Bedford (Town) v. Law Amendments Committee

Bedford (Town) v. Law Amendments Committee Court Court of Appeal Date 1993-04-22 Citation 1993 NSCA 3 Docket SCA 02829 Judge/Registrar/Adjudicator Freeman, Gerald B. (Honourable Justice) (CA) Document Type Decision Decision Content S.C.A. No. 02829 NOVA SCOTIA COURT OF APPEAL Cite as Bedford (Town) v. Law Amendments Committee, 1993 NSCA 3 B E T W E E N: TOWN OF BEDFORD, PEERLESS SUBDIVISION ) R. Barry Ward and AREA RESIDENTS ASSOCIATION; ) for applicants SANDY LAKE RATE PAYERS ASSOCIATION ) ) applicants ) ) - and - ) ) LAW AMENDMENTS COMMITTEE ) Graham D. Walker, Q.C., ) Reinhold M. Endres, Q.C., and respondent ) Louise Y. Poirier ) for respondent ) ) ) ) Application Heard: ) April 21 and 22, l993 ) ) ) ) Judgment Delivered: ) April 22, 1993 ) ) ) BEFORE THE HONOURABLE MR. JUSTICE GERALD B. FREEMAN IN CHAMBERS FREEMAN, J.A.: This is a chambers application involving the voting rights of 400 residents of the Town of Bedford, N.S. in the provincial election which has been called for May 25, 1993. The applicants assert the area where the voters reside was unlawfully added to the Sackville-Beaverbank riding; they seek extraordinary relief from the court that would stay the election in the two ridings affected until the issues can be resolved. Historically, Bedford voters were divided between two provincial ridings. Bedford became an incorporated town in 1980. A boundary review commission which reported to the Law Amendments Committee of the House of Assembly in 1991 in connection with a province-wide redistribution recommended that all Bedford residents vote in the new riding of Bedford-Fall River. In the ensuing process, involving public hearings and deliberations of the house, Bedford voters living northwest of Highway 102 were again severed from Bedford with the intention that they be joined to the Sackville-Beaverbank riding. When an Act amending the House of Assembly Act, R.S.N.S. 1989, c. 210, the statutory vehicle reflecting the redistribution, was passed by the house, the area west of Highway 102 was deleted from the Bedford-Fall River district but it was not added to the Sackville-Beaverbank district. When the omission became known the Law Amendments Committee, purporting to be acting under the authority of the Statute Revision Act, R.S.N.S. 1989, c. 443 conducted a revision of the House of Assembly Act in which the Bedford West area was added to the description of Sackville-Beaverbank. This was challenged by the applicants, who brought action against the Law Amendments Committee claiming it had exceeded the jurisdiction provided by the Statute Revision Act. Application was made to the Supreme Court for: a. A Declaration that Chapter 1 of the 1992 Supplement to the Revised Statutes, 1989, being and purporting to be a consolidation and revision of the House of Assembly Act, R.S.N.S., 1989, c. 210, as amended is ultra vires; or, in the alternative b. A Declaration that portions of that Revision are ultra vires; and, c. A declaration that the Law Amendments Committee has exceeded its legal authority in effecting certain revisions to the House of Assembly Act aforesaid, and has acted ultra vires that authority under the provisions of the Statute Revision Act, R.S.N.S. 1989 c. 443 . . . The applicants' action was dismissed by Mr. Justice Walter Goodfellow of the Supreme Court. The applicants appealed and the matter has been set down for hearing by this court on its merits on October 8, 1993. By interlocutory notice dated April 16, 1993, the appellant applicants made a chambers application to this court for the following relief: (a) A stay of proceedings, under Rule 62.10, with respect to the fixing of a date of the writ of General Election for the Provincial Constituencies of Sackville-Beaverbank and Bedford-Fall River as may be ordered pursuant to s. 10 of the Elections Act R.S.N.S., 1989, c. 140; and (b) A stay of proceedings, under Rule 62.10 with respect to the issuance, by the Chief Electoral Officer, of election writs, for the Provincial Constituencies of Sackville-Beaverbank and Bedford Fall River, pursuant to s. 11 of the Elections Act, R.S.N.S. 1989, c. 140. Pending and Subject to the disposition and decision of this Honourable Court of the within Appeal set for October 8, 1993, at the hour of 10:00 o'clock in the forenoon; or In the alternative; (a) An order permitting and directing all electors resident within the area known as Bedford West to vote in the Provincial Constituency of Bedford-Fall River with respect to any general Provincial Election ordered pursuant to s. 10 of the Elections Act prior to the disposition and decision of this Honourable Court in the within Appeal aforesaid; or (b) Such other relief or terms as to this Honourable Court deems just, inclusive of relief under s. 24 of the Canadian Charter of Rights and Freedoms; and/or the Judicature Act, R.S.N.S. 1989, c. 240, and/or; (c) Directions. The election was called on May 16 after the notice was filed and the writs have been issued. No relief is now available on the matters applied for under the first alternative. In any event, a stay of execution under Rule 62.10 is intended to operate with respect to an order or judgment of the court, not with respect to a dismissal of a claim. As counsel for the respondents pointed out, "there is nothing to stay" pursuant to s. 62.10. The applicants seek to have the election postponed in the two constituencies pending resolution of the legal issues. The relief sought by the applicants would therefore have to be found in a remedy analogous to both a stay and an injunction. The inherent jurisdiction of the court would have to be invoked. The reference to s. 24 of the Canadian Charter of Rights and Freedoms raises the possibility of a Charter remedy, but the constitutional issue was not before the trial court. Even if the appeal were to be heard prior to the election, and allowed to the extent that correction of the statute by revision was found to be ultra vires, the House of Assembly has been dissolved for the election and the 400 affected voters could be disenfranchised in the absence of some extraordinary remedy. The affidavit