Prescott Election Case (Proulx v. Fraser)

Sir W. J. C.J.-We do not desire to hear the respondent's counsel in this case.

The objection came at the proper time before

Mr. Justice

McLennan and the affidavits showed that the petitioner was on the list and duly qualified to vote. Whether that was so or not is not material. The judge read the affidavits and after hearing both sides he adjudged that the preliminary objections should be dismissed, and further that they should be taken off the files of the court. The counsel for the sitting member acquiesced in that decision and took no exception to the ruling. Then, because the learned judge has chosen to attach to his judgment a permission, or whatever it may be called, to the parties to bring the question up on the trial, though the statute says it must be dealt with as a preliminary objection, it is claimed that the trial judges have jurisdiction to deal with it and there is an appeal from their decision. That cannot be so.

The statute is clear and there has ceased to exist in this case any preliminary objections as they have been dismissed and taken off the files the court.

Under these circumstances, I think there is nothing for us to do but to dismiss this appeal with costs. J.-The appellant insists that at the trial of this petition the learned judges in refusing to entertain his objection that the petitioner was not qualified to maintain the petition for the reason that he had not the status of an elector, ruled erroneously.

Such a point must be taken by way of preliminary objection.

It was so taken in the present case. but the preliminary objection was ordered to be taken off the file by a judge having undoubted jurisdiction to make that order. Therefore the learned judges at the trial, having no. preliminary objection before them, could not do otherwise than they did in refusing to adjudicate upon the objection to the petitioner's status. Further, Mr. Justice McLennan having dealt with the preliminary objection by ordering it to be taken off the file could not confer any larger jurisdiction strong J. than the statute itself conferred on the trial judges by delegating to them the decision of a question raised by the objections which had been set aside and ordered to be taken off the files.

I will not express any decided opinion as to the right generally of the judges at the trial of an election petition to decide preliminary objections. The words of section 12 are " the court or judge shall hear the parties " on such objections, and by section subsection (k) " the judge " is interpreted as meaning the judge trying the election petition. It would, however, certainly seem from the expression "preliminary objection " that a question so raised was intended to be decided in some proceeding anterior to the trial.

Moreover, unless this construction were adopted the object for which certain objections are required to be taken in this preliminary form would not be attained.

Although under the circumstances of this case it is not necessary to decide the point I incline to think that, notwithstanding the interpretation clause, the context indicates that by "judge" in section 12 is meant not the judge at the trial, but a judge who shall adjudicate previously to the trial, that is a judge of the court in which the petition is filed, sitting in

Chambers. If this is the proper construction it follows that the judges at the trial have no jurisdiction to deal with preliminary objections at all. The Youghal Case

(1) cited by Mr. Ferguson, though deciding nothing positively, favours this view.

The appeal must be dismissed with costs.

O'I.

YOL. XX.]

J.-I concur.

J.-I entertain not the slightest doubt that the course pursued by the learned judges at the trial of this cause was the only course that under the circumstances appearing, they could have legally pursued and that they would have erred if they had entertained as matter before them at the trial upon the merits, the matter which had been raised by preliminary objection to the status of the petitioner.

J.-I have nothing to add to what I have said to-day in the Bellechasse Case and what I said in the Stanstead Case

Appeal dismissed with costs.