opposing parties were taken by surprise by the issue of late voting.
[54]
Further, Mr. Guthrie submitted that the appellants themselves dealt with the issue
of late voting in their own witness statements to assert that late voting was not in
breach of the law if the voters concerned were in the line by 6:00pm. Accordingly,
Mr. Guthrie maintained that the appellants could not have been taken by surprise
by the issue of late voting.
[55]
These are interesting submissions. In my view, however, the effect of accepting
any of them would be to introduce an unacceptable uncertainty and laxity into
pleadings as to henceforth blur the boundaries for the parties and the court. It
would mean that from henceforth, notice of an issue for trial would arise not from
the pleadings but from the evidence as it unfolds and even from the submissions
by counsel. Ultimately, issues for trial would unfold during the course of trial or
after the trial if the trial judge orders counsel to make closing submissions or to file
further written submissions.
[56]
Further, in the alternative, Mr. Guthrie and Mr. Astaphan suggested that the court
should relax the rules of pleading with precision in election cases which do not
involve fraud or dishonesty. Accordingly, counsel urged us to draw a distinction
between cases in which irregularity in the conduct of the elections as to voting
hours is alleged and those in which there are allegations of electoral offences such
as bribery on the part of a candidate. Learned counsel suggested that the court
could insist on greater particularity and precision in pleadings in the latter cases
because a respondent may then be at risk of criminal sanctions. I merely observe
that on present principles, any allegation approaching dishonesty in any civil case,
electoral or otherwise, must be clearly and specifically pleaded with a level of
precision that is not required in pleading a mere irregularity. However, the
irregularity must be clearly raised in the pleading.
[57]
Mr. Guthrie further submitted that the court cannot close its eyes to the legal
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