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The Controverted Elections Act

REPEALED
Date: December 13, 2006

C.C.S.M. c. C210

THE CONTROVERTED ELECTIONS ACT

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           In this Act,

"candidate" means the person elected as member at any election and any person nominated as a candidate at such an election; (« candidat »)

"court" means the Court of Queen's Bench, and the expression "judge" means any one of the judges of the Court of Queen's Bench, and includes the chief justice; (« tribunal »)

"election" means the election of a member to serve in the assembly; (« élection »)

"election offence" means any act declared an election offence by any of the provisions of The Elections Act, or by any other Act or provision of law; (« infraction électorale »)

"election petition" means a petition complaining of an undue return or undue election of a member, or of no return, or of a double return, or of any unlawful act by any candidate not returned by which he is alleged to have become disqualified to sit in the assembly, or of the conduct of any returning or deputy returning officer; (« requête électorale »)

"electoral division" means any place or portion of this province entitled to return a member to the assembly; (« circonscription électorale »)

"member" means any person elected to serve as one of the members of the assembly; (« député »)

"prescribed" means prescribed by this Act or ordained by a rule made under this Act; (« prescrit »)

"registrar" means the registrar of the court; (« registraire »)

"rule" means any rule to which reference is made in section 86; (« règle »)

"Speaker" means the Speaker of the assembly; and when the office of Speaker is vacant or when the Speaker is absent from the province, or is unable to act, the clerk of the assembly, or any other officer for the time being discharging the duties of the clerk of the assembly. (« orateur »)

Elections subject to this Act

2           All elections of members of the assembly shall be subject to this Act; and their validity shall only be contested in conformity with this Act.

Jurisdiction of court

3           The court has jurisdiction over election petitions, and over all proceedings to be had in relation thereto.

Where petition is to be presented

4           The cause of action shall be deemed to have arisen at the place where the election was held; but the election petition shall be presented at Winnipeg, and shall be tried in the place determined in conformity with this Act.

Authority of a judge in chambers

5           In all proceedings under this Act, a judge in chambers, whether in term or vacation, has the same powers, jurisdiction, and authority, as the court.

Precedence

6           Proceedings under this Act have precedence over all other causes or proceedings.

Powers of officers

7           The various officers of the court, with reference to all election petitions, have the same powers, and are subject to the same duties and obligations, as if the petition were an ordinary proceeding within the jurisdiction of the court.

Presentation of petition

8           A petition may be filed in the court by:

(a) a person who had a right to vote at the election to which the petition relates; or

(b) a candidate at that election.

Affidavit to accompany petition

9           At the time of the presentation of the petition, there shall also be presented therewith an affidavit by the petitioner that he has good reason to believe, and verily does believe, that the person against whom the petition is filed, or his agent, has been guilty of election offences sufficient to avoid the election; and, thereafter, if any elector is substituted for the petitioner, the elector, before being so substituted, shall make and file an affidavit to the same effect.

Sitting member may prove

10          Nothing herein prevents the sitting member from proving, on the trial of a petition under this Act complaining of an undue return and claiming the seat for any person, that the person was not duly elected.

Complaint of no return

11          Whenever a petition under this Act, complaining of no return, is presented, an order may be made thereon by the court as is deemed expedient for compelling a return to be made; or the court may allow the petition to be tried in the manner herein provided with respect to ordinary election petitions.

Complaint of conduct of returning officer

12          Where an election petition complains of the conduct of a returning officer, the returning officer shall, for all the purposes of this Act, except the admission of respondents in his place, be deemed to be a respondent.

Two or more candidates may be made respondents

13          Two or more candidates may be made respondents to the same petition, and their cases may, for the sake of convenience, be tried at the same time; but, as regards the security to be given on behalf of the petitioner, and for all other purposes of this Act, the petition shall be deemed to be a separate petition against each respondent.

Form and contents of petition

14          A petition presented under this Act may be in any prescribed form; but if, or in so far as, no form is prescribed, it need not be in any particular form, but it shall complain of the undue election or return of a member, or that no return has been made, or that a double return has been made, or of matter contained in any special return made, or of some such unlawful act as aforesaid by a candidate not returned; and it shall be signed by the petitioner, or all the petitioners if there are more than one.

Time of presentation

15(1)       The petition shall be presented not later than 30 days after the day of publication in The Manitoba Gazette of the notice of election by the Clerk of the Executive Council or the Chief Electoral Officer under The Elections Act, unless it questions the return or election upon an allegation of election offences, and specifically alleges a payment of money or other act of bribery by any member or on his account with his privity, since the time of the taking of the votes of the electors, in pursuance or in furtherance of the election offence; in which case the petition may be presented at any time within 30 days after the date of the payment or act.

