Anglin v Alberta (Chief Electoral Officer), 2021 ABQB 353

Court of Queen’s Bench of Alberta Citation: Anglin v Alberta (Chief Electoral Officer), 2021 ABQB 353 Date: 20210504 Docket: 1703 03014 Registry: Edmonton Between: Joseph Anglin Applicant - and - Chief Electoral Officer Respondent -and - Minister of Justice and Solicitor General of Alberta Intervenor _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.M. Ross _______________________________________________________ Introduction

[ 1 ] On January 31, 2017, the Respondent Chief Electoral Officer [CEO] found that the Applicant Mr. Joseph Anglin [Anglin] had breached s 19.1 of the Election Act , RSA 2000, c E-1 [the Act ], which requires that a person provided with a list of electors under the Act take all reasonable steps to protect the list from loss and unauthorized use.

The CEO imposed an administrative penalty of $500 under s 153.1 of the Act . [ 2 ] Anglin brought an application appealing the decision of the CEO on administrative law grounds, and challenging the constitutionality of the CEO’s authority to impose an administrative penalty under s 96 of the Constitution Act , 1867 (UK), 30 & 31 Vict, c 3 , reprinted in RSC 1985, App II, No 5. In a preliminary decision dated March 23, 2020, I dealt with the administrative law aspects of the application: Anglin v Alberta (Chief Electoral Officer) , 2020 ABQB 131 [the Administrative Decision].

I dismissed grounds of appeal alleging palpable and overriding error on the part of the CEO, error in the CEO’s

interpretation of s 19.1 of the Act , and bias on the part of the CEO. However, I concluded that a ground of appeal alleging lack of procedural fairness had been made out. I also determined that the appropriate remedy was to remit the matter back to the CEO for reconsideration. [ 3 ] The administrative law arguments were heard on January 23-24, 2020. The constitutional arguments were scheduled to be heard on April 16-17, 2020. That hearing was adjourned sine die as a result of Court of Queen’s Bench Master Order #2 re: COVID-19 of March 20, 2020.

The constitutional arguments are now scheduled to be heard on June 28-29, 2021. [ 4 ] In the interim, the Minister of Justice and Solicitor General of Alberta [Alberta], Intervener on the constitutional challenge, advised of the intention to bring an application declaring Anglin’s constitutional challenge moot due to the Administrative Decision.

In addition, Anglin filed two applications: one, for reconsideration of the Administrative Decision, and another, asking the Court to refuse to give judicial notice or to give no weight to pre-confederation statutes submitted with the Authorities of the CEO and Alberta for consideration in relation to the constitutional challenge. Preliminary issues relating to proposed expert evidence and the role of the CEO on the constitutional challenge were also raised. [ 5 ] At a case management conference, it was agreed that these issues would be heard on April 27-28, 2021.

The issues before the Court and the conduct of this hearing were formalized in an Order dated March 18, 2021. Anglin’s application for reconsideration of the Administrative Decision [ 6 ] Anglin brings the application for reconsideration pursuant to Rule 9.13 of the Alberta Rules of Court : 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. [ 7 ] Anglin submits that this Rule significantly broadens the jurisdiction of the Court to reconsider decided matters, provided that no formal judgment or order has been issued.

The CEO does not dispute the court’s jurisdiction, but notes that the Court of Appeal has commented that it should be “cautiously” or “sparingly” used, citing Simpson v Rondeau , 2015 ABCA 283 at para 6 and CA v RB , 2019 ABCA 445 at para 26 . [ 8 ] As I have previously held ( Clark v Unterschultz , 2020 ABQB 423 at para 2 ), I find useful guidance on the appropriate use of Rule 9.13 in the decision of Justice Brown, when he was a member of this Court, in Lewis Estates Communities Inc v Brownlee LLP , 2013 ABQB 731 at paras 32-33 : 32 Whether the powers conferred upon the Court under R. 9.13 are to be exercised is therefore circumstance-dependent.

