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A-31-80
Jean-Marc Hamel (Appellant) v.
Union Populaire and Henri Laberge (Respond- ents)
Court of Appeal, Pratte J. and Hyde and Lalande D.JJ.—Montreal, January 25 and 26, 1980.
Prerogative writs — Mandamus — Elections — Respondent Union Populaire was deleted from the registry of political parties because of failure to file information required by s. /3(7) of the Canada Elections Act within deadline, and because information filed was incomplete — Appeal from Trial Division's decision ordering appellant to exercise his discretion under s. 4(2) of the Act, and to cancel, if he sees fit, the deletion of Union Populaire — Appeal allowed on grounds that there was no evidence that appellant refused to exercise the discretion conferred on him by s. 4(2) of the Act — Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, ss. 4(2), 13(1), ( 7 ), ( 8 ).
The Union Populaire was a political party registered under subsection 13(1) of the Canada Elections Act when in Decem- ber 1979, general elections were ordered to be held on February 18, 1980. The appellant informed the head of Union Populaire of the need to submit a statement confirming or bringing up to date the information relating to his party contained in the registry of political parties, not later than December 31, 1979 (the enumeration date), pursuant to subsection 13(7) of the Canada Elections Act. Although a letter to appellant was posted on December 24, 1979, it was not delivered until Janu- ary 2, 1980. The appellant thereupon notified the head of the party that he had deleted the Union Populaire from the registry of political parties because the information did not reach him until January 2, and because the information was incomplete. The respondents applied to the Trial Division for mandamus, alleging that the appellant's decision was unjust and wrongful, particularly as appellant had the power to extend the deadline. The Trial Division allowed the application and ordered the appellant to exercise his discretion to extend the deadline pursuant to subsection 4(2), and to cancel if he sees fit the deletion of the Union Populaire.
Held, the appeal is allowed. It is assumed that the appellant is subject to the supervision of the courts, and that the decision of the appellant to delete the Union Populaire was improperly made, because one of the two reasons on which it was based (incomplete information) had no legal validity. The appeal is allowed on the basis that an application for mandamus cannot be granted unless it is proven that the person against whom it is directed failed to perform a duty imposed on him by law. 1f such evidence does not exist, the application must be dismissed. Here, the duty which the Trial Judge ordered appellant to carry out is that of determining whether, in the circumstances, it would not be advisable for him to use the power conferred on him by subsection 4(2) to extend the deadline provided for in subsection 13(7). However, there is no evidence in the record
that appellant refused to exercise this discretion. On the con trary if the record discloses anything in this regard, it is that appellant exercised his discretion under subsection 4(2) by deciding not to extend the deadline which respondents wished to see extended. The first part of the judgment must according ly be reversed. The second part of the judgment, which ordered appellant to cancel the deletion of Union Populaire, is perhaps not independent of the first, in which case the second part would also have to be reversed. If the second part of the judgment is independent of the first, it must be quashed for the same reason: it orders appellant to carry out a duty which, on the record, he has never refused to perform.
APPEAL. COUNSEL:
G. Beaudoin, Q.C. and M. Pharand for
appellant.
G. Bertrand for respondents.
SOLICITORS:
Taché & Pharand, Hull, for appellant. Bertrand, Otis & Grenier, Quebec City, for respondents.
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: Appellant is Chief Electoral Officer and his duties are defined by the Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14. Subsection 13(1) of that Act requires him to maintain a registry of political parties. The parties whose names are entered on this registry are the only ones which benefit from the privileges conferred on political parties by the Canada Elections Act. Under subsection 13(8) appellant has the power, in certain circumstances, to delete from the regis try the name of a party entered on it. It was appellant's decision, on January 2, 1980, to delete from the registry the name of respondent Union Populaire, a political party led by the other respondent, Henri Laberge, which gave rise to this proceeding.
