proved. Counsel submitted that this provision plainly does not allow for each and
every sub-allegation which might be pleaded to be included in a petition. Counsel
insisted that the petitions were pleaded and pursued on these principles.
[51]
Mr. Guthrie and Mr. Astaphan submitted that it was always made plain that the
petitioners relied on breaches of those aspects of the law as to elections which
provide for voting hours. Thus, counsel asserted that, in the Jonas petition, Rule
1(7) was pleaded in paragraph 8.2, and at paragraphs 9.1 and 9.5 of the Simon
petition. He said that they pleaded to the effect that irregularities took place after
6.00pm when certain persons only were permitted to vote. It seems clear to me,
however, that these paragraphs simply state the scheduled opening and closing
hours of the polls. The complaint is that some persons were permitted to vote
after 6:00pm while others were not, in breach of electoral law.
[52]
Mr. Guthrie and Mr. Astaphan further submitted that the court should take notice
of the fact that counsel for the appellants accepted, in paragraph 1 of their written
submissions, that the late voting which took place resulted from late opening of the
polls. Counsel submitted that it would be absurd to limit the court’s examination of
what took place to one end of the day and not be concerned with its result at the
other end of the day. Mr. Guthrie suggested that it was sufficient that a breach of
Rule 1(7) was alleged in other parts of the petition, which did not speak specifically
to late voting. He submitted that this was sufficient to render voting a triable issue.
[53]
Alternatively, Mr. Guthrie urged us to hold that, in any event, some allegations will
be unclear until the evidence gathering process is completed. He buttressed this
submission by reference to the fact that in Frampton v Pinard, as well as in the
present case, the court directed the parties to file witness statements. Learned
counsel noted that the parties in the present cases were required to file witness
statements, which were filed and served almost 2 months before the scheduled
commencement of the hearings. Counsel submitted that the requirement that
witness statements be provided gives a further safeguard against the risk that the
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