In [ Evans v The Sports Corporation , 2011 ABQB 478 ], it was exercised to correct a reading of a contractual term that all parties agreed was in error. In [ Paniccia Estate v Toal, 2012 ABQB 11 , aff’d 2012 ABCA 397 ], it was exercised to correct an incorrect statement of law. These were objectively demonstrable errors. The circumstances of Evans and Paniccia Estate stand in contrast to those which led my colleague Hall J to decline to exercise his discretion under R. 9.13(

b) in Peters v Wilson Estate, 2011 ABQB 689 [ Peters ]. Justice Hall had granted the defendant

summary judgement. The plaintiff then applied under R. 9.13, raising three arguments that he said Hall J had not considered properly. 33 It makes sense to apply R. 9.13 to correct the sorts of errors identified in Evans and Paniccia Estate . Doing so not only averts an injustice but saves litigants the costs […] of bringing an otherwise unnecessary appeal. R. 9.13 is not, however, a vehicle for seeking reconsideration of a judgment call […]. An unsuccessful litigant’s remedy in such a case lies only in an appeal.

And, because judgments need not and often will not specifically address every argument put before the Court, where a Court is invited to reconsider under R. 9.13 a matter that it has specifically addressed in its original judgment, the putative error ought [to] be plain and manifest. Otherwise, R. 9.13 would quickly become a vehicle for litigants seeking second kicks at the can.… [ 9 ] Anglin seeks reconsideration of my determinations in the Administrative Decision that the CEO did not make a palpable and overriding error in the factual finding underlying his decision, and that the CEO did not err in his

interpretation or application of s 19.1 of the Act . [ 10 ] Anglin refers to paragraphs 34 and 37 of the Administrative Decision, which I will reproduce for ease of reference here: 34 During the hearing of the judicial review application, counsel for Anglin submitted that the CEO made a palpable and overriding error in his factual finding that cabinet 04499 was located in Sundre. He argued that the following paragraph from the Notice of Intended

Findings demonstrates the CEO’s logical error: The moving company noted 28 items of furniture from the Sundre constituency office, including two 4-drawer filing cabinets and two 2- drawer filing cabinets. Some of the furniture was dropped off at the new Rocky Mountain House constituency office, and the rest went to the Legislature Annex in Edmonton. An LAO inventory for Rimbey-Rocky Mountain House-Sundre listed four 4-drawer lateral filing cabinets with barcodes 04496; 04498; 04499; and 18788.

A handwritten note beside 04498 and 04499 states “xfd to Surplus.” From an April 2015 inventory list, filing cabinets with barcodes 04496 and 18788 were still in use at the Rocky Mountain House constituency office. [….] 37 I reject the submission that the CEO made a palpable and overriding error of fact. The paragraph quoted at para 34 above, did not purport to describe the CEO’s factual findings; it is found in the

section of the Notice of Intended Findings that is headed “The Investigation – Information and Evidence.” The CEO never found as a fact that there were only two 4-drawer filing cabinets in Sundre, or precisely how many 4-drawer filing cabinets were moved from Sundre to the Legislature Annex and declared surplus.

He found that cabinet 04499 was in Sundre, with the List of Electors in it, until it was moved to the Legislature Annex and declared surplus. [ 11 ] Anglin submits that, as my reading of the CEO’s decision had not been argued on the application (the CEO did not make submissions on whether there had been a palpable and overriding error of fact), he had been caught by surprise by this characterization of the CEO decision.

He submits that he should therefore have an additional opportunity to argue that the CEO erred based on other evidence before him. [ 12 ] I note, first of all, that Anglin does not dispute my reading that the quoted paragraph from the CEO decision was part of a

summary of evidence, not a finding of fact. The CEO’s findings were set out in a subsequent part of the Notice of Intended Findings, under the heading “Reasons for Intended Findings,” and in the subsequent Notice of Administrative Penalty, under the same heading. Both of the CEO decisions, in their entirety, were fully addressed in the initial application. [ 13 ] Secondly, my decision that the CEO did not make a palpable and overriding error was not based exclusively on the characterization of one paragraph in the Notice of Intended Findings.

I addressed other evidence before the CEO and before the Court, and other arguments made before me, in paragraphs 38-39 of the Administrative Decision. [ 14 ] Anglin’s argument on this point is, in my view, a clear example of an attempt to have the court reconsider a judgment call; a “second kick at the can.” I decline to reconsider my determinations that the CEO did not make a palpable and overriding error in his factual findings and did not err in his

interpretation or application of s 19.1 of the Act . [ 15 ] Anglin also seeks reconsideration of the remedy. I remitted the matter to the CEO for reconsideration. In making this decision, I did not consider s 153.3 of the Act , which provides:

(1) A person or entity who is served with a notice of administrative penalty under

section 153.1 may appeal the Election Commissioner’s decision by filing an application with the Court within 30 days from the date the notice was served. …

(5) On hearing the appeal, the Court may confirm, rescind or vary the amount of the administrative penalty. [ 16 ] These provisions arose from amendments to the Act enacted in 2017: An Act to Strengthen and Protect Democracy in Alberta , SA 2017, c 29 .

