Wright, Danson and Sanborn v. Koziak and Albrecht, (1979) 21 A.R. 586 (QB)

• Judge: Dechene, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 26, 1979
• Citations: (1979), 21 A.R. 586 (QB)

Wright v. Koziak (1979), 21 A.R. 586 (QB)

MLB headnote and full text

Wright, Danson and Sanborn v. Koziak and Albrecht

(114925)

Indexed As: Wright, Danson and Sanborn v. Koziak and Albrecht

Alberta Court of Queen's Bench

Judicial District of Edmonton

Dechene, J.

October 26, 1979.

Summary:

This case arose out of an application by a defeated candidate and two electors for a declaration that the election of a candidate in the provincial election be declared void. The applicants alleged inter alia that university students were not enumerated, electoral divisions were improperly subdivided, polling places were not within their subdivisions, proclamation requirements were not met and improper procedures were used in voting by people in treatment centres.

The Alberta Court of Queen's Bench dismissed the application. The Court of Queen's Bench found that the only breaches of the Election Act which occurred were the failure to obtain written certification of the capacity of voters in treatment centres and the exclusion of persons, who were entitled to be present while an incapacitated voter cast his ballot. The Court of Queen's Bench held pursuant to s. 168 of the Election Act that the breaches were insufficient to ground the invalidity of the election.

Elections - Topic 1

General principles - The Alberta Court of Queen's Bench set out the basic general principles of elections in Alberta - See paragraph 75.

Elections - Topic 2044

Voters - Qualifications - Residence - Ordinary residence - Meaning of - University students - Election Act, R.S.A. 1970, c. 117, s. 17(1)(d) - The Alberta Court of Queen's Bench discussed the meaning of the term "ordinary residence" and held that the ordinary residence of a single university student living on campus was not the campus, but was the home where his parents lived and to which he returned on vacation - See paragraphs 21 to 29.

Elections - Topic 2085

Voters - Voters list - Enumeration - Persons who must be counted - University residents - The Alberta Court of Queen's Bench held that under the Election Act, R.S.A. 1970, c. 117, the electoral officer was not required to enumerate for the voter's list of an electoral division single university students living in campus residences in the electoral division, because the students were not "ordinarily resident" in the division - See paragraphs 6 to 29.

Elections - Topic 3064

Voting and ballots - Place of voting - Notice of - Election Act, R.S.A. 1970, c. 117, s. 13(1)(c) - The Alberta Court of Queen's Bench reviewed and approved the proclamation by the re turning officer of the location of polling places in an electoral division and his subsequent amending proclamation under s. 13(5) - See paragraphs 51 to 58.

Elections - Topic 3066

Voting and ballots - Place of voting - Location of - The Alberta Court of Queen's Bench held that under s. 51(2)(c) of the Election Act, R.S.A. 1970, c. 117 it was permissible for a polling place of an electoral subdivision to be located outside the boundary of the subdivision - See paragraphs 35 to 39.

Elections - Topic 7856

Controverted elections - General - Interpretation of statute - The Alberta Court of Queen's Bench held that the controverted Elections Act, R.S.A. 1970, c. 66 should be construed strictly and that the courts should not interfere with an election without clear statutory authority - See paragraphs 48 to 49.

Elections - Topic 7915

Controverted elections - Invalidity - Grounds - Curing of - Election Act, R.S.A. 1970, c. 117, s. 168 - The Alberta Court of Queen's Bench refused to set aside an election on the grounds that persons were excluded, who were entitled to be present while an incapacitated voter cast his ballot, and written certification of the capacity of certain electors was not obtained, both of which were violations of the Election Act - The Court of Queen's Bench in deciding that the breaches were not sufficient to set aside the election discussed the application of s. 168 of the Election Act in curing such defects - See paragraphs 59 to 71.

Elections - Topic 8006

Controverted elections - Provincial - Judicial review - Jurisdiction - The Alberta Court of Queen's Bench held that the failure of a returning officer to enumerate voters was not a part of an election and was therefore not a ground for having an election declared invalid under the controverted Elections Act, R.S.A. 1970, c. 66 - See paragraphs 46 to 47.

Cases Noticed:

Thomson v. M.N.R., [1946] S.C.R. 209, appld. [para. 22].

McPherson v. McPherson (1976), 13 D.L.R.(2d) 33, appld. [para. 24].

Hardy v. Hardy (1969), 2 D.L.R.(3d) 307, appld. [para. 24].

Marsellus v. Marsellus (1970), 13 D.L.R.(3d) 383, appld. [para. 24].

Lamb v. McLeod, [1932] 1 W.W.R. 206, appld. [para. 49].

Melnychuk v. Heard (1963), 45 W.W.R.(N.S.) 257, appld. [para. 69].

Woodward v. Sarsons and Sadler; Birmingham Municipal Election (1875), L.R. 10 C.P. 733; 44 L.J.C.P. 293, appld. [para. 69].

Rex, ex rel. McClellan v. Clay, [1945] 4 D.L.R. 424; [1945] 2 W.W.R. 193, appld. [para. 75].

Statutes Noticed:

Controverted Elections Act, R.S.A. 1970, c. 66, sect. 2(b) [para. 46].

Election Act, R.S.A. 1970, c. 117, sect. 3(3) [para. 14]; sect. 13 [para. 51]; sect. 13(5) [para. 53]; sect. 15(1)(b) [para. 13]; sect. 17, sect. 18 [para. 18]; sect. 18(2) [para. 61]; sect. 37 [para. 55]; sect. 51(2)(c) [paras. 36, 38]; sect. 51(6),(7) [para. 56]; sect. 66 [para. 19]; sect. 84(2) [para. 60]; sect. 168 [para. 68].

Counsel:

J.C. Robb and T.J. Christian, for the petitioners;

Harvie Irving, Q.C. and John Hill, for the respondent Koziak;

J.E. Redmond, Q.C., for the respondent Albrecht.

This case was heard at Edmonton, Alberta, before DECHENE, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on October 26, 1979: