law. I discern no other statement in the petition that refers to late voting as a
complaint or allegation in and of itself. In my view, therefore, the statements to
which Mr. Guthrie refers as alleging late voting in the Jonas/St. George petition, do
not allege late voting or the unlawfulness of late voting.
Pleading late voting in the Simon/St. John Rural West petition
[44]
Mr. Martineau, SC, pointed out that the pleadings were similar to those contained
in the Jonas petition, except that the Simon petition contains paragraph 9.5 in
addition. This paragraph states as follows:
“Further irregularities took place after 6:00 p.m. when certain persons only
were permitted to vote. Many were not and in any event those who were
permitted were not properly able to do so according to the provisions of
the Act and the Election Rules.”
[45]
Mr. Martineau submitted that this pleading was not a complaint that the voters
were permitted to vote after 6:00pm. Rather, he insisted, this was an allegation
that some persons were not permitted to vote while others were permitted to do so
after 6:00pm. Counsel further submitted that there was no plea that those who
were permitted to vote after 6:00pm should not have been permitted to do so, in
breach of Rule 1(7) or other electoral law.
[46]
I do not think that paragraph 9.5 of the Simon petition provides the precise,
specific and unambiguous notice of the allegation which the respondent should
have been given to permit him to meet the issue of late voting in the trial. It does
not appear on its wording, that paragraph 9.5 was a complaint that persons voted
after 6:00pm in breach of elections law. Rather, as Mr. Martineau maintained, in
effect, the paragraph alleges that some persons were permitted to vote after
6:00pm, while others were, perhaps, discriminatorily or unfairly not permitted to
vote after that time. It is from this perspective that I agree with counsel that
paragraph 9.5 presents a contrast from the pleading on the issue of late voting
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