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Introduction
The Supreme Court of Canada (“SCC”) has heard the appeal from the judgment in Anglin v Resler, 2024 ABCA 113, leave to appeal to SCC granted (41298) [Anglin]. This case is a high-stakes appeal from a motion to strike as it raises a single issue affecting Canadian voters and the integrity of elections: whether a defeated candidate can bring a tort claim against an election official based on an allegation that the candidate lost the opportunity to win the election due to the conduct of the election official.
Legislative Background
The Election Act, RSA 2000, c E-1 sets out the law governing provincial elections in Alberta. Relevant provisions include: providing a general immunity to the Chief Electoral Officer (“CEO”) as long as they exercise their powers in good faith (section 5.1 of the Election Act), and the controverted election process, under which an applicant can seek a declaration that an election is void by reason of “undue return or undue election of a candidate” (section 185(1) of the Election Act). “Undue return” and “undue election” are not expressly defined in the Election Act.
Facts
Mr. Anglin is a former member of the Legislative Assembly of Alberta who was defeated in the 2015 provincial election. During the election campaign, members of the public filed complaints about Mr. Anglin’s re-election signs. Mr. Resler, in his capacity as CEO, caused the removal of Mr. Anglin’s re-election signs, and issued a $250 fine on grounds that he was not entitled to identify himself as “MLA”, and that the sponsorship information was too small. Mr. Anglin appealed this decision but was unsuccessful. The CEO also issued an additional $500 fine based on an investigator’s report, finding that Mr. Anglin failed to take reasonable steps to protect the list of electors. Mr. Anglin appealed this decision as well and was successful. The appeal judge found that the CEO did not err in arriving at this conclusion, but set aside the penalty because the CEO had failed to provide Mr. Anglin with the investigator’s report (Anglin, paras 2-8).
This Proceeding
Once the provincial election results were declared and writ returned, Mr. Anglin did not contest the validity of the outcome under the controverted election process in the Election Act. Two years later, however, Mr. Anglin brought this lawsuit against the CEO and other defendants, alleging the CEO worked with others to deny him a fair chance to be re-elected. He alleges the defendants “singled out” and removed his signs even though “there was no law” that substantiated the non-compliance. He further argues that the CEO exercised “malicious prosecution, abuse of public office and abuse of process” by engaging in “prosecutions” (the administrative penalty proceedings) against him after the election. He seeks at least $1.2 million in the form of damages for the signs taken or destroyed, the time spent replacing signs, loss of chance of being re-elected due to the wrongful interference with the election, loss of future employment, harm to reputation, damage to his self-esteem and emotional well-being, as well as an additional $1 million in punitive damages (Anglin, ABKB, para 6).
Judicial History
The CEO moved to strike Mr. Anglin’s statement of claim under rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 on grounds that the claim discloses no reasonable claim or constitutes an abuse of process. In the alternative, the CEO moved for summary judgment under rule 7.3(1)(b) of the Alberta Rules of Court (Anglin, para 10).
The Motion to Strike
The chambers judge struck Mr. Anglin’s entire statement of claim on grounds that his lawsuit disclosed no reasonable claim and was an abuse of process because it should have been brought under the controverted elections process instead (for which the limitation period has passed). The chambers judge determined that the claim is in large part an attempt to bypass the (applicable) controverted-elections process. He concluded that Mr. Anglin’s allegations of malicious prosecution, abuse of public office or abuse of process could not stand because prior judgments regarding the non-compliant signs and list of electors had established that the CEO was not acting unreasonably (Anglin v Resler, 2022 ABQB 477).
Decision
The ABCA allowed the appeal of the decision of the chambers judge in part, upholding the motion to strike order with respect to the malicious prosecution allegation but not others. This article focuses only on the motion to strike order, as the CEO did not appeal the portion of the judgment regarding the case management procedural orders to the SCC.
The Majority Reasons
Justices Slatter and Woolley held that the portions of the statement of claim alleging malicious prosecution were properly struck because it would amount to a relitigation of the issues in the prior proceedings (Anglin, paras 53-61). Regarding allegations of misfeasance in public office, the majority held that those portions of the statement of claim should not be struck, rather, the pleadings should be amended to include particulars (Anglin, paras 62-69). The majority added that a claim for trespass to chattels could also be substantiated as one particular of the misfeasance in public office claim in relation to damage and removal of the signs (Anglin, para 70).
