Temple v. Bulmer, [1943] SCR 265

Supreme Court of Canada

Temple v. Bulmer, [1943] S.C.R. 265

Date: 1943-04-02

William Temple (Plaintiff) Appellant;

and

C.F. Bulmer (Defendant) Respondent.

1943: February 23, 24; 1943: April 2.

Present: Duff C.J. and Rinfret, Davis, Kerwin and Taschereau JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Mandamus—Elections—Application for mandamus directing Clerk of the Crown in Chancery for Ontario to issue writ for election to Legislative Assembly to fill vacancy created by death of member—Legislative Assembly Act, R.S.O. 1937, c. 12, s. 34—Officer under control of and answerable to Legislative Assembly.

This Court affirmed the dismissal of appellant’s application in the Supreme Court of Ontario for an order in the nature of a prerogative writ of mandamus directing the Clerk of the Crown in Chancery for Ontario to issue a writ for the election of a member of the Legislative Assembly of Ontario for an electoral district to fill a vacancy created by the death of the member therefor. The issue of the mandamus would constitute an intrusion upon the privileges of the Legislative Assembly. See 34 of The Legislative Assembly Act (R.S.O. 1937, c. 12) does not confer jurisdiction upon the courts in relation to Parliamentary elections; any duty imposed by s. 34 upon the Clerk of the Crown in Chancery is imposed upon him in his character of an officer under the control of and answerable to the Legislative Assembly.

APPEAL from the judgment of the Court of Appeal for Ontario dismissing the present appellant’s appeal from the judgment of Greene J. in the Supreme Court of Ontario dismissing appellant’s application (notice of which was dated May 13, 1942) for an order in the nature of a prerogative writ of mandamus directing the present respondent, Clerk of the Crown in Chancery for the Province of Ontario, to issue forthwith a writ for the election of a member of the Legislative Assembly of Ontario for the Electoral District of High Park, in the City of

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Toronto. The appellant was an elector of said Electoral District, and by affidavit stated (inter alia) that in May, 1940, a vacancy had been created in the Legislative Assembly by the death of the member who had been elected to represent the said Electoral District, and no writ had been issued and no election held to fill the said vacancy and the said Electoral District had remained unrepresented during two sessions of the Legislature of Ontario; that the appellant had, by letter of May 8, 1942, required the respondent to issue a writ for an election and the respondent had subsequently in an interview informed the appellant that he did not intend to comply therewith.

The respondent by affidavit exhibited a form of writ of election for a by-election in use in Ontario and stated (inter alia) that writs for the election of members to fill vacancies in the Legislature are always sealed with the Great Seal of the Province of Ontario and signed by the Lieutenant-Governor or the Administrator of the Province of Ontario; that the Great Seal was in the custody of the Provincial Secretary and not under respondent’s control; that there is no statutory authority vested in respondent to name a returning officer to hold an election to fill a vacancy in the Legislative Assembly; that returning officers have always been appointed by the Lieutenant-Governor in Council; that there is no statutory authority vested in respondent to fix a date for holding the poll for the election of a member of the Legislative Assembly; that respondent was informed and believed that the authority to fix such date is vested in the Lieutenant-Governor in Council; and that respondent was informed and believed that the appointment of a returning officer and the fixing of the date for holding a poll, by the Lieutenant-Governor in Council, are conditions precedent to the issue of a valid writ of election.

Sec. 34 of The Legislative Assembly Act, R.S.O. 1937, c. 12, is as follows:

Subject to the provisions of section 31, if the seat of a member of the Assembly has been vacant for three months and no writ has been issued, the Clerk of the Crown in Chancery shall issue the writ forthwith.

The judgment of the Court of Appeal for Ontario (Robertson C.J.O. and Middleton, Fisher, Henderson and Gillanders JJ.A.) was delivered orally by Robertson C.J.O. as follows:

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We are all of the opinion that the applicant here has no status to require a mandamus to issue to the Clerk of the Crown in Chancery. We do not think this or any other Act confers upon him any specific legal right to ask for an election or to make a demand upon the Clerk of the Crown in Chancery for the issue of a writ.

Furthermore, we are of opinion that the issue by the Court of a mandamus would constitute an intrusion upon the functions and privileges of the Legislative Assembly itself. The Legislative Assembly has itself the right to declare when and by whom elections shall be held; it has reserved to officers designated by it certain functions in that regard but it has not handed over to the public in general or to prospective voters the right to control the acts of these various officers. On the contrary, we think it has, by quite obvious limitations in their power, reserved that right to be discharged in some other manner.

The appeal is, therefore, dismissed.

F.A. Brewin and J.P. Erichsen Brown for the appellant.

C.R. Magone, K.C., for the respondent and for the Attorney-General for Ontario.

The judgment of the Court was delivered by

THE CHIEF JUSTICE.—We are satisfied that the Court of Appeal was right in its view that the issue of a mandamus in this case “would constitute an intrusion upon the * * * privileges of the Legislative Assembly.”

We cannot agree with the contention, ably supported by the argument of Mr. Brewin, that section 34 of The Legislative Assembly Act confers jurisdiction upon the Courts in relation to Parliamentary elections. Any duty imposed by that section upon the Clerk of the Crown in Chancery is imposed upon him in his character of an officer under the control of the Legislative Assembly and answerable to the Legislative Assembly.

We think it proper to add that we express no opinion upon that part of the judgment of the Court of Appeal which deals with the status of the applicant to invoke the jurisdiction of the Courts if there were such jurisdiction. That is a question which we shall be free to consider whenever it may be necessary to pass upon it.

The appeal is dismissed. There is no order as to costs.

Appeal dismissed.

Solicitor for the appellant: J. Price Erichsen Brown.

Solicitor for the respondent and for the Attorney-General for Ontario: C.R. Magone.