Smith v. Levy, (1985) 69 N.S.R.(2d) 124 (TD)

• Judge: Hallett, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: April 15, 1985
• Jurisdiction: Nova Scotia
• Citations: (1985), 69 N.S.R.(2d) 124 (TD)

Smith v. Levy (1985), 69 N.S.R.(2d) 124 (TD);

    163 A.P.R. 124

MLB headnote and full text

Smith v. Levy

(S.K. 1771)

Indexed As: Smith v. Levy

Nova Scotia Supreme Court

Trial Division

Hallett, J.

April 23, 1985.

Summary:

A candidate for an electoral district was elected as a member of the house of assembly in a general election. He won over three other candidates by a 21 vote margin. A voter, by means of a petition under s. 4 of the Controverted Elections Act, complained that the candidate was not duly or properly elected on the ground that university students had been included on the voting list. The Nova Scotia Supreme Court, Trial Division, dismissed the petition and held that the students were "ordinarily resident" within the province and in the polling division as required by the Elections Act and were therefore fully entitled to vote.

Elections - Topic 2044

Voters - Qualifications - Residence - Ordinarily resident - Meaning of - The Nova Scotia Supreme Court, Trial Division, defined ordinarily resident as "the place where a person habitually and normally resides in that he eats and sleeps in the place and, apart from temporary or occasional absences of long or short duration, is the place he has adopted voluntarily and for a settled purpose" - The court held that university students were ordinarily resident in the province for the purpose of s. 27 of the Elections Act, R.S.N.S. 1967, c. 83 - See paragraphs 18 and 19.

Elections - Topic 2049

Voters - Qualifications - Students - Unmarried students - The Nova Scotia Supreme Court, Trial Division, stated that under s. 28(5) of the Elections Act, R.S.N.S. 1967, c. 83, an unmarried student, having a family home in Nova Scotia, can vote either at home or at university - He has the right to be on two voting lists notwithstanding that by virtue of s. 28(6) he is ordinarily resident where his home is - See paragraphs 26 and 27.

Statutes - Topic 1624

Interpretation - Extrinsic aids - Other statutes - Prior statutes respecting same subject matter - The Nova Scotia Supreme Court, Trial Division, in construing s. 28(5) of the Elections Act, R.S.N.S. 1967, c. 83 considered its legislative history and development and the resulting legislative intent revealed thereby - See paragraphs 27 and 28.

Cases Noticed:

Blanchard v. Cole (1950), 25 M.P.R. 329, refd to. [para. 8].

Lambe v. McLeod No. 5, [1932] 3 W.W.R. 596, refd to. [para. 8].

Abrahamson v. Smishek and Baker (1964), 50 W.W.R.(N.S.) 664 (Sask. C.A.), refd to. [para. 8].

Thomson v. Minister of National Revenue, [1946] S.C.R. 209, refd to. [para. 18].

R. v. London Borough of Barnet; Ex parte Shah et al., [1983] 1 All E.R. 226, refd to. [para. 18].

Spek v. Provincial Director of the Ontario Legal Aid Plan (Lawson) (1984), 1 O.A.C. 15; 2 D.L.R.(4th) 672, refd to. [para. 18].

Stoke-on-Trent Borough Council v. Cheshire County Council, [1915] 3 K.B. 699, refd to. [para. 19].

Statutes Noticed:

Controverted Elections Act, R.S.N.S. 1967, c. 55, sect. 4 [para. 1]; sect. 39 [para. 2].

Civil Procedure Rules (N.S.), rule 18.04(b) [para. 3].

Elections Act, R.S.N.S. 1967, c. 83, sect. 25(1) [paras. 9, 13, 17, 19, 26, 30]; sect. 27 [paras. 9, 11, 13, 16, 17, 22, 23, 24, 25, 29, 30]; sect. 28(5), sect. 28(6) [paras. 9, 10, 17, 23, 26, 27, 28].

Legal Aid Act, R.S.O. 1980, c. 234, generally [para. 18].

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 3 [para. 26].

Counsel:

Walter O. Newton, for the petitioner;

Donald C. Fraser, for the respondent.

This petition was heard at Kentville, Nova Scotia, on April 15, 1985, before Hallett, J., of the Nova Scotia Supreme Court, Trial Division, who rendered the following decision on April 23, 1985.