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.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.