A-23-80
Jacques Duguay, official agent of Rodrigue
Chocolat Tremblay, a candidate in the federal
general election of May 22, 1979, in the electoral
district of Saint-Denis (Applicant)
v.
Eliane Renaud, returning officer for the electoral
district of Saint-Denis (Respondent)
Court of Appeal, Pratte and Le Dain JJ., Lalande
D.J.—Montreal, September 10; Ottawa, October
7, 1980.
Judicial review — Elections — Application to set aside
order of Associate Chief Justice of Superior Court in Montreal
— Failure of applicant to file declaration respecting election
expenses — Application made to Associate Chief Justice to
excuse delay pursuant to s. 63(14) of the Canada Elections Act
— Application granted upon condition — Whether Associate
Chief Justice had authority to impose condition — Whether
Court of Appeal has jurisdiction to hear application in view of
s. 96 of B.N.A. Act — Whether a judge is acting qua judge or
as persona designata when making order under s. 63(14) of the
Canada Elections Act — Canada Elections Act, R.S.C. 1970
(1st Supp.), c. 14, as amended, ss. 2, 56(2), 63(3),(9),(14),
(15),(16),(17),(18), 78, 80 — The British North America Act,
1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No.
51, s. 96 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
ss. 2, 28.
The applicant, a candidate in a federal election, failed to
transmit a declaration respecting his election expenses to the
returning officer within the period allowed. As a result, he
sought from the Associate Chief Justice of the Superior Court
in Montreal an order excusing his delay pursuant to subsection
63(14) of the Canada Elections Act. His application was
granted upon condition. Applicant now seeks to have that order
set aside on the ground that the Judge did not have the
authority to impose the said condition. The further question
whether this Court has the jurisdiction to hear this application,
since the order in issue was made by a Judge appointed under
section 96 of The British North America Act, 1867 must also
be answered. In other words, is a judge who makes an order
under subsection 63(14) of the Act acting qua judge or as
persona designata?
Held, the application is dismissed. The Associate Chief
Justice was acting as persona designata and therefore, the
Federal Court of Appeal has jurisdiction. Subsections 63(14),
(15) and (16) of the Canada Elections Act allow the judge not
only to excuse offences against the Act (in circumstances
specified by him), but also to issue proprio motu orders with
which the persons in question must comply on pain of being
guilty of an offence against the Act. These are exceptional
powers that have nothing in common with those exercised by a
judge of the Superior Court on a day-to-day basis. Moreover,
the powers conferred by those subsections are not subject to the
procedure normally followed by the Superior Court. The only
procedural requirements applicable herein are those prescribed
by section 63 of the Act. With respect to the condition, it is one
calculated to carry the objects of the Act in general and of
section 63 in particular into effect. It is therefore a condition
which the Associate Chief Justice had the authority to impose.
Herman v. Deputy Attorney General of Canada [1979] 1
S.C.R. 729, considered.
APPLICATION for judicial review.
COUNSEL:
R. Moss for applicant.
J.-M. Charbonneau for respondent.
SOLICITORS:
Michon, Moss, Moreau & Robillard, Mon-
treal, for applicant.
Roy & Charbonneau, Montreal, for respond
ent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The applicant is asking that a deci
sion made by the Associate Chief Justice of the
Superior Court in Montreal under subsection
63(14) of the Canada Elections Act, R.S.C. 1970
(1st Supp.), c. 14, as amended be set aside.
The applicant stood as a candidate in the federal
election of May 22, 1979. He failed to comply with
subsection 63(3), under which he was required to
transmit a declaration respecting his election
expenses to the returning officer within four
months of the polling day. He did not wish to be
considered guilty of an illegal practice and of an
offence against the Canada Elections Act' as a
result of this, and accordingly applied to the
Associate Chief Justice of the Superior Court in
Montreal under subsection 63(14) to excuse his
delay and allow him to file his declaration late. In
order to understand the nature of this application,
' The consequences of failing to comply with subsection
63(3) are set out in subsection 63(9) and sections 78 and 80.
These provisions read as follows:
63....
(9) Where, without an excuse authorized by this Act, a
candidate or an official agent fails to comply with this
section, he is guilty of an illegal practice and of an offence
against this Act.