They were not in effect when the CEO issued the Notice of Penalty (January 31, 2017) or when Anglin commenced his appeal (February 13, 2017). [ 17 ] During the initial application, counsel for both Anglin and the CEO advised that there had been amendments to the Act , but relied on the Act as it existed at the time of the Notice of Penalty and the commencement of the appeal, as I noted when discussing standard of review: This is a statutory appeal.

At the material time, the Act contained only an incidental reference to an appeal, requiring that a notice of administrative penalty contain “a statement of the right to appeal the imposition or the amount of the administrative penalty to the Court of Queen’s Bench”: s 153.1(2)(d). Administrative Decision, para 24. [ 18 ] At the conclusion of the initial hearing, I sought submissions regarding remedy. There was some discussion, but no reference to amendments to the Act . There was a suggestion that counsel might address remedy in written briefs.

I responded that I would allow the parties to address remedy following the adjournment. Unfortunately, I did not recall that statement when I issued the Administrative Decision. [ 19 ] The issue of remedy is appropriately reconsidered under Rule 9.13. Failing to consider the applicability of s 153.3(5) of the Act is, as Justice Brown termed it, an “objectively demonstrable” error.

There is also an issue of fairness, as the parties were advised they would have an opportunity to address remedy, but were not provided with that opportunity. [ 20 ] Anglin submits that s 153.3(5) applies and that the appropriate remedy is to simply rescind the administrative penalty. [ 21 ] The CEO submits that s 153.3(5) and other amendments to the Act included in An Act to Strengthen and Protect Democracy in Alberta are inapplicable, as there is nothing in the legislation that would indicate that the amendments were intended to apply with retrospective effect.

The CEO submits that there is an interpretive presumption that applies against both retroactive and retrospective effect in legislation: British Columbia v Imperial Tobacco Canada Ltd , 2005 SCC 49 , [2005] 2 SCR 473 at para 71 ; Thow v British

Columbia (Securities Commission), 2009 BCCA 46. [22] Anglin replies that procedural legislation is an exception to the presumption against retrospectivity, as explained in RuthSullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at paras 25.107-25.108: Procedural legislation is presumed to have immediate application. There is a common law presumption that procedural legislation appliesimmediately to both pending and future facts.

This presumption is formulated in a variety of ways: (1) persons do not have a vested rightin procedure; (2) the effect of a procedural change is deemed to be beneficial for all; (3) procedural provisions are an exception to thepresumption against retrospectivity; and (4) procedural provisions are ordinarily intended to have an immediate effect… Procedural legislation is about the conduct of actions. It indicates how actions will be prosecuted, how proof will be made and howrights will be enforced in the context of a legal proceeding.

Such legislation is presumed to apply immediately to on-going proceedings.This is a prospective application, even if proceedings have already commenced, because the new legislation applies only to stages in theproceedings or to procedural events that occur after its coming into force. (Emphasis added). [23] The excerpt from Sullivan on the Construction of Statutes suggests that legislation regarding remedies is procedural.

This isconsistent with case law considering the distinction between procedural and substantive legislation in a conflict of laws context, in whichremedial laws are generally, although not necessarily, characterized as procedural. [24] In Block Brothers Realty Ltd v Mollard (1981), (BC CA), 27 BCLR 17 at paras 11-12 (BCCA) (WL)[Mollard], the British Columbia Court of Appeal held: 11 The law of the jurisdiction in which the legal proceedings take place always governs procedural matters. On the other hand, thelaw of another jurisdiction may govern substantive matters.

Generally, if there is no conflict of laws involved, it is unnecessary todistinguish between what is procedural and what is substantive, but if it is necessary to consider the laws of another jurisdiction it may benecessary to distinguish between a matter of procedure and a matter of substance: Falconbridge, Conflict of Laws, 2nd ed. (1954), p.301. The characterization of what is procedural and what is substantive is a vexing problem, perhaps because there is no single definitivetest.

An often expressed view is that a matter is substantive if it relates to a right or to the nature of a right; it is procedural if it relates tothe remedy or to the nature of the remedy. In discussing the subject, Falconbridge says the common English test with regard to statutes oflimitation (p. 283) is that a “statute which extinguishes the ‘right’ is substantive, whereas a statute which merely bars the ‘remedy’ isprocedural”.

