Lall v Alberta (Chief Electoral Officer), 2017 ABQB 0570

Court of Queen’s Bench of Alberta Citation: Lall v Alberta (Chief Electoral Officer), 2017 ABQB 0570 Date: 20170921 Docket: 1501 13771 Registry: Calgary Between: Jamie Lall and Shubkearn Sihota Applicants - and - Chief Electoral Officer of Alberta Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice W.A. Tilleman _______________________________________________________ Introduction [ 1 ] Following the Provincial General Election in 2015, the Applicant, Jamie Lall, and his chief financial officer, Mr.

Sihota, filed their “Candidate Financial Statement” late, the consequence of which is that Mr. Lall is banned from running for election for 5 years. They sought relief from this Court, which I denied in Lall v Alberta (Chief Electoral Officer) . 2016 ABQB 117 (“ Lall ”). [ 2 ] Mr. Lall has now applied to have me consider additional evidence and vary my judgment to grant the relief that would allow him to run again for office. [ 3 ] Mr. Lall’s new affidavit evidence is that he was in a state of depression following the 2015 election.

He asserts that, as a result of his depressed state, his ability to focus and adhere to deadlines was seriously compromised and that this played a significant role

in missing the deadline to file the financial statements. His evidence is that, during the relevant period, he completely removed himself from anything associated with politics and distanced himself from friends, including Mr. Sihota. For a period of time, he even returned to live with his parents. His parents, business partners and Mr. Sihota all filed letters supporting Mr. Lall’s self-diagnosis of depression. The Law [ 4 ] Rule 9.13 permits the Court to vary a judgment or order: 9.13 At any time before a judgment or order is entered, the Court may (

a) vary the judgment or order, or (

b) on application, and if the Court is satisfied there is good reason to do so, hear more evidence and change or modify its judgment or order or reasons for it. [ 5 ] It is common ground that my judgment in Lall has not yet been entered. Submissions [ 6 ] The Applicants refer me to the two-part test for re-opening a trial to receive new evidence referred to in 671122 Ontario Ltd. v Sagaz Industries Canada Inc, [2001] 2 S.C.R. 983, 2001 SCC 59 : i. Would the evidence, if presented at trial, likely have changed the result; and ii.

Could the evidence have been obtained before the conclusion of the trial by the exercise of reasonable diligence? [ 7 ] The Applicants justify their application to have Mr.

Lall’s evidence of depression heard at this time on the following four grounds: • The new evidence likely would change the result, as it puts forward external factors that led to the late filing of the Financial Statement and constitutes mitigating reasons for non-compliance. • Reasonable diligence would not have made the new evidence available for the original application, as there were no previous reported decisions and all previous applications had been granted.

The Applicants were unaware of the test to meet and could not reasonably have anticipated that this evidence would be required. • The original application was heard on less than one week’s notice due to circumstances beyond the control of the Applicants.

As a result, the Applicants had less than one day to consider the authorities contained in the Respondent’s brief. • The serious nature of the consequences associated with the late filing of the Financial Statement warrants hearing all relevant and material evidence. [ 8 ] The Respondent Chief Electoral Officer takes no position on this application but does point out the importance of the decision in Lall , which he indicates was the first judicial authority on interpreting the relief sections of the Election Finances and Contributions Disclosure Act , RSA 2000, c E-2 (“ EFCDA ”).

Counsel for the Chief Electoral Officer stated that Lall “gave clear direction that properly reflected fairness, accountability and transparency purposes as set out in the legislation. So it has given us the guidance we need when we go to other Courts to say this is the standard.” [ 9 ] The Respondent notes that, contrary to the position taken by Mr. Lall, the EFCDA clearly provides that a candidate cannot be his own chief financial officer.

Further, the Respondent observes that arguments in respect of mental or physical health matters generally are supported by medical evidence rather than a party’s self-diagnosis. [ 10 ] Finally, the Respondent advised the Court of a post- Lall amendment to the statute that gives candidates a 10 day grace period for late filing.

