Miller v. Boxall et al., (2007) 291 Sask.R. 113 (QB)

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 08, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 291 Sask.R. 113 (QB);2007 SKQB 9

Miller v. Boxall (2007), 291 Sask.R. 113 (QB)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. JA.046

In The Matter Of the Controverted Municipal Elections Act and the Within Application for Notice of Motion in the Nature of 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, Paul Fournier, Roy Klym and Jack Drew (respondents)

(2004 Q.B.G. No. 2290; 2007 SKQB 9)

Indexed As: Miller v. Boxall et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barclay, J.

January 8, 2007.

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, dismissed the application. Miller appealed.

The Saskatchewan Court of Appeal, in a decision reported at 269 Sask.R. 253; 357 W.A.C. 257, 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, in a decision reported at 283 Sask.R. 257, dismissed Miller's application. The court was not satisfied that any of the respondents had committed the offence of undue influence. Miller contended that since the matter was in the nature of public interest litigation, costs should not be awarded. The respondents argued that the court should award solicitor client costs.

The Saskatchewan Court of Queen's Bench awarded party and party costs against Miller fixed at $5,000.

Elections - Topic 8169

Controverted elections - Practice - Costs - Miller was a candidate in an election held by a Rural Municipality - Miller brought an application pursuant to the Controverted Municipal Elections Act, claiming that the respondents had committed the offence of undue influence set out in s. 4 of the Act - The application was dismissed - Miller contended that since the matter was in the nature of public interest litigation, costs should not be awarded - The respondents sought solicitor client costs - The Saskatchewan Court of Queen's Bench awarded party and party costs against Miller fixed at $5,000 - The action could not be characterized as public interest litigation - Further, certain of the criteria for when costs should not be awarded against a person who commenced public interest litigation did not apply - Particularly, the proceedings did not invoke issues, the importance of which extended beyond the immediate interest of the parties involved; Miller, as a ratepayer, had an interest in the outcome of the proceedings; and the respondents were not in a clearly superior position to bear the costs of the proceedings - Solicitor client costs were also not warranted - The issue before the court was justiciable within the terms of the Controverted Municipal Elections Act and it was an appropriate matter to bring before the court for determination.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Public interest or test case - [See Elections - Topic 8169 ].

Cases Noticed:

Harris v. Minister of National Revenue, [2002] 2 F.C. 484; 214 F.T.R. 1; 2001 FCT 1408, refd to. [para. 5].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 6].

Siemens et al. v. Bawolin et al., [2002] 11 W.W.R. 246; 219 Sask.R. 282; 272 W.A.C. 282; 2002 SKCA 84, refd to. [para. 11].

Authors and Works Noticed:

Ontario, Law Reform Commission, Report on the Law of Standing (1989), generally [para. 5].

Orkin, Mark M., The Law of Costs (2nd Ed. 1987) (Looseleaf), generally [para. 5].

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 January 8, 2007.