Federal Court : August 11 2009

http://decisions.fct-cf.gc.ca/fr/2009/2009cf812/2009cf812.html

Roger Collard v. La présidente d'élection du Conseil de Bande de Betsiamites et Paul

Vollant et Raphaël Picard, 2009 CF 812

The Federal Court dismissed the Defendants' motion to strike the application for judicial review arising from a challenge to a Ban election.

The Plaintiff, Roger Collard, presented his candidacy for vice-chief in the Betsiamites Band elections, which he subsequently lost. The Plaintiff later alleged that, approximately nine months later, he was informed by members of the Band that the Defendants, Paul Vollant and Raphaël Picard, had solicited votes for the August election by bribing members of the Band with money and beer. The Plaintiff filed an application to contest the legality of the election in accordance with the Band electoral Code. The Plaintiff was then informed by the chief electoral officer of the Band that his application had been denied because the time limit set out in the Code for such an application had expired. Section 8.1 of the Code provides that an application to contest an election must be filed within 14 days of the election in order to be accepted and conform to Band custom. The Plaintiff filed a notice of application for judicial review.

The Defendants sought to have the Court strike the application on the grounds that the courts have recognized that a time limit to contest an election set out in an electoral code cannot be extended unless provided for in the code itself.

The Plaintiff submitted that it could not have been the intention of the legislator to allow a corrupt election to stand. Such a result would be absurd, irrational, unjust and unreasonable.

The Court began by noting that the test to be applied to motions to strike a pleading is whether it is "plain and obvious" that the plaintiff's pleading discloses no reasonable claim.1 It further stated that "even though it is important that futile claims not be carried forward to trial, it is still the rare case where a judge is prepared to strike out a pleading".2 Taking into account the heavy burden of proof that lies on the Plaintiff as well as the principle that the notice of application should be read as generously as possible, 3 the Court found that there was an insufficient basis to conclude that the Plaintiff's claim was incapable of success.

The Court did agree with the Defendants that it could not overrule the chief electoral officer's decision. The Court stated that even a large and liberal interpretation of the Code does allow for the possibility of extending the time limit to contest the election. It quoted the Supreme Court's decision in R. v. Multiform Manufacturing Co. where it was said that "[w]hen the words used in a statute are clear and unambiguous, no further step is needed to identify the intention of Parliament".4

The Plaintiff had also claimed, however, that an error of law was committed and that there was a reasonable apprehension of bias on the part of the chief electoral officer. The Court did not believe that it was plain and obvious that these claims could not amount to a cause of action. Therefore, it would not be appropriate to strike the application.