QB 1997 No. 235 J.C.M. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF MELFORT BETWEEN: Clifford Ray, of the Northern Village of Sandy Bay, in the Province of Saskatchewan Relator/Proposed v. Norman Nateweyes, Mary Lou Shinglar, Robert R. Ray, Daniel M. Bear, Tony Bear, Garry S. Morin and Frank Richard of the Northern Village of Sandy Bay, in the Province of Saskatchewan Proposed Respondents C. Neely for the Applicant S. Eisner for the Respondents FIAT ROTHERY J. January 21, 1998 The applicant, Clifford Ray, commenced an applicationpursuant to s.19 of The Controverted Municipal Elections Act(the "Act") following the municipal election for mayor andcounsellors at the Northern Village of Sandy Bay,Saskatchewan, on October 22, 1997. The applicant showed reasonable grounds for contestingthe validity of the election and the Chambers judge grantedthe fiat to allow the applicant to serve the notice of motionto determine this matter. The application under s.19(1) of the Act was filed on December 8, 1997, and the fiat was granted on the same day. The service of the notice of motionupon all respondents was made within two weeks of the date ofthe fiat. But, counsel for the respondents argues that I have nojurisdiction to deal with the motion because the applicant hasmissed the limitation period for bringing this application. Section 19(1) of the Act states the application to the judgemust be brought "within six weeks after an election." Counsel for the respondents calculates the election to be October 22, 1997. The fiat was granted December 8, 1997, forty-seven dayslater. That is beyond the time limit. Counsel for the applicant responds that the application iswithin the time limit because the time limit does not commenceuntil after completion of the judicial recount provided by s.126-128 of The Local Government Election Act. Grostky J. completed his judicial recount on October 30, 1997. Thus, period of thirty-eight days had elapsed, which is within the time limit of s.19 of the Act. Counsel refers to the case of Regina ex rel. Fraser v. Tuckey, 1974 CanLII 297 (AB QB), [1975] W.W.R. 191 (Alta D.C.) in support of the proposition that the election means the voting and completion of the counting. Tuckey is authority for interpreting the word "election" in s.19(1) of the Act to mean not only the completion of the voting, but the completion of the counting. But, Tuckey is also authority for the proposition that the completion of voting does not include the judicial recount. The Alberta legislation allowed for recount by the returning officer because the first vote resulted in tie. The Alberta court ruled that the time does not commence to run until that returning officer's recount is completed. Saskatchewan's legislation is somewhat different. If the voting results in tie, the returning officer directs person to pull the name "out of hat" from choice of candidates with an equal number of votes. This is provided by s.111 of The Local Government Election Act. But, in this case, no candidates had an equal number of votes when the returning officer counted them. The Local Government Election Act states when the election is complete. It is when the returning officer has declared the results of vote in accordance with s.109 of that Act. It is not only the starting point for determining the limitation period under The Controverted Municipal Elections Act, but also the limitation period for seeking judicial recount under 126 128 of The Local Government Election Act. The legislation is clear. Section 103 of The Local Government Election Act states the deputy returning officer shall count the vote and provide prescribed statement of results. Section 109 provided that the returning officer shall, at the time and place appointed for that purpose, declare the persons elected and post prescribed declaration of results. The prescribed statement of results for s.103 was dated October 22, 1997. However, I have no evidence before meof the date the returning officer declared the results of thevote in accordance with s.109. If the returning officerdeclared the results on October 22, 1997, that date is thecommencement of the six week limitation period. Theapplication is out of time. Before disposing of the matter, I grant counsel leave tofile further affidavit material proving the date the returningofficer declared the results of this vote. It is that datewhich is crucial in calculating the time limit for thisapplicant. If it is sometime after October 22, 1997 and within the time period as have interpreted the legislation, this matter is to be brought back before me.
The applicant commenced an application pursuant to s19 of the Controverted Municipal Elections Act following the municipal election for mayor and counsellors at the village of Sandy Bay. The Chambers judge granted the fiat to allow the applicant to serve the notice of motion and service was made within two weeks of the date of the fiat. The respondents argued there was no jurisdiction to deal with the motion because the applicant had missed the limitation period for bringing this application as s19(1) of the Act states the application must be brought within six weeks after the election. The fiat was granted beyond the time limit forty seven days later. The applicant argued the time limit did not commence until after the completion of the judicial recount provided by s126-128 of the Local Government Election Act. HELD: 1)Leave was granted to file further affidavit material proving the date the returning officer declared the results of the vote which was the crucial date for calculating the time limit for this application.  2)The legislation is clear. Section 103 of the Local Government Election Act states the deputy returning officer shall count the vote and provide a prescribed statement of results. 3)There was no evidence of the date the returning officer declared the results of the vote in accordance with s109. If the returning officer declared the results on October 22/97, that date is the commencement of the six week limitation period and the application would be out of time.