He contends that this is not a completely accurate basis upon which to distinguish between the two. (Emphasis added). [25] The right being enforced, in this case, was Anglin’s right to fair procedure, which rendered the CEO decision imposing apenalty on him invalid: [T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that thehearing would likely have resulted in a different decision.

The right to a fair hearing must be regarded as an independent, unqualifiedright which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision isentitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might havebeen had there been a hearing. Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643 at 661. [26]

Section 153.3(5) sets out an exhaustive list of the available remedies: the Court may confirm, rescind or vary the amount ofthe administrative penalty. The common law remedy of remitting the matter for reconsideration is not available. This limitation onavailable remedies does not affect the nature of the right to fair procedure. I conclude that s 153.3(5) is procedural, and appliesretrospectively to the within appeal. I make no comment regarding retrospectivity of other provisions of

An Act to Strengthen and ProtectDemocracy in Alberta. [27] The appropriate remedy in this case is to rescind the administrative penalty. This was the approach followed by Dario J. inRumpel v Alberta (Election Commissioner), 2019 ABQB 938 [Rumpel]. It will often be the case that a breach of procedural fairnesswill result in a rescission of a penalty, as Cardinal v Director of Kent Institution indicates that the court is not to speculate what theresult might have been had a fair procedure been followed.

There may be cases in which a technical breach of fair procedure could nothave made a difference to the result, as was found in Intact Insurance Company v Parsons, 2021 ABCA 123 at para 10. This, however,is not such a case. As indicated in the Administrative Decision, the CEO’s failure to provide disclosure of the evidence he relied onmeant that Anglin was given “no meaningful opportunity to make submissions about the weighing of the evidence or what wasdemonstrated on balance”: Administrative Decision, at para 72.

It is not for this Court to speculate what the result might have been hadhe been given that opportunity. [28] Having reconsidered the remedy, the administrative penalty is rescinded. Alberta’s application to have the constitutional challengedeclared moot [29] Alberta’s position on this application was that the decision to quash and remit the CEO’s decision on administrative lawgrounds rendered the constitutional question moot, as there was no longer a live controversy: Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 at 353 [Borowski].

Should the CEO decline to issue a new penalty against Anglin, the matter

would be at a close. Should the CEO issue a new penalty against Anglin after following a procedurally fair process, Anglin couldchallenge the new penalty on any arguable grounds arising, including on the basis of a constitutional challenge to s 153.1 of the ElectionAct. [30] I agree that the constitutional challenge is moot. The fact that the remedy is now, following reconsideration, simple rescissionof the administrative penalty, places this beyond doubt.

There is no live controversy, not even the potential that the CEO might issue anew penalty against Anglin. [31] Anglin submitted that the constitutional challenge which he seeks to bring is not merely collateral to the administrative lawapplication; it is a “direct application, through the Originating Application, for a constitutional remedy.” However, with thedisappearance of the live controversy, Anglin is no longer entitled to challenge the constitutionality of the Election Act in defence of hisprivate rights.

There is nothing to suggest that Anglin is affected by the Act any differently from any other Albertan. This is not asituation, like Engel v Alberta (Executive Council), 2019 ABQB 490 at para 21, where there is an allegation that his individual Charterrights have been breached.

To be entitled to bring a declaratory application, Anglin would be required to seek and obtain a discretionarygrant of public interest standing, which he has not done: Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto, Ont: Carswell,2007) at 59-6 (Part IV, c 59.2(d) - Discretionary Public Interest Standing) (WL). [32] The real issue is whether the Court should exercise its discretion to hear a moot case, considering three factors elaborated inBorowski and summarized in Alberta Teachers’ Association v Information and Privacy Commissioner, 2014 ABCA 432 at para 16: (

i) whether there remains an adversarial context which “helps guarantee that issues are well and fully argued by parties whohave a stake in the outcome”; (ii) the need for judicial economy; and (iii) the court’s proper adjudicative, not law making, function, to avoid intruding into legislative work. [33] Alberta acknowledges that the first concern does not arise – there is a record before the court and it is likely that Anglinwould continue to pursue his constitutional challenge with zeal. [34] Regarding the concern for judicial economy, Alberta submits that the expenditure of time and resources to decide a mootclaim is justified only where there are special circumstances, such as: (

i) where a decision could still have some practical effect on the parties’ rights (Borowski at 360); (ii) where the legal issue before the court is “capable of repetition, yet evasive of review,” because of its time-limited nature(such as temporary injunctions in labour strikes (Borowski at 360-61, 364); (iii) the matter raises an issue of public importance, such that there is a social cost in leaving the matter undecided (Borowski at361-62). [35] Any potential practical effect on Anglin’s rights has now been removed with the reconsidered remedy. [36] The legal issue is capable of repetition.

