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Page: 37 [92] The first part of the phrase “knew or should have known” refers to actual knowledge on the part of the applicant. The words “or should have known” impose an objective standard. What an applicant “should have known” is a factual inquiry, guided by the principles developed in the case law with respect to discoverability and the reasonable inferences that can be drawn from the facts and surrounding circumstances of a particular case. It is not a determination based on the subjective or individual perception or experience, but what is reasonable to conclude regarding what a person ought to have known in the circumstances. [93] It is a question of fact for the court to determine whether an applicant knew or should have known of the event earlier and brought the application in a more timely manner. [94] Having set out the legal framework that governs this decision, I will now turn to the issues in this case beginning with the motions that remained outstanding at the start of the hearing. IV. Analysis A. Preliminary motions (1) [95] Was there maintenance and champerty by the Council of Canadians? At common law, maintenance is the promotion or support of contentious legal proceedings by a stranger who has no direct concern in the proceedings. It consists, usually, in 2013 FC 525 (CanLII) Prothonotary Milczynski described that aspect of the test in Bielli, supra, at para 22:

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McEwing v. Attorney General

Judgment

Question Presented: Whether the phone calls had any impact on the final election results and if those results were sufficient to annul the election results.

Alleged Acts: Public attention came to the phone calls made during the 2011 election when Elections Canada investigator started to address the phone calls in the Edmonton court. The plaintiffs from six electoral districts brought the case to annul the 2011 Election results on account of voter suppression methods including telephoning voters to inform that their polling locations changed the day before the election. Election Canada received over 700 complaints detailing these calls. Evidence presented alleged that persons who had access to voter information arranged the calls, not the political candidates themselves. The applicants seek to set aside the election because the voting intended to prevent citizens from voting.

Summary: The court determined that it must assess whether or not there was fraud and then whether or not that fraud impacted the elections. First, the court found that there was sufficient evidence of fraud because the voters were contacted by individuals other than Election Canada on and before election day stating that their polling station closed. The impact of the voting had a higher evidentiary burden because the plaintiffs themselves were able to vote. Thus, the impacted voters cannot be effectively counted unless they came forward.

Conclusion: The court determined that although there was fraud, there was not sufficient reliable evidence that the fraud impacted the election results. Thus, the court may not annul the election results.

Legal Issue(s)

Disputing Results
Electoral Integrity

Region: Americas

Country: Canada

Language of Decision

English

Court: Supreme Court

Election Type: General

Date of decision: May 23, 2013

Geolocation

Latitude: 45.42663839

Longitude: -75.81085498

: Geolocation

Primary Documents

McEwing v. Attorney General.pdf
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Election Judgments - IFES

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McEwing v. Attorney General

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