The Union Populaire was a political party regis tered under subsection 13 (1) of the Canada Elec tions Act when, in December 1979, general elec tions were ordered to be held on February 18, 1980. On December 14, 1979 appellant wrote to Mr. Laberge, the head of the Union Populaire, a letter from which I need only cite the first paragraph:
[TRANSLATION] I should like to point Out that under subsec tion 13(7) of the Canada Elections Act, the leader of every registered party shall, at a general election, file with the Chief Electoral Officer a statement in writing confirming or bringing up to date the information relating to his party contained in the registry of political parties. This statement must be filed not later than the enumeration date, namely by December 31, 1979 at the latest for the current election.
The wording of subsection 13(7) referred to by this letter is as follows:
13....
(7) At a general election, every registered party that has been registered prior to that election shall, not later than the enumeration date, file with the Chief Electoral Officer a state ment in writing signed by the leader of the party
(a) confirming or bringing up to date the information con tained in the application for registration of the party; and
(b) where the leader wishes to designate representatives to endorse candidates at the election, designating those representatives.I
The sanction for the obligation imposed by this provision is described in paragraph 13(8)(a):
13. ...
(8) The Chief Electoral Officer may, at a general election,
(a) on or after the forty-eighth day before polling day, delete from the registry any registered party that
(i) was not represented in the House of Commons on the day before the dissolution of Parliament immediately preceding the election, and
(ii) has not complied with subsection (7);
We may now return to the facts which give rise to the case at bar.
I In order to understand the expression "enumeration date" used in this provision, it is necessary to read the definition of this expression given by section 2 and also to refer to subsection 18(1). These two provisions read as follows:
2. In this Act,
"enumeration date" means, in respect of an election in an electoral district, the date for the commencement of the preparation of the preliminary lists of electors for that election;
18. (1) The returning officer shall, commencing on Monday, the forty-ninth day before polling day, cause to be prepared in and for his electoral district, and pursuant to this Act, preliminary lists of all persons who are qualified as electors in the urban and rural polling divisions comprised therein.
It is established that the day fixed for polling is February 18, 1980, and that the "forty-ninth day before" that day was December 31, 1979.
On December 24, 1979 respondent Laberge posted in Montreal a letter to appellant; this letter, according to counsel for the respondents, con tained all the information required by subsection 13(7). The letter took some time reaching its destination in Ottawa. It was not delivered until January 2. It is probable that this delay is partly attributable to the fact that appellant's office was closed from 3:30 p.m. on December 31 until the morning of January 2. If on December 31, 1979 appellant's office had remained open until 10:00 p.m., as is usual during an election, it is probable that Mr. Laberge's letter would have arrived at its destination on the evening of December 31. In any case, the letter did not reach appellant until Janu- ary 2, more than a day after the deadline had expired.
On January 2, appellant sent Mr. Laberge the following telegram:
[TRANSLATION] The statement in writing required by section 13(7) of the Canada Elections Act has not been filed by the Union Populaire party within the statutory deadline. This party has accordingly been deleted from the registry of political parties pursuant to section 13(8) of the Elections Act.
On the same day, appellant sent Mr. Laberge a letter from which the following two paragraphs may be cited:
[TRANSLATION] As I indicated in the telegram, your written statement was not filed within the statutory deadline, namely Monday, December 31, 1979. The document did not reach me until today, January 2, 1980. Furthermore, the statement is incomplete as it is not accompanied by a statement in writing signed by the new auditor for your party.
Accordingly, the Union Populaire has been deleted from the registry of political parties and therefore loses all its rights and privileges as a registered party, including the right to sponsor candidates for the current election.
It therefore emerges from this letter, which is confirmed in this respect by the affidavit signed by appellant, that his decision to delete the Union Populaire was taken for two reasons: because the information sent to him did not reach him until January 2 and because this information appeared to him to be incomplete.
