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GOVERNMENT - Council members - Contested elections - Influence

Friday, April 26, 2019 @ 6:14 AM  

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Appeal by H from an order of a special chambers judge dismissing his fiat application authorizing him to apply for an order in the nature of quo warranto challenging the legality of an election. The appellant was a candidate for Mayor in a municipal election. The appellant argued that the successful candidate was guilty of undue influence because he engaged in intimidation aided by a fraudulent device or contrivance through comments he made in publicly-accessible Facebook videos during a campaign rally to an audience of supporters, and during a radio interview whose primary audience was said to be the Punjabi Sikh community. The appellant argued these comments constituted undue influence and that he had shown reasonable grounds for supposing that the election was not legal. The special chambers judge found the appellant had failed to establish a reasonable ground to suppose that the candidate was guilty of undue influence, whether by intimidation, a fraudulent device, or contrivance. She found there was no evidence before her that the candidate’s comments interfered with anyone’s right to exercise the vote in accordance with his or her own free will.

HELD: Appeal dismissed. There was simply no evidence that the candidate restrained the liberty of a voter to compel or frighten him into voting or abstaining from voting otherwise than as he freely willed. The special chambers judge’s view that the appellant failed to show undue influence by intimidation for the purposes of s. 117(a)(iii) of the Local Authorities Election Act was not overly narrow as applied to the facts before her. The special chambers judge made no palpable and overriding error in this finding. There were no reasonable grounds to suppose that the candidate frightened anyone or compelled anyone to vote against his or her own free will, and there was no reasonable basis to conclude that the description of his opponents as racists and haters interfered with the free exercise of anyone’s franchise rights. The appellant adduced no evidence on the record showing the necessary elements of undue influence of the Act to provide reasonable grounds for supposing the election was illegal or invalid.

Heather v. Nenshi, [2019] A.J. No. 355, Alberta Court of Appeal, J.D.B. McDonald, S.J. Greckol and D. Pentelechuk JJ.A., March 26, 2019. Digest No. TLD-April222019010