St. Paul No. 19 (County) v. St. Paul No. 19 (County) et al., (2008) 449 A.R. 121 (QB)

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 08, 2008
• Citations: (2008), 449 A.R. 121 (QB);2008 ABQB 284

St. Paul No. 19 v. St. Paul No. 19 (2008), 449 A.R. 121 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.121

In The Matter Of a Controverted Election Pursuant to Part 5 of the Local Authorities Election Act, R.S.A. 2000, c. L-21, as Amended

The County of St. Paul No. 19 (applicant) v. The County of St. Paul No. 19, Mike Bergeron, Maxine Fodness and Wayne Horner (respondents)

(0714 00290; 2008 ABQB 284)

Indexed As: St. Paul No. 19 (County) v. St. Paul No. 19 (County) et al.

Alberta Court of Queen's Bench

Judicial District of St. Paul

Bielby, J.

May 15, 2008.

Summary:

The County of St. Paul applied for an order determining whether the October 15, 2007, election in its Division 4 was substantially conducted in accordance with the requirements of the Local Authorities Elections Act, particularly as to whether the participation of ineligible electors materially affected the result and, if so, for an order declaring the election for Division 4 invalid and directing that a new election be held.

The Alberta Court of Queen's Bench found that 11 voters who failed to meet the residency requirements imposed by s. 48(1)(b) of the Act had voted in the election. The court held that the breach of s. 48(1)(b) was minor and unintentional and arose because s. 48(1)(b) did not provide clear direction as to where a voter who had more than one residence was to vote. The breach did not result in a substantial non-compliance with the Act nor did it materially affect the result of the election. Therefore, pursuant to s. 137(3) of the Act, the court adjudged the election valid.

Elections - Topic 2044

Voters - Qualifications - Residence - The County of St. Paul applied for an order determining whether the October 15, 2007, election in its Division 4 was substantially conducted in accordance with the requirements of the Local Authorities Elections Act, particularly as to whether the participation of ineligible electors materially affected the result and, if so, for an order declaring the election for Division 4 invalid and directing that a new election be held - The Alberta Court of Queen's Bench found that 11 voters who failed to meet the residency requirements imposed by s. 48(1)(b) of the Act had voted in the election - Section 48(1)(b) was to be interpreted to mean that where a voter had more than one residence he or she was entitled to vote only in the voting subdivision in which the residence to which he or she felt the greatest sense of personal attachment was located - The court held that the breach of s. 48(1)(b) was minor and unintentional and arose because s. 48(1)(b) did not provide clear direction as to where a voter who had more than one residence was to vote - The breach did not result in a substantial non-compliance with the Act nor did it materially affect the result of the election - Even if the 11 voters in question had voted for the winning candidate, discounting their votes still resulted in her having defeated the candidate with the next highest number of votes by 326 to 99 - Therefore, pursuant to s. 137(3) of the Act, the court adjudged the election valid - See paragraphs 14 to 97.

Elections - Topic 7904

Controverted elections - Grounds for invalidity - Unqualified electors - [See Elections - Topic 2044 ].

Elections - Topic 7915

Controverted elections - Grounds for invalidity - Curing of - [See Elections - Topic 2044 ].

Elections - Topic 8169

Controverted elections - Practice - Costs - The County of St. Paul applied for an order determining whether the October 15, 2007, election in its Division 4 was substantially conducted in accordance with the requirements of the Local Authorities Elections Act, particularly as to whether the participation of ineligible electors materially affected the result and, if so, for an order declaring the election for Division 4 invalid and directing that a new election be held - The Alberta Court of Queen's Bench found that 11 voters who failed to meet the residency requirements imposed by the Act had voted in the election - However, the court held that the breach did not result in a substantial non-compliance with the Act, nor did it materially affect the result of the election - Even if the 11 voters in question had voted for the winning candidate, discounting their votes still resulted in her having defeated the candidate with the next highest number of votes by 326 to 99 - Therefore, pursuant to s. 137(3) of the Act, the court adjudged the election valid - The County was ordered to pay the full indemnity costs of the winning candidate, who had been named as a respondent in the application - The court considered, inter alia, that while the County had agreed in its written brief and oral argument that it was not likely that the court would overturn the election, it did not abandon its request that the court do so, which had the effect of increasing costs throughout - See paragraphs 99 to 102.

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Improper, irresponsible or unconscionable conduct - [See Elections - Topic 8169 ].

Cases Noticed:

Anderson v. Laderoute, [2001] A.J. No. 1718, refd to. [para. 29].

Blackfalds (Town) v. Stryker (2000), 263 A.R. 143 (Q.B.), refd to. [para. 35].

Kamloops (City) v. Northland Properties Ltd. et al. (2000), 139 B.C.A.C. 275; 227 W.A.C. 275; 76 B.C.L.R.(3d) 63; 2000 BCCA 344, refd to. [para. 38].

Foothills No. 31 (Municipal District) v. Jones (1990), 107 A.R. 213 (Q.B.), refd to. [para. 40].

Gordon v. Bourque et al. (2001), 304 A.R. 158 (Q.B.), refd to. [para. 44].

Bellerose v. East Prairie Metis Settlement, [2005] A.J. No. 1047 (Q.B.), refd to. [para. 44].

Vogel v. Brazeau No. 77 (Municipal District) et al. (1996), 183 A.R. 121 (Q.B.), refd to. [para. 46].

R. (ex rel. Marquette) v. Skaret (1981), 29 A.R. 249; 119 D.L.R.(3d) 497 (Q.B.), refd to. [para. 46].

Blyan v. Buffalo Lake Metis Settlement (1997), 199 A.R. 136; 49 Alta. L.R.(3d) 171 (Q.B.), refd to. [para. 46].

Durocher et al. v. Fishing Lake Metis Settlement et al., [2003] A.R. Uned. 774; 2003 ABQB 944, refd to. [para. 46].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 100].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

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. 100].

R. v. Caron (G.) (2008), 429 A.R. 79; 421 W.A.C. 79; 2008 ABCA 111, refd to. [para. 100].

Statutes Noticed:

Local Authorities Election Act, R.S.A. 2000, c. L-21, sect. 47(1), sect. 48(1) [para. 28]; sect. 137(2), sect. 137(3) [para. 27].

Counsel:

Sheila McNaughtan and Kelsey B. Brookes, for the applicant/respondent, the County of St. Paul No. 19;

K. D. Wakefield, Q.C., for the respondent, Maxine Fodness.

This application was heard on April 8, 2008, before Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of St. Paul, who delivered the following reasons for judgment on May 15, 2008.