Civil Litigation/Elections: Collateral Attack; Abuse of Process; Parliamentary Privilege; Immunity
Resler v. Anglin, 2024 ABCA 113, 2026 SCC 23 (41298)
“A was a Member of the Legislative Assembly of Alberta from 2012 to 2015, when he was unsuccessful in his re-election bid. He claimed that during the 2015 provincial election campaign, R, the Chief Electoral Officer (“CEO”) of Alberta, engaged in conduct that affected the outcome of the election. After pursuing relief by way of judicial review, he commenced a civil action against R. The civil claim accepted the election result, but maintained that R exercised public powers for an improper or ulterior motive, knowing that doing so was likely to cause harm, and caused various losses and damages, including the loss of chance of being re-elected.
R filed a motion to strike the statement of claim on the grounds that it is frivolous, irrelevant or improper. In the alternative, he alleged that the statement of claim disclosed no reasonable claim, constituted an abuse of process, had no merit, and was contrary to the public interest. In support of the motion, R submitted that the allegations in the statement of claim would require the court to inquire into the validity of an election outside the controverted elections provisions of Alberta’s Election Act, which allow a defeated candidate to file a petition to void the election result by reason of the “undue return or undue election” of another candidate, within 30 days of the publication of the notice respecting the outcome of the election, and that the claim has no reasonable prospect of success because the CEO is immune from liability for the actions alleged. The chambers judge struck A’s claim in its entirety as an abuse of process. The Court of Appeal allowed his appeal in part. It reinstated the claim with the exception of the allegations of malicious prosecution, which it held were properly struck.”
The SCC (6:3, in part) dismissed the appeal.
Justice Moreau wrote as follows (at paras. 1-4, 63-68, 100):
“Can an unsuccessful election candidate bring a civil claim against an elections officer for the tort of misfeasance in public office? The respondent, Joseph Anglin, was a Member of the Legislative Assembly (“MLA”) of Alberta from 2012 to 2015, when he was unsuccessful in his re-election bid. He commenced a civil claim against the appellant Chief Electoral Officer (“CEO”) of Alberta, Glen Resler. Resler applied to strike the claim.
Resler argues that Anglin’s claim constitutes a collateral attack on the 2015 election and an abuse of process, and that his actions were protected by parliamentary privilege or statutory immunity. Anglin states that his civil claim is not a collateral attack on the election or an abuse of process as he accepts the election result. However, he maintains that Resler interfered in the election, and caused him various losses and damages, including the loss of chance of being re-elected, and that neither parliamentary privilege nor statutory immunity protects him in the circumstances.
The chambers judge struck Anglin’s claim in its entirety, having found that it was an abuse of process. The majority of the Court of Appeal allowed his appeal in part, having determined that the claim was not an abuse of process, and reinstated it with the exception of the allegations of malicious prosecution asserting that Resler investigated and prosecuted Anglin without any factual or legal basis, which it held were properly struck. The concurring judge on appeal would have maintained the malicious prosecution claim, save for one allegation that he deemed bound to fail.
For the reasons below, I find that Anglin’s claim does not constitute a collateral attack on the 2015 election result or an abuse of process, that Anglin has made out an arguable case for the non-application of parliamentary privilege and statutory immunity, and that Resler has not met the rigorous test for striking out a claim. Accordingly, the order of the majority of the Court of Appeal is upheld. Anglin may proceed with his civil claim against Resler with the exception of the malicious prosecution claim that was struck and was not the subject of a cross-appeal.
…
A contextual and purposive analysis also supports the conclusion that the Election Act does not bar civil claims for acts performed in bad faith. Regarding context, the scheme of the Election Act does not impliedly exclude Anglin’s claim. Anglin noted that the Ontario Court of Appeal identified three factors that courts should consider in determining whether a civil claim is impliedly excluded by statute:
- (i) whether the “process for dispute resolution established by the legislation” is “consistent with exclusive jurisdiction”;
- (ii) the “nature of the dispute” and the “extent to which the court’s assumption of jurisdiction would be consistent or inconsistent with that scheme”; and
- (iii) “the capacity of the scheme to afford effective redress” on the basis that “where there is a right there [ought to be] a remedy.”
(R.F., at para. 75, citing Hopkins v. Kay, 2015 ONCA 112, 124 O.R. (3d) 481, at paras. 31-33 (emphasis deleted).)
With respect to the first consideration, Anglin made three points. First, the controverted elections provisions of the Election Act only allow “the candidate whose election is challenged” to be named as a respondent in the petition challenging the election results (s. 186(2)). The amended statement of claim is not against the person who won the election nor against any other candidates. Second, the petition contesting the election must be filed within 30 days of the election (s. 185(2)(b)). The amended statement of claim included conduct that occurred well after 30 days post-election. Third, while the controverted elections provisions ultimately require the determination of the issue to be made by a judge, the CEO is an integral part of the process of implementing the judge’s decision (s. 195(1)). This would have the effect of putting Resler in charge of implementing the judge’s decision.
With respect to the second consideration, Anglin noted that as regards the nature of the dispute, the controverted elections provisions do not contemplate the nature of his personal claim nor does he seek to overturn the election results. The controverted elections provisions only contemplate a determination of who should be recognized as winning the election, which is not in issue. Anglin’s claim therefore does not fit within the procedural framework of the Election Act as his claim for damages is not against the candidate who won the seat. As Anglin noted, if he is limited to a public remedy, then there is no personal accountability whatsoever for individuals who commit torts against candidates.
With respect to the third consideration, Anglin noted that the controverted elections provisions “would shift Resler’s personal liability for his actions to a process that provides no remedy whatsoever” (R.F., at para. 82). I find Anglin’s arguments addressing the considerations set out in Hopkins to be compelling. The controverted elections provisions of the Election Act are neither designed nor suited to address individual harms alleged to have been committed by or on behalf of a CEO during the election process.
The Election Act also only contemplates one remedy — a declaration that the election is void by reason of the “undue return or undue election of a candidate” as the MLA (s. 185(1)). That is the only jurisdiction carved out for the courts to remedy alleged defects in the conduct of an election. However, if the only possible remedial action was through the mechanism of a controverted election, it would not make sense for s. 5.1(1) to grant the CEO specific immunity for his actions as an individual public officer.
…
Having found that the claim is not barred by the doctrines of collateral attack or abuse of process, or any privilege or immunity, and that the allegations and facts pleaded disclose a reasonable claim, I agree with the Court of Appeal majority reasons reinstating the amended statement of claim with the exception of the allegations of malicious prosecution.”