(Continued on next page)
it is necessary to consider the provisions in subsec
tions 63(14) et seq., which read as follows:
63....
(14) Where the return and declarations respecting election
expenses of a candidate at an election have not been transmit
ted as required by this Act or, having been transmitted, contain
some error or false statement, then,
(a) if the candidate applies to a judge competent to recount
the votes given at the election and shows that the failure to
transmit such return and declarations or any of them, or any
part thereof, or any error or false statement therein, has
arisen by reason of his illness, or of the absence, death, illness
or misconduct of his official agent or of any clerk or officer
of such agent, or by reason of inadvertence or of any
reasonable cause of a like nature, and not by reason of any
want of good faith on the part of the applicant, or
(Continued from previous page)
78. (1) Except as otherwise provided in this Act, every one
who is guilty of an offence against this Act is liable
(a) on summary conviction, to a fine of not more than one
thousand dollars or to imprisonment for not more than one
year, or to both; or
(b) on indictment, to a fine of not more than five thousand
dollars or to imprisonment for not more than five years, or
to both.
(2) Any candidate at an election or the official agent of a
candidate who commits a breach of any of the provisions of
section 66, 68, 69 or 71 is guilty of a corrupt practice.
80. Any person, who
(a) in any report made to the Speaker of the House of
Commons on an election petition, is named as having been
found guilty of any offence that is a corrupt or illegal
practice, is reported to have been heard on his own behalf
and is declared to be a person who should be expressly
disqualified as hereinafter provided,
(b) is, before any competent court, convicted of having
committed at an election any offence that is a corrupt
practice or illegal practice, or
(c) is, in any proceeding in which after notice of the charge
he has had an opportunity of being heard, found guilty of
any corrupt practice or of any illegal practice or of any
offence that is a corrupt practice or illegal practice,
shall, in addition to any other punishment for such offence by
this or any other Act prescribed, be, for a corrupt practice
during the seven years or for an illegal practice during the
five years next after the date of his being so reported and
declared, convicted or found guilty, incapable of being elect
ed to or of sitting in the House of Commons or of voting at
any election of a member of that House or of holding any
office in the nomination of the Crown or of the Governor in
Council.
(b) if the official agent of the candidate applies to the judge
and shows that the failure to transmit the return and declara
tions that he was required to transmit, or any part thereof, or
any error or false statement therein, arose by reason of his
illness or of the death or illness of any prior official agent of
the candidate, or of the absence, death, illness or misconduct
of his clerk or officer of an official agent of the candidate, or
by reason of inadvertence or of any reasonable cause of a like
nature, and not by reason of any want of good faith on the
part of the applicant,
the judge may, after such notice of the application in the
electoral district and on production of such evidence of the
grounds stated in the application and of the good faith of the
application, and otherwise as to the judge seems fit, make such
order for allowing an authorized excuse for the failure to
transmit such return and declaration, or for an error or false
statement in such return and declaration, as to the judge seems
just.
(15) Where it appears to a judge on hearing an application
pursuant to subsection (14), that
(a) in the case of an application by a candidate, the candi
date is unable to comply with the provisions of this Act
respecting the return and declarations as to his election
expenses by reason of the refusal or failure of his official
agent or preceding official agent to make such return or
supply such particulars as would enable the return and
declaration to be made, or
(b) in the case of an application by an official agent, the
official agent is unable to comply with the provisions of this
Act respecting the return and declarations as to the election
expenses of the candidate for whom he is the official agent
by reason of the refusal or failure of a preceding official
agent to make such return or supply such particulars as
would enable the return and declaration to be made,
the judge shall, by order in writing served personally on the
person who so refused or failed to make a return or supply
particulars, direct that person to attend before the judge and,
on that person's attendance, shall, unless the person shows
cause to the contrary, order him to
(c) make such return and declaration or supply such state
ment of the particulars required to be contained in the
return, as to the judge seems just, and make or supply them
within such time and to such person and in such manner as
the judge may direct, or
(d) be examined with respect to such particulars,
and if the person so ordered does not comply with the order to
attend or an order referred to in paragraph (c) or (d) he is
guilty of an offence against this Act.
