalding Union Hospital and St. Peter No. 369 (Rural Municipality), [1981] 2 W.W.R. 291; 5 Sask.R. 100 (C.A.), consd. [para. 26].

Byers v. Wakefield (2004), 242 Sask.R. 228; 2004 SKQB 26, refd to. [para. 29].

Statutes Noticed:

Controverted Municipal Elections Act, R.S.S. 1978, c. C-33, sect. 4 [para. 24].

Rural Municipality Act, S.S. 1989-90, c. R-26.1, sect. 183 [para. 26].

Authors and Works Noticed:

de Smith, S.A., Judicial Review of Administrative Action (4th Ed. 1980), pp. 463, 464 [para. 30]; 584, fn. 6 [para. 30].

Rogers, Ian MacF., The Law of Canadian Municipal Corporations (1st Ed. 1959), vol. 2, p. 894 [para. 26].

Counsel:

Judith S. Falle, for the relator;

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

Fred C. Zinkhan, for the respondent, Rural Municipality of Sherwood No. 159.

This application was heard before Laing, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on March 9, 2005.