Member may file petition

15(2)       Where a petition is presented at either time and on any ground, the sitting member against whose election and return the petition is presented may, not later than 15 days after service of the petition against his election and return, file a petition complaining of any unlawful act or election offence by any candidate at the same election who was not returned, or by any agent of any such candidate with his consent or privity.

How presentation made

16          Presentation of a petition shall be made by delivering it at the office of the registrar, during office hours, or in any other prescribed manner.

Security to be given for benefit of

17(1)       At the time of the presentation of the petition, security for the payment of all costs, charges, and expenses, that may become payable by the petitioner shall be given on behalf of the petitioner,

(a) to any person summoned as a witness on his behalf; or

(b) to the member of whose election or return complaint is made, to whom reference is hereinafter made as "the respondent"; or

(c) to the returning officer, if his conduct is complained of; or

(d) to the candidate not elected, of whose conduct complaint is made as aforesaid.

Amount of security

17(2)       The security shall be to the amount of $1,000., and shall be given by a deposit of money with the registrar.

Receipt by registrar

18          The registrar of the court shall give a receipt for the deposit, which is evidence of the sufficiency thereof.

Copy of petition to returning officer and publication

19(1)       On presentation of the petition, the registrar of the court shall send a copy thereof by mail to the returning officer of the electoral division to which the petition relates; and the returning officer shall forthwith publish a notice thereof once in a newspaper published in the electoral division, or, if there is no newspaper published in the division, then in a newspaper published in an adjoining division.

Form of notice in paper

19(2)       The notice may be in the following form:

Notice is hereby given that a petition has been presented under The Controverted Elections Act against the return of           , Esquire, as member of the Legislative Assembly of Manitoba for the electoral division of            and (where the seat is claimed) claiming the seat for           . Dated at           , the       day of           , 19  .

A.B.

Returning Officer.

Services

20          An election petition under this Act, and notice of the date of the presentation thereof, and a copy of the deposit receipt, shall be served as nearly as possible in the manner in which a statement of claim is served in civil matters, or in such other manner as is prescribed.

Notice to respondents

21          Notice of the presentation of a petition under this Act, and of the security, accompanied by a copy of the petition, shall, within 10 days after the day on which the petition has been presented, or within such longer time as a judge, under special circumstances of difficulty in effecting service, allows, be served on the respondent or respondents at some place within Manitoba.

If personal service is impossible

22          Where service cannot be effected on the respondent or respondents personally within the time granted by the judge, service upon such other person, or in such manner, as the judge on the application of the petitioner directs, shall be deemed good and sufficient service upon the respondent or respondents.

Answer to petition

23(1)       Within 16 days after the service of the petition and the accompanying notice the respondent may file a written answer to the petition, together with a copy thereof for the petitioner.

When petition at issue, and trial

23(2)       Whether an answer is or is not filed, the petition shall be at issue after the expiration of the 16 days; and a judge may, at any time thereafter, upon the application of either party, fix a convenient time and place for the trial of the petition.

Examination of parties to petition

24(1)       Any party to an election petition, whether petitioner or respondent, may, at any time after the petition is at issue, before or pending the trial thereof, be examined by or before a judge or special examiner, in the manner hereinafter directed, by a party adverse in point of interest touching any matter raised by the petition or answer.

Explanatory examination

24(2)       Any party so examined may be further examined on his own behalf, in relation to any matter respecting which he has been examined in chief; but the explanatory examination shall be proceeded with immediately after the examination in chief, and not at any future period, except by leave of a judge.

When there are several petitioners or respondents

24(3)       When one of several petitioners or respondents has been so examined, any other petitioner or respondent, united in interest, may be examined on his own behalf or on behalf of those united with him in interest, to the same extent as the party so examined.

Examination of defeated candidate

25          Where a petition has been filed claiming the seat for a candidate, the candidate, although not a party to the petition, may be orally examined as if he were a petitioner.

How examination shall be conducted

26(1)       Any party examined orally under this Act shall be examined by or before a judge, a master, registrar, or special examiner of the court or before any barrister-at-law named for the purpose by a judge.

Method of examination

26(2)       The examination shall take place in the presence of the parties, their counsel, agents or attorneys; and the party so examined orally is subject to cross-examination and re-examination; and the examination, cross-examination, and re-examination, shall be conducted as nearly as possible in the manner prescribed by The Queen's Bench rules for the examination for discovery of parties to actions.

