9.13: Re-opening case

Case Summary

On January 31, 2017, the Respondent, the Chief Electoral Officer, found the Applicant had breached section 19.1 of the Election Act, RSA 2000, c E-1 (the “Act”) and imposed an administrative penalty of $500 under section 153.1 of the Act. The Applicant then brought an Application appealing the Respondent’s decision on administrative grounds and challenging the constitutionality of the Respondent’s authority to impose a penalty. The administrative law arguments were heard January 23-24, 2020, and the constitutional arguments were to be heard April 16-17, 2020, before they were adjourned sine die due to the COVID-19 pandemic.

On March 23, 2020 Justice Ross rendered a Decision on the administrative arguments: (1) dismissing the grounds of appeal alleging palpable and overriding error on the part of the Respondent, error of the Respondent in their interpretation of section 19.1 of the Act, and bias; and (2) determining that the ground of appeal alleging a lack of procedural fairness had been made out, and that the appropriate remedy was to remit the decision back to the Respondent for further consideration. The Minister of Justice and Solicitor General of Alberta, an Intervener on the constitutional challenge, intended to bring an Application declaring the Applicant’s constitutional challenge moot due to the administrative law Decision. The Applicant then applied for reconsideration pursuant to Rule 9.13 — this was a Decision arising from both of those Applications.

The Applicant sought reconsideration of Justice Ross’ determination that the Respondent did not make a palpable and overriding error. Her Ladyship determined that the Applicant’s arguments on this point were in essence a “second kick at the can” and declined to reconsider.

The Applicant also sought a reconsideration of the remedy and argued that Justice Ross did not consider section 153.3 of the Act. Section 153.3 arose from amendments that took place in 2017 after the Applicant commenced their Appeal. At the conclusion of the hearing on the administrative law arguments, Justice Ross noted that she would allow the parties to address a remedy following an adjournment but overlooked this when she issued her first Decision. Her Ladyship noted that failing to consider the applicability of section 153.3 of the Act was an objectively demonstrable error and there was an issue of fairness as the parties were advised they would have an opportunity to address remedy but were not granted that opportunity. As such, Justice Ross determined that the issue of a remedy could appropriately be reconsidered under Rule 9.13. Her Ladyship found that as section 153.3 of the Act dealt with procedure, there was an exception to the presumption against retrospectivity and section 153.3 of the Act did apply. As such, Justice Ross found that the appropriate remedy in this case was to rescind the administrative penalty.

Regarding the Application of the Minister of Justice and Solicitor General of Alberta, Justice Ross agreed that the constitutional challenge was moot — especially so after the recission of the administrative penalty as there was no live controversy. Her Ladyship declined to exercise her discretion to consider the moot constitutional Application.

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