(16) An order made pursuant to subsection (14) may provide
that an allowance of an authorized excuse is conditional upon
the making of a return and declaration in a modified form or
within an extended time and upon the compliance with such
other conditions as to the judge seem best calculated for
carrying into effect the objects of this Act.
(17) An order allowing an authorized excuse relieves the
applicant for the order from any liability or consequence under
this or any other Act in respect of the matters excused by the
order and, where it is proved by the candidate to the judge that
any act or omission of the official agent of the candidate in
relation to the return and declaration respecting election
expenses was without the sanction or connivance of the candi
date and that the candidate took all reasonable means for
preventing the act or omission, the judge shall relieve the
candidate from the consequences of the act or omission on the
part of his official agent.
(18) Where an order is made pursuant to subsection (14),
the date of the order or, if the order specifies that conditions
are to be complied with, the date on which the applicant fully
complies with them, shall for the purposes of this section be
deemed to be the date of the allowance of the excuse.
The Associate Chief Justice granted this
application under subsection 63(14); in an order
dated January 10, 1980 he allowed the applicant's
excuse and gave him until January 18 to file his
declaration, on condition, however, that the appli
cant file at the same time a certified cheque for
$100 payable to the Chief Electoral Officer. It is
this decision which is the subject of the present
application under section 28 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10. The Associ
ate Chief Justice did not have the authority, the
applicant maintained, to impose on him the condi
tion that he pay $100 to the Chief Electoral
Officer.
Before considering this argument, however,
there is another question that must be answered:
does the Court of Appeal have jurisdiction to hear
this application, since the decision in question was
made by a judge appointed under section 96 of
The British North America Act, 1867, 30 & 31
Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No.
5]?
When we read subsection 28(1) of the Federal
Court Act 2 bearing in mind the definition of "fed-
2 28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
eral board, commission or other tribunal" con
tained in section 2, 3 it is clear that section 28 does
not give the Court the authority to review deci
sions of judges who, like the Honourable Associate
Chief Justice of the Superior Court, are appointed
under section 96 of The British North America
Act, 1867. It is also clear, however, if we consider
the case law, 4 that the Court nonetheless has the
authority to review decisions that a judge appoint
ed under section 96 renders, not qua judge, but as
persona designata.
Is a judge who makes an order under subsection
63(14) of the Canada Elections Act acting qua
judge or as persona designata?
In the Herman case Dickson J. stated the crite
rion for determining when a judge is acting as
persona designata rather than qua judge as
follows:
Prima facie, Parliament should be taken to intend a judge to
act qua judge whenever by statute it grants powers to a judge.
He who alleges that a judge is acting in the special capacity of
persona designata must find in the specific legislation provi
sions which clearly evidence a contrary intention on the part of
Parliament. The test to be applied in considering whether such
a contrary intention appears in the relevant statute can be cast
in the form of a question: is the judge exercising a peculiar, and
distinct, and exceptional jurisdiction, separate from and
unrelated to the tasks which he performs from day-to-day as a
judge, and having nothing in common with the court of which
he is a member? 5
When he made the order in question, was the
Associate Chief Justice exercising "a peculiar, and
distinct, and exceptional jurisdiction, separate
from and unrelated to the tasks which he performs
from day-to-day ... and having nothing in
common with the court of which he is a member"?
3 2. In this Act
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of the Parliament of Canada, other than any such body
constituted or established by or under a law of a province or
any such person or persons appointed under or in accordance
with a law of a province or under section 96 of The British
North America Act, 1867;
4 See: Commonwealth of Puerto Rico v. Hernandez [1975] 1
S.C.R. 228; Herman v. The Deputy Attorney General of
Canada [1979] 1 S.C.R. 729; M.N.R. v. Coopers and Lybrand
[1979] 1 S.C.R. 495.
5 [1979] 1 S.C.R. 729 at p. 749.
Before answering this question I would like to
mention, even though this is perhaps not impor
tant, that the Associate Chief Justice, in the rea
sons for his order, states that he was dealing with
the application [TRANSLATION] "as a `judge'
under the Canada Elections Act". In order to
understand this statement it must be remembered
that an application under subsection 63(14) must,
to use the actual wording of the provision, be made
to "a judge competent to recount the votes given at
the election"; it must also be remembered that
subsection 56(2) 6 indicates which judges are com
petent to recount the votes by referring to the long
definition of the word "judge" contained in section
2.'