Form of depositions

27(1)       The depositions taken upon any such oral examination shall be taken down in writing by the examiner, not ordinarily by question and answer but in the form of a narrative; and when completed shall be read over to the witness and signed by him in the presence of the parties, or of such of them as think fit to attend.

Signing

27(2)       Where the witness refuses or is unable to sign the depositions, the examiner shall sign them.

Special matter

27(3)       The examiner may, upon every examination, state any special matter to the court if he thinks fit.

Questions

27(4)       It is in the discretion of the examiner to put down any particular question or answer, if there appears to be any special reason for so doing.

Note of questions objected to

27(5)       Any question to which objection is taken shall, at the request of either party, be noted or referred to by the examiner in or upon the depositions; and he shall state his opinion thereon to the counsel, agents, attorneys, or parties; and, if requested by either party, he shall note such statement on the face of the depositions.

Examination in shorthand

27(6)       Where an examination is had or taken before, or otherwise than at, the trial, if the examining party desires to have the examination taken in shorthand, he is, unless otherwise ordered by the court or a judge, entitled to have it so taken at the place of examination by the examiner or by a shorthand writer approved and duly sworn by him.

Where examination is taken in shorthand, effect

27(7)       Where taken in shorthand the examination may be taken down by question and answer; and, unless otherwise ordered, it is not necessary for the depositions to be read over to or signed by the person examined, unless the judge so directs where the examination is taken before a judge, or in other cases unless any of the parties so desire.

Effect of copy of depositions

27(8)       A copy of the depositions so taken, certified by the person taking it as correct, and, if that person is not the examiner, also signed by the examiner, has, for all purposes, the same effect as the original depositions in ordinary cases.

Depositions to be forwarded to the court

28          When the examination before the examiner is concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the office of the court to be there filed; and any party to the petition may have a copy thereof, or of any part or portion thereof, upon payment of such fees as would be payable in ordinary proceedings in the court.

Compelling attendance of parties to be examined

29          The attendance of a party or other person, for oral examination or cross-examination before the examiner, may be compelled by a writ of subpoena ad testificandum or duces tecum, in like manner as the attendance of the party or person at the trial of the petition may be compelled; and any party or person, upon being served with such a writ, is bound to attend before the examiner; but the party or person is entitled to the like payment for attendance and expenses as if he had been subpoenaed to attend upon the trial.

Persons in custody

30          The sheriff, gaoler or other officer having the custody of any prisoner shall take the prisoner for examination before the examiner, if so ordered by a judge.

Notice of examination

31          Forty-eight hours' notice of any such oral examination or cross-examination shall be given to the opposite party or parties.

Punishment for neglect or refusal to attend, or for refusal to answer

32(1)       Any party or person who refuses or neglects to attend at the time and place appointed for his examination or cross-examination, or who refuses to be sworn, or to answer any lawful question put to him by the examiner, or by any person entitled so to do, or his counsel, agent, attorney, or solicitor, may be punished as for a contempt of court.

Witness may demur to questions

32(2)       When any witness demurs or objects to any question put to him, the question so put and the demurrer or objection of the witness thereto shall be taken down by the examiner and transmitted by him to the office of the court to be there filed; and the validity of the demurrer or objection shall be decided by a judge, and the costs of, and occasioned by, the demurrer or objection shall be in the discretion of the judge.

Use of depositions

33          Any party may, at the trial or other proceeding, use in evidence any part of the examination of the opposite party; but, in that case, the judge may look at the whole of the examination, and, if he is of the opinion that any other part is so connected with the part to be so used that the last mentioned part ought not to be used without that other part, he may direct that other part to be put in evidence.

Production of documents

34(1)       Any party to an election petition, whether petitioner or respondent, may, at any time after the petition is at issue, before or pending the trial thereof, obtain an order of the court requiring the adverse party to produce, within 10 days after the service thereof, under oath, all documents in his custody or power relating to the matters in question, saving all just exceptions, and to deposit the documents with the registrar of the court; and, upon the documents being produced, the party requiring the production, or his agent, attorney, or solicitor, may inspect them and take copies thereof.

Just exceptions

34(2)       Where any person upon whom an order to produce has been served wishes to avail himself of any just exception, he shall, in his affidavit on production, assign a sufficient reason why he should not produce and deposit the documents in the manner aforesaid.

Obtaining order for production

35          The order shall be dated the day of the month and year on which it was drawn up and it need not specify any other time or date; and it may be obtained by the party requiring it, his agent, attorney, or solicitor, from the registrar of the court.