of Gloria Lowther, filed in support of the present application, contains references to matters not before the trial court which I cannot properly entertain. However, the constitutional issue is a presence in the background of this application and I quote the following from her affidavit to bring it into context: "11. That as a component part of the Town of Bedford, I, on behalf of myself as an elector and as a Chair of the Peerless Subdivision and Area Residents Association, say that the communities of interest of the residents and electors of Bedford West are with the Town of Bedford and not Sackville-Beaverbank, with which electoral district Bedford West has no commercial or social interaction, geographic interrelationships and connections and no commonality of issues and concerns. Bedford West and Sackville-Beaverbank, simply abut on a map, and have no community of interests which I can identify." This suggests that an arguable issue might exist under s. 3 of the Canadian Charter of Rights and Freedoms, which provides: 3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. Section 3 was considered by the Supreme Court of Canada in Reference re: Electoral Boundaries Commission Act ss. 14, 20 (Sask.) (1991) 81 D.L.R. (4th) 16 in which McLachlin J. wrote on behalf of a majority of the court: "It is my conclusion that the purpose of the right to vote enshrined in s. 3 of the Charter is not equality of voting power per se, but the right to "effective representation". . . . Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure that our legislative assemblies effectively represent the diversity of our social mosaic." The issue before the trial court, and the issue on appeal, is the narrow one of whether the Law Amendments Committee was justified in adding Bedford West to Sackville-Beaverbank by way of a statutory revision. If that appeal succeeds constitutional arguments may well be made later in the course of arriving at a solution. However, I accept the argument of counsel for the respondent and the Attorney General that the constitutional matter is not properly before me on this application. Therefore a Charter remedy is not available. When dealing with a subject as important as the democratic right to vote, however, a court should take a broad and flexible view of technical and procedural matters and seek a means of giving effect to the rights of citizens. As the applicants point out, the appeal will either be dismissed or allowed. If it is dismissed, all concerned parties are best served by letting events run their course. If the appeal is allowed, it does not necessarily follow that the results of the election scheduled for May 25 would be invalidated. The House of Assembly Act may be found to give Bedford West voters their voting rights in Sackville-Beaverbank in any event. A legal or political remedy may be found that would not invalidate the election in either or both of the two ridings affected. It is only if the appeal is allowed and the election must be invalidated as a result that the benefits envisioned by the applicants for the remedy they seek would have any real effect. While this is not a situation where a stay of execution under Rule 62.10 is appropriate, I would nevertheless apply the test set forth by Mr. Justice Hallett in Fulton Insurance, 100 N.S.R., (2d) 341 at pp. 346-347, set forth in paragraphs 29 and 30. " (1) satisfy the Court on each of the following: (i) that there is an arguable issue raised on the appeal; (ii) that if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm that it is difficult to, or cannot be compensated for by a damage award. This involves not only the theoretical consideration whether the harm is susceptible of being compensated in damages but also whether if the successful party at trial has executed on the appellant's property, whether or not the appellant if successful on appeal will be able to collect, and (iii) that the appellant will suffer greater harm if the stay is not granted than the respondent would suffer if the stay is granted; the so-called balance of convenience or: (2) failing to meet the primary test, satisfy the Court that there are exceptional circumstances that would make it fit and just that the stay be granted in the case." There is an arguable issue raised but I am not satisfied with respect to either the second or third criteria, that is, whether irreparable harm is likely to be caused, or whether the applicants meet the balance of convenience test. While uncertainty with respect to an election is undesirable, it is not unknown, and there are statutory remedies when an election is overturned. Given that the election will not necessarily be overturned even in the event of a successful appeal, I must find against the applicants on the balance of convenience. The matter has been ably argued by all parties and I am grateful to counsel for their assistance. However after considering all submissions I am left with the problem that the relief sought affects persons not before the court, and that it involves issues not raised by the appeal. I considered the motion for the applicants to add the Attorney General and the Chief Electoral Officer to the parties, but I am dismissing it on the ground that it is not adequate at this stage to overcome these difficulties. My own jurisdiction is not the least of the problems; as a chambers judge I consider it beyond my jurisdiction to invoke the inherent jurisdiction of the court. Counsel did not consider it practicable, given the time pressures involved, to seek to have the application heard before a panel of the court. After carefully reviewing the evidence and materials before me, and after hearing the helpful submissions of counsel both at the pre-hearing conference and upon the present application, I have concluded that I must dismiss the application, but without costs. Freeman, J.A. S.C.A. No. 02829 NOVA SCOTIA COURT OF APPEAL B E T W E E N: TOWN OF BEDFORD, PEERLESS SUBDIVISION ) REASONS FOR and AREA RESIDENTS ASSOCIATION; ) SANDY LAKE RATE PAYERS ASSOCIATION ) JUDGMENT BY: ) applicants ) FREEMAN, J.A. ) - and - ) (IN CHAMBERS) ) LAW AMENDMENTS COMMITTEE ) ) respondent )