This decision by appellant led respondents to submit an application for mandamus to the Trial Division. This application, which is supported by an affidavit signed by Mr. Laberge, first sets forth the facts which I have just stated; it then alleges
that appellant's decision is unjust, unlawful, unrea sonable and wrongful particularly as appellant had, under subsection 4(2) of the Act, 2 the power to extend the deadline fixed for filing information required by subsection 13(7); the application then concludes as follows:
[TRANSLATION] FOR THESE REASONS, MAY IT PLEASE THE COURT:
TO ALLOW this application;
TO ORDER the Chief Electoral Officer, respondent in the case
at bar:
(a) to extend the deadline for submitting the information required to January 14, 1980;
(b) to recognize the UNION POPULAIRE as a registered political party.
The Trial Division allowed this application and made the following order *:
[TRANSLATION] The application is allowed in part and a writ of mandamus shall issue ordering the Chief Electoral Officer to exercise the discretion conferred on him by the provisions of subsection 4(2) of the Canada Elections Act as to the advisabil ity of granting a delay for the statement received from the Union Populaire on January 2 and giving permission for the information required to be completed, and if necessary, to cancel the deletion of the Union Populaire and register it as a political party for the purposes of the said Act .... 3
This is the decision which is the subject of this appeal. 4 In support of the appeal, counsel for the appellant argued that the judgment a quo should be reversed chiefly for three reasons, namely:
2 This provision reads as follows:
4....
(2) Where, during the course of an election, it appears to the Chief Electoral Officer that, by reason of any mistake, miscalculation, emergency or unusual or unforeseen circum stance, any of the provisions of this Act do not accord with the exigencies of the situation, the Chief Electoral Officer may, by particular or general instructions, extend the time for doing any act, increase the number of election officers or polling stations or otherwise adapt any of the provisions of this Act to the execution of its intent, to such extent as he considers necessary to meet the exigencies of the situation.
* [Not distributed—Ed.]
3 Counsel for the parties agreed at the hearing that in this order the expression "s'il se doit" [if necessary] (which means "s'il le faut") was used in the sense of "s'il le juge opportun" [if he sees fit].
4 Respondents indicated, in the prescribed manner, that they also intended to ask for the judgment a quo to be amended. They wished a judgment to be rendered in accordance with their application. However, counsel for the respondents told the Court that his clients wished to discontinue their cross-appeal.
(1) the Chief Electoral Officer is not subject to the control of the courts, but reports only to Parliament;
(2) the decision of appellant to delete the Union Populaire was lawfully made; and
(3) the remedy in mandamus exercised by re spondents is not the appropriate remedy.
This case, which we heard on a few days' notice in view of its urgent nature, raises important and difficult questions. Despite this, the Court must arrive at a decision immediately, since otherwise in view of our prior commitments we would be unable to render judgment for several weeks, at which time our judgment would be devoid of any practi cal effect. It is for this reason that, having been forced to work quickly, I cannot today mention or discuss, as I would like to have done, the persua sive arguments submitted to the Court by Messrs. Beaudoin and Pharand, on the one hand, and Mr. Bertrand, on the other. However, having come to the firm conclusion that the appeal should be allowed, I will confine myself to briefly indicating why. Time does not allow me to do more.
For the purposes of discussion I shall assume that, contrary to Mr. Beaudoin's argument, the Chief Electoral Officer is subject to the supervi sion of the courts. Let me be clear on this: I am making this assumption but I do not wish to express any opinion on this extremely difficult and important point. I will also assume that, as Mr. Bertrand maintained, the decision of appellant to delete the Union Populaire was improperly made. I have no difficulty in making this assumption, though I do not accept all Mr. Bertrand's argu ments in this regard. In such a case the Court cannot, as he invited us to do, rule on whether appellant's decision was fair or unfair. Whether the decision appears to the Court to have been advisable or inadvisable is not significant once it was lawfully taken. I also do not think that Mr. Bertrand was right in arguing that appellant, before deleting the Union Populaire, had to give respondents a chance to explain themselves. In my view appellant had no such obligation. However, if I had to decide on whether the decision made by appellant was proper, I would say that in my view Mr. Bertrand correctly maintained that this deci sion was improper, because one of the two reasons
on which it was based had no legal validity. Thus, it seems to me that, contrary to appellant's belief, respondents did provide him with all the informa tion required by subsection 13(7) and that they were not, under that subsection, required to pro vide him with the statement in writing by the party's auditor referred to in the last part of subsection 13(1). Under subsection 13(7), respondents were required to bring up to date "the information contained in the application for regis tration of the party"; this information is that listed in paragraphs (a) to (h) of subsection 13(1); 5 the auditor's statement is not included in this informa tion. I therefore assume that the decision made by appellant to delete the Union Populaire was improper, in that it was a discretionary decision which was based, in part, on a legally invalid reason.