Service of order

36          Personal service of an order for the production of documents is not required; and it is sufficient to serve it upon the agent, attorney, or solicitor, of the party.

Affidavit on production

37          The affidavit on production to be made by the party who has been served with the order for production may be in the form, or to the effect, set out in the Schedule, varied as the facts require.

Offence

38          Any party who refuses, neglects, omits, or fails to obey an order for the production of documents may be punished as for a contempt of court.

List of petitions at issue and inspection

39(1)       The registrar of the court shall, as soon as possible, make out a list of all petitions presented under this Act, that are at issue placing them in the order in which they were presented; and he shall keep at his office a copy of the list open to the inspection of any person making application.

Order for trial

39(2)       The petitions, as far as conveniently may be, shall be tried in the order in which they stand on the list.

Where more than one petition presented

40          Where, under this Act, more petitions than one are presented relating to the same election or return, all those petitions shall, in the election list, be bracketed together, and shall be dealt with, as far as may be, as one petition; but the petitions shall stand in the election list in the place where the last presented of them would have stood if it had been the only one presented as to that election or return, unless a judge otherwise orders.

Trial of petition

41(1)       Every election petition shall be tried by two judges without a jury; and it is competent for the judges, on the trial, to decide any question raised as to the admissibility of the evidence offered, or to receive the evidence under reserve and subject to adjudication at the final hearing.

Place of trial

41(2)       The trial of an election petition shall take place in the electoral division the election or return for which is in question; but, if it appears to a judge that special circumstances exist that make it desirable that the petition should be tried elsewhere than in that electoral division, the judge may appoint such other place for the trial as appears most convenient.

Notice of trial

41(3)       Notice of the time and place at which an election petition will be tried shall be given not less than 14 days before the day on which the trial is to take place.

Adjournments

41(4)       The trial judges may adjourn the trial from time to time, and from one place to another in the same electoral division, as to them seems convenient, or, upon cause shown supported by affidavit, where special circumstances exist that in their opinion render it desirable so to do, from one place to another outside the electoral division, or from a place inside to a place outside the electoral division, or vice versa.

Commencement of trial

42(1)       The trial of every election petition shall be commenced within six months from the time when the petition is presented, and shall be proceeded with from day to day until the trial is over; but if, at any time, it appears to a judge that the respondent's presence at the trial is necessary, the trial shall not be commenced during a session of the Legislature, if the respondent is a member; and in the computation of any time or delay allowed for any step or proceeding in respect of a trial, or for the commencement thereof as aforesaid, the time occupied by the session of the Legislature shall not be included.

Substitute for petitioner in case of delay

42(2)       Where, at the expiration of three months after the petition has been presented, the day for the trial has not been fixed, any elector may, on application, be substituted for the petitioner on such terms as the judge thinks just.

Dismissal of petition when delay in bringing to trial

42(3)       Where the trial of the petition is not brought on by the petitioner within six months from the date of the presentation thereof, or within such further time as a judge, upon the application of the petitioner to be made before the expiration of that six months, in his discretion allows, the petition shall be dismissed and the money deposited by the petitioner in accordance with section 17 is forfeited to the Crown for the use of the government, less any sums that should be paid out to any of the persons mentioned in that section for the costs, charges, and expenses, incurred by them in consequence of the proceedings under the petition.

Taxing of costs

42(4)       The costs, charges, and expenses shall first be taxed by the registrar; and the sum so taxed shall be paid by him out of the deposit to the person entitled thereto.

Enlargement

43          A judge may, notwithstanding section 42, from time to time enlarge the time for the commencement of the trial, if, on an application for that purpose supported by affidavit, it appears to the judge that the requirements of justice render the enlargement necessary.

Judges to be received and attended as at jury trials

44          The judges shall be received and attended, at the place where they are about to try an election petition under this Act, in the same manner, as far as circumstances will admit, as a judge of the Court of Queen's Bench at a sitting for trial by jury; and the expenses of the attendance shall be deemed part of the expenses of providing a court.

Powers of the trial judge

45          On the trial of an election petition and in other proceedings under this Act, the trial judges have, subject to this Act, the same powers, jurisdiction, and authority, as a judge of the court presiding at the trial of an ordinary civil suit; and the court held by them for the trial shall be a court of record.

Inquiry as to election offences

46          Unless the trial judges otherwise direct, any charge of election offences may be gone into, and evidence in relation thereto received, before any proof has been given of agency on the part of any candidate in respect of the election offences.