Justices Slatter and Woolley held that the “loss of chance claim” (characterized as a collateral attack of the outcome of the election by the chambers judge) was erroneously struck because the Election Act does not preclude this claim. The majority arrived at this conclusion by finding that Mr. Anglin does not seek an order that the election be declared void (which is subject to the controverted elections process under the Election Act), but rather, seeks damages on grounds that he lost the chance to win the 2015 election as a result of the CEO’s conduct during the election campaign (Anglin, paras 48-52).
The Concurring Reasons
Justice Wakeling upheld the chambers judge’s decision to strike out the malicious prosecution claims based on the outcome of the prior judgments concerning the administrative penalties. Regarding the claim for misfeasance in a public office, Justice Wakeling wrote that neither of the judges hearing the appeals from the administrative penalties determined the state of mind of the CEO when he performed the allegedly tortious acts, as a result, those appeals are not dispositive of the motion to strike the misfeasance in a public office claim. Regarding the collateral attack of the outcome of the election, Justice Wakeling agreed with Justices Slatter and Woolley that Mr. Anglin’s statement of claim does not seek a declaration to set aside the election, as a result, he concluded that tort claims against the CEO is separate from the controverted elections process under the Election Act (Anglin, paras 79-281).
Analysis
The Issue
The issue on appeal is far from clear. The CEO argues that the main issue on appeal is “whether an unsuccessful candidate for election can bring a private action against an election officer for the loss of chance of being elected” (Appellant Factum, para 36). However, this issue only touches on the loss of chance claim and does not address the claims for hurt reputation or punitive damages. As a result, even if the issue as characterized by the CEO is answered in his favour, it is not dispositive of the entire appeal. Mr. Anglin characterizes the issue as being “about misfeasance in a public office and Charter rights, and in particular about the remedies that flow from the breach of these rights” (Respondent Factum, para 54). However, the Charter argument had not been raised at the motion or on appeal (unless it was raised in argument despite being absent from the judgments). Mr. Anglin raises a novel claim that the conduct of the CEO amounted to a breach of his right to freedom of expression under section 2(b) and democratic rights under section 3 of the Charter of Rights and Freedoms (“Charter”) (Respondent Factum, para 65). It will be interesting to see whether the SCC chooses to discuss this novel claim or the availability of Charter remedies in its reasons, or whether the Court will ignore it on the basis that it is irrelevant or lacks an evidentiary record.
The Tension
It is expected that the Court will apply the modern approach to statutory interpretation to determine whether the legislation precludes actions in tort against the CEO. The Act expressly immunes the CEO from claims where the CEO acted in good faith. This implies that the CEO remains exposed to claims arising from allegations of bad faith. However, allowing tort claims to be brought against a CEO is inherently problematic. First, it could be viewed as a measure that bypasses the controverted elections process. If tort claims that seek damages for the lost opportunity to win the election are allowed, the judge would have to decide whether the election results would have been different had the tortious acts not occurred. This inquiry resembles that of the controverted elections process, with the benefit of avoiding the statutory 30-day limitation period in the controverted elections process. Another consequence would follow: the ability to challenge the election process long after the assembly was created and dissolved would undermine the election outcome. This outcome would question the legitimacy of the assembly.
A Potential Solution
To address the above tension, the interpretation of “undue election or undue return” under the controverted elections process becomes critical. The chambers judge held that “undue election” is not limited to “ballot stuffing” and includes the overall administration of the election, including the election process (Anglin, ABQB, paras 26-27). The CEO argues that “undue election” is an open-ended concept for “any type of wrongdoing” (Appellant Factum, para 23). The respondent does not raise this point in his factum. If the SCC prescribes a broad meaning to “undue election or undue return” that includes the fairness of the election process, the answer to the issue on appeal becomes clear: individuals cannot bring actions against the CEO to challenge the process or outcome of the election outside the controverted elections process. This statutory interpretation would be consistent with the context surrounding the controverted elections process within the broader legislative scheme: It would allow tort claims to be brought against a CEO where the claim concerns bad faith conduct that falls outside the process or outcome of an election. Further, from a policy perspective, such an interpretation would avoid the uncertainty associated with tort claims brought long after the assembly has dissolved as the statutory limitation period in the controverted elections process would apply.
Conclusion
For the public, the outcome of this appeal is significant as it may open a door to challenge elections beyond the limitation period set out in the Election Act. However, for litigators, the lengthy debate over whether the statement of claim discloses various causes of action or merely lacks particulars serves as a valuable reminder: the best practice in drafting pleadings is to clearly identify the cause of action to avoid time-consuming and expensive litigation that further consumes judicial resources.