I shall return to the question that must be
determined. If we read subsections 63(14), (15)
and (16) carefully, we see that these provisions
6 56....
(2) The judge to whom an application under this section may
be made shall be the judge, as defined in the definition "judge"
in section 2, within whose judicial district is situated the place
where the official addition of the votes was held, the judge
acting for that judge pursuant to paragraph (g) of that defini
tion or a judge designated by the Minister of Justice under that
paragraph, and any judge who is authorized by this section to
act may act, to the extent so authorized, either within or
outside his judicial district.
7 This definition reads in part as follows:
2....
"judge" or "the judge" when used to define the judicial officer
upon whom is conferred specific powers means,
(a) in relation to any place or territory within the judicial
district of Quebec or Montreal in the Province of Quebec, the
judge performing the duties of Chief Justice or Associate
Chief Justice of the Superior Court, as the case may be, each
acting for the district in which he resides, or such other judge
as may be assigned by the Chief Justice or Associate Chief
Justice to perform the duties in this Act required to be
performed by the judge,
(g) in relation to any place or territory in Canada
(i) where there is no judge as defined in paragraphs (a) to
(f) or a vacancy exists or arises in the office of any such
judge or where such judge is unable to act by reason of
illness or absence from his judicial district, the judge
exercising the jurisdiction of such judge
(ii) where there is more than one judge exercising such
jurisdiction, the senior of them, and
(iii) where no judge is exercising such jurisdiction, any
judge designated for the purpose by the Minister of
Justice;
allow the judge not only to excuse offences against
the Act (in the circumstances specified by him),
but also to issue proprio motu orders with which
the persons in question must comply on pain of
being guilty of an offence against the Act. These
are, in my view, exceptional powers that have
nothing in common with those exercised by a judge
of the Superior Court on a day-to-day basis.
Moreover, the powers conferred by subsections
63(14), (15) and (16) are not subject to the proce
dure normally followed by the Superior Court. The
only procedural requirements applicable in the
case at bar are those prescribed by section 63.
For these reasons, I find that the Associate
Chief Justice was acting as persona designata
when he made the order in question. The Federal
Court of Appeal therefore has jurisdiction to
review this order.
The applicant maintained that the Associate
Chief Justice exceeded the authority conferred on
him by section 63 by making his order conditional
upon the applicant's paying the sum of $100 to the
Chief Electoral Officer.
The powers of the judge who grants an applica
tion under subsection 63 (14) are set out in that
subsection and in subsection 63(16). Under sub
section (14):
the judge may ... make such order for allowing an authorized
excuse ... as to the judge seems just.
Subsection (16) provides that the judge may make
his allowance of the excuse subject to certain
conditions:
63....
(16) An order made pursuant to subsection (14) may provide
that an allowance of an authorized excuse is conditional upon
the making of a return and declaration in a modified form or
within an extended time and upon the compliance with such
other conditions as to the judge seem best calculated for
carrying into effect the objects of this Act.
According to the applicant, the condition
imposed by the Associate Chief Justice was not
authorized by subsection 63(16) because it is not a
condition "calculated for carrying into effect the
objects of [the] Act." According to the applicant,
the only objects of the Act referred to by this
provision are those in section 63, which, to the
extent it applies to the applicant, is aimed solely at
ensuring that certain information is transmitted to
the Chief Electoral Officer. The applicant main
tained that the condition in question here is foreign
to this object of section 63 since the Judge imposed
it on the applicant both to punish him and to
ensure that the Chief Electoral Officer would be
partially reimbursed for the expenses he had
incurred as a result of the applicant's failure to file
a declaration within the time prescribed.
This argument must be rejected, in my view.
The condition whose legality is disputed by the
applicant was clearly imposed in order to ensure
that section 63 is complied with in future, both by
the applicant and by all those who might be tempt
ed to act with a similar casualness and lack of
concern. In my view this is indeed a condition
calculated to carry the objects of the Canada
Elections Act in general and of section 63 in
particular into effect. This is therefore a condition
which the Associate Chief Justice had the author
ity to impose.
For these reasons I would dismiss the applica
tion.
* * *
LE DAIN J.: I concur.
* * *
LALANDE D.J.: I concur in this judgment.
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.