Section 43.2(4) of the EFCDA now provides:

(4) The Chief Electoral Officer shall not transmit a report in relation to a registered candidate, registered nomination contestant or registered leadership contestant under section 44(1) if the return is filed no later than 10 days after the filing deadline. Analysis [ 11 ] Before re-opening a decision, Rule 9.13(

b) requires that the Court be satisfied there is good reason to do so. In Alberta (Child, Youth and Family Enhancement, Director) v. BM. , 2009 ABCA 258 , Justice Côté laid out these criteria at para 12 (citations omitted): 1. Could the evidence have been obtained earlier if due diligence had been observed? That the evidence was available to the applicant but not looked for because it was hard to access and because other matters pressed, is fatal. 2. Is the evidence credible? 3. Would the evidence have been practically conclusive in producing the opposite result to that earlier pronounced?

A debatable matter of opinion is not sufficient. Nor is controvertible evidence which would open up an extremely complex and convoluted exercise.

... 4. Is the evidence in its present form admissible under the ordinary rules of evidence? [ 12 ] As noted above, the parties advise that Lall was the first decision giving direction in respect of the relief provisions of the EFCDA . Subsequently, my colleague Viet J. released her decision in Bildhauer v Alberta (Chief Electoral Officer) , 2017 ABQB 54 . While she disagreed with my

interpretation of the requirement for “mitigating circumstances”, she also acknowledged at para 53 that the provisions of the EFCDA at issue in her case attracts “a somewhat lower level of rigour”. In Bildhauer , Justice Veit referred to an oral decision of Brooker J. allowing three applications and denying a fourth. With respect to the three applications he allowed, Justice Brooker said: In each of their cases there are legitimate legal mitigation reasons – sorry, legal mitigating reasons for the late filing.

Someone other than the applicant was, at least partially, if not entirely to blame, for the returns having been received late. [ 13 ] One of those cases involved the failure of the candidate’s chief financial officer to sign the document before filing it. The other two were the fault of Canada Post, which did not deliver the material by the guaranteed delivery date. [ 14 ] Justice Brooker refused to grant relief in the fourth case, finding that the applicants were well aware of the deadline for filing and did nothing to try to comply with it.

He observed that one might question whether they had even demonstrated good faith in relation to their late filing. [ 15 ] The Court is not persuaded that Mr. Lall’s evidence of his self-diagnosed illness meets the test under Rule 9.13. First, as Mr. Lall concedes, the evidence is not new; in my view, it could have been made available to the Court at the initial application. More importantly, as the Respondent pointed out, as a general rule, where physical or mental health matters are in issue, the Court expects more fulsome evidence than a party’s own self-diagnosis.

The Court normally could expect to be provided with evidence from an appropriate health professional. Had Mr. Lall’s self-diagnosis been the only evidence before me, I would have been inclined to dismiss the application. [ 16 ] However, the law has now changed. I will take into account the evidence of the amendment to the EFCDA creating the 10 day grace period. Notwithstanding that the amendment is not retroactive; I find that it is an expression of the legislative will that I may consider in determining whether there is “good reason” under Rule 9.13 to vary my judgment in Lall .

Counsel for the Respondent indicated that the amendment may have been a determination by the legislature that relatively minor breaches of the filing requirements should not require an application to the Court, but should be subject instead to a late filing fee. As I noted in Lall , Mr. Lall’s filing was 8 days late.

Thus, had the current legislation then been in place, he would have benefitted from the grace period and would have avoided the harsh result of being prevented from running for election for 5 years. [ 17 ] With some reluctance, but given the influence of the legislative amendment, plus the acquiescence of the Respondent, and the fact that the judgment in Lall has not yet been entered, I will allow the application under Rule 9.13 to vary my judgment in Lall . Therefore, the Court exercises its discretion pursuant to section 44(3) (

b) of the EFCDA (as it was at the relevant time; now s. 44(4) (b)) to extend the time for compliance for an additional 10 days. In the result, Mr. Lall’s filing was made in sufficient time. Heard on the 16 th day of August, 2017. Dated at the City of Calgary, Alberta this 21 st day of September, 2017. W.A. Tilleman J.C.Q.B.A. Appearances: Brad J. Findlater Machida James McCall for the Applicant Jamie Lall

William W. Shores, Q.C. for the Respondent