On any occasion on which the CEO imposes an administrative penalty under s 153.1of the Election Act, he is exercising an authority that is alleged to be unconstitutional. But the issue is not evasive of review;administrative penalties may be appealed to this Court and any appellant could challenge the penalty on constitutional grounds if theychose to do so.

Anglin argues that other appellants are unlikely to do this, given the low level of financial penalties involved.Administrative penalties may exceed the level of the penalty in this case, as in the $10,000 penalty considered in Rumpel, and therecould be multiple parties or penalties in issue. However, it is unlikely that financial considerations alone would justify the cost of aconstitutional challenge.

Nonetheless, disputes regarding alleged Election Act violations may have implications beyond financialpenalties which may cause others to consider a constitutional challenge, as is presumably the case with regard to Anglin himself. This isnot a case, like an injunction in the course of a labour strike, in which temporal limits make review impractical. [37] I do not consider that this constitutional challenge raises an issue of public importance such that there is a social cost toleaving it undecided.

The CEO’s authority to impose administrative penalties is limited in amount and subject to appeal to the court.Courts are not struggling with a disparity in the law on this issue which requires judicial resolution.

Neither Anglin’s interest in the issue,nor his desire to set a precedent for others, is sufficient to justify the use of scarce judicial resources to decide a moot case: Bonsma vAlberta (Information and Privacy Commissioner), 2012 ABQB 294 at para 27. [38] Anglin submits that, as the briefs and other materials have been completed, including an expert report, it would be “anenormous waste of time for the parties when all of that work is already before the court.” With all respect, the mootness doctrine seeks toconserve judicial resources, not the parties’ resources; and, in any event, other parties to the application – notably Alberta – do not seekto continue to direct resources towards this application.

The application is set for a two-day hearing and, if previous hearings on thismatter are any guide, could well end up taking additional time. The written materials are quite extensive. This is not an insignificant useof scarce judicial resources. [39] Finally, I consider the court’s proper adjudicative, not law making, function. This is a particularly important consideration inthe context of a constitutional law challenge, and is closely related to the legal principle that where a case can be decided on non-constitutional grounds, it should be.

As stated by Justice Sopinka in Phillips v Nova Scotia (Commissioner, Public Inquiries Act), (SCC), [1995] 2 SCR 97 at para 9: The policy which dictates restraint in constitutional cases is sound. It is based on the realization that unnecessary constitutionalpronouncements may prejudice future cases, the implications of which have not been foreseen. Early in this century, Viscount Haldane inJohn Deer Plow Co v Wharton… stated that the abstract logical definition of the scope of constitutional provisions is not only

“impracticable, but is certain, if attempted, to cause embarrassment and possible injustice in future cases.” [ 40 ] As further observed by Justice Sopinka, at para 13, this principle of restraint applies even in cases in which a matter has been fully argued before the court. When added to the concern for judicial economy that is also made out here, I conclude that it is appropriate that I decline to exercise my discretion to consider this moot constitutional application. Conclusion [ 41 ] Anglin’s application for reconsideration is allowed in part.

The remedy imposed in the Administrative Decision is varied such that the administrative penalty is rescinded; and the matter is not remitted to the CEO for reconsideration. [ 42 ] Alberta’s application to have the constitutional challenge declared moot is allowed. Anglin’s constitutional application is dismissed as moot. [ 43 ] In view of the ruling regarding mootness, it is unnecessary to consider the remaining issues that were argued before me, which related to the hearing on the constitutional application.

Heard on the 27 th and 28 th days of April, 2021 Dated at the City of Edmonton, Alberta this 4 th day of May, 2021. J.M. Ross J.C.Q.B.A. Appearances: Leah M. McDaniel Alberta Justice, Constitutional and Aboriginal Law for Her Majesty the Queen Donald F. Bur for Joseph Anglin William W. Shores, Q.C. and Kathleen Elhatton-Lake Shores Jardine LLP for Chief Electoral Officer