Miller v. Boxall et al., 2005 SKCA 117

• Judge: Vancise, Gerwing and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 14, 2005
• Jurisdiction: Saskatchewan
• Citations: 2005 SKCA 117;(2005), 269 Sask.R. 253 (CA)

Miller v. Boxall (2005), 269 Sask.R. 253 (CA);

    357 W.A.C. 253

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. NO.015

Gary Miller (relator/applicant/appellant) v. Linda Boxall, James Farley, Roy Klym, Paul Fournier and Jack Drew and Rural Municipality of Sherwood No. 159 (respondents/respondents) and Kevin Eberle, Erwin Hanley and Vic Polsom (respondents/non-parties)

(No. 1129; 2005 SKCA 117)

Indexed As: Miller v. Boxall et al.

Saskatchewan Court of Appeal

Vancise, Gerwing and Sherstobitoff, JJ.A.

September 14, 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 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 allowed the appeal. The court set aside the judgment below and 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.

Elections - Topic 6104

Offences - Intimidation, undue influence, threats, etc. - Undue influence (incl. what constitutes) - Miller applied pursuant to the Controverted Municipal Elections Act to set aside the results of a 2004 election held by a Rural Municipality - Miller claimed that five individual respondents had committed the offence of undue influence set out in s. 4 of the Act - He contended that the individual respondents, in the manner and timing of enacting certain bylaws, 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 because of the manner in which they had voted - The application judge characterized the issue as a collateral attack on the bylaws and held that a complaint under s. 4 of the Act was not a proper way to attack a bylaw - Miller appealed - The Saskatchewan Court of Appeal allowed the appeal - The court held that an issue had been raised under s. 4 of the Act and that s. 6 mandated a viva voce hearing to determine the matter.

Elections - Topic 7872

Controverted elections - Invalid elections - Procedure for determining - [See Elections - Topic 6104 ].

Cases Noticed:

R. ex rel. Kwasnica v. Johansick, [1928] 2 W.W.R. 315 (Sask. C.A.), consd. [para. 12].

Statutes Noticed:

Controverted Municipal Elections Act, R.S.S. 1978, c. C-33, sect. 4, sect. 6 [para. 9].

Counsel:

Judith S. Falle, for the appellant;

Ralph K. Ottenbreit, Q.C., for the respondents, Boxall, Farley, Klym, Fournier and Drew.

This appeal was heard on September 14, 2005, before Vancise, Gerwing and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was delivered orally on September 14, 2005 and written reasons were provided by Gerwing, J.A., on September 22, 2005.