Although I make these assumptions, which are all favourable to respondents, I have come to the conclusion that the Trial Division's decision should be quashed.
This decision orders appellant to do two things, namely:
(a) to exercise his discretion under subsection 4(2); and
(b) to cancel, if he sees fit, the deletion of the Union Populaire.
5 Subsection 13(1) is as follows:
13. (I) The Chief Electoral Officer shall maintain a registry of political parties and subject to this section shall register therein any political party that files with him an application for registration signed by the leader of the party, setting out
(a) the full name of the party;
(b) the party name or the abbreviation, if any, of the party name to be shown in any election documents;
(c) the name and address of the leader of the party;
(d) the address of the office of the party where records are maintained and to which communications may be addressed;
(e) the names and addresses of the officers of the party;
(/) the name and address of the person who has been
appointed auditor of the party;
(g) the name and address of the chief agent of the party; and
(h) the names, addresses, occupations and signatures of one
hundred electors who are members of the party; and accompanied by a statement in writing signed by the person named pursuant to paragraph (j) stating that he has accepted the appointment as auditor of the party.
I think it is clear that, in the circumstances, the Trial Judge could not order appellant to exercise his discretion under subsection 4(2). An applica tion for mandamus cannot be granted unless it is proven that the person against whom it is directed failed to perform a duty imposed on him by law. If such evidence does not exist, the application must be dismissed. Here, the duty which the Trial Judge ordered appellant to carry out is that of determin ing whether, in the circumstances, it would not be advisable for him to use the power conferred on him by subsection 4(2) to extend the deadline provided for in subsection 13(7). However, there is no evidence in the record that appellant refused to exercise this discretion. On the contrary, if the record discloses anything in this regard, it is that appellant exercised his discretion under subsection 4(2) by deciding not to extend the deadline which respondents wished to see extended. The first part of the judgment must accordingly be reversed for the simple reason that the record does not show that appellant ever refused or failed to do what the judgment ordered him to do.
The second part of the judgment, which ordered appellant to cancel the deletion of the Union Popu- laire, is perhaps not independent of the first. The Judge may have meant that appellant should only consider whether the deletion of the Union Popu- laire should be cancelled in the event that he decided to use his power under subsection 4(2) and to extend the deadline fixed by subsection 13(7). If that is the meaning of the judgment, the validity of the second part would depend entirely on the first, and as this has to be reversed for the reasons which I have stated above, it follows that the second would also have to be reversed. However, the second part of the decision may be independent of the first, and should perhaps be interpreted as being merely an order given to appellant to recon sider his decision, since it was improperly made.
It should be noted that even if appellant's deci sion is regarded as improper for the reason I have given, it does not follow that appellant had a duty to alter his decision. He could decide to uphold the deletion solely on the ground that the information required was delivered to him late. That is clear.
The only duty which appellant had as a result of the fact that the decision was improperly made was that of reconsidering his decision and deciding whether or not he should uphold it. Appellant may have carried out this duty. We do not know. If the second part of the judgment a quo is independent of the first, however, it must be quashed for the same reason: it orders appellant to carry out a duty which, on the record, he has never refused to perform.
For these reasons, I would allow the appeal, quash the judgment of the Trial Division and dismiss the application for mandamus submitted by respondents without costs.
* * *
LALANDE D.J. concurred.
* * *
The following is the English version of the reasons for judgment delivered orally by
HYDE D.J.: I concur with Pratte J., but I do not wish to express any opinion on whether respond ents provided appellant with all the information required by subsection 13(7) of the Canada Elec tions Act.
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