Witnesses to be subpoenaed

47          Witnesses shall be subpoenaed and sworn in the same manner, as nearly as circumstances admit, as in cases within the ordinary jurisdiction of the courts.

Witnesses intending to leave Manitoba

48(1)       Where it is made to appear to a judge that a witness intends to leave Manitoba and cannot attend the trial of an election petition, on application to the judge on notice to the parties to the petition, the judge may make an order for the examination of that witness at a time and place, and before a person, to be named in the order.

Examination after notice

48(2)       The witness may thereupon be examined touching the matter complained of in the petition, if due notice of the time and place is given to the parties to the petition, who may, by their respective counsel, attend the examination, and examine, cross-examine, and re-examine, the witness.

Reduction of evidence to writing

48(3)       The examination shall be reduced to writing and signed by the witness; and, when duly returned by the examiner, and purporting to be certified by the examiner, it may be used by either party to the petition on the trial thereof.

Compelling attendance of witnesses, and penalty

48(4)       On the trial of an election petition under this Act, the trial judges may, by order under their hands, compel the attendance as a witness of any person who appears to them to have been concerned in the election to which the petition relates; and any person who refuses to obey such an order is guilty of contempt of court.

Judges may examine witnesses

48(5)       The trial judges may examine and re-examine any witness so compelled to attend or any person present, although the witness or person is not called and examined by any party to the petition; and, after the examination of a witness as aforesaid by the trial judges, the witness may be cross-examined by, or on behalf of, the petitioner and respondent, or either of them.

Securing attendance of reluctant witness

48(6)       Upon proof to the satisfaction of the trial judges of the service of a subpoena upon any witness who fails to attend or to remain in attendance in accordance with the requirements of the subpoena, and that a sufficient sum for his fees as a witness has been duly paid or tendered to him, and that the presence of the witness is material to the ends of justice, the trial judges may by their warrant, directed to any sheriff or officer of the court or constable, cause the witness to be apprehended, and forthwith brought before them or any other judges who may thereafter preside at the trial, to give evidence.

Apprehension, custody, and release of witness

48(7)       In order to secure his presence as a witness, the witness may be taken on such a warrant before the trial judges and detained in the custody of the person to whom the warrant is directed, or otherwise as the trial judges may order, until his presence as a witness is required, or, in the discretion of the trial judges, he may be released on a recognizance, with or without sureties, conditioned for his appearance to give evidence.

Provision for expenses of witness

49(1)        The reasonable expenses incurred by any person in appearing to give evidence at the trial of an election petition under this Act, according to the scale allowed to witnesses on the trial of civil actions in the court, may be allowed to that person by a certificate under the hand of one of the trial judges or of the registrar of the court.

Payment of expenses

49(2)       The expenses, if the witness was called and examined by the trial judges, shall be deemed part of the expenses of providing a court, and in other cases shall be deemed costs of the party calling the witness, and shall be taxed against such party interested in the trial of the petition, as the trial judges determine.

Shorthand writer and his expenses

50          The trial judges may, in their discretion, employ a shorthand writer to take down the oral evidence given by witnesses at the trial of the petition; and the expense of employing the shorthand writer shall be costs in the case.

Evidence when the seat is claimed for person not returned

51          On the trial of a petition under this Act complaining of an undue return and claiming the seat for any person, the respondent may give evidence to show that the election of that person was undue in the same manner as if he had presented a petition complaining of the election.

Votes to be struck off in certain cases

52          Where, on the trial of an election petition claiming the seat for any person, a candidate is proved to have been guilty, by himself or by any person on his behalf, of bribery, treating, or undue influence with respect to any person who voted at the election, or where any person retained or employed for reward by or on behalf of a

candidate, for all or any of the purposes of the election, as agent, clerk, or messenger, or in any other employment, is proved on the trial to have voted at the election, there shall, on the trial of the election petition, be struck off from the number of votes appearing to have been given to the candidate, one vote for every person who voted at the election, and who is proved to have been so bribed, treated, or unduly influenced, or so retained or employed for reward as aforesaid.

Election of candidate void for election offence

53          Where it is found by the report of the trial judges that any election offence has been committed by a candidate at an election, or by his agent, whether with or without the actual knowledge and consent of the candidate, the election of the candidate, if he has been elected, is void.

Election of candidate void for employing agent formerly guilty

54          Where, on the trial of an election petition, a candidate is proved to have personally engaged any person at the election to which the petition relates, as a canvasser or agent in relation to the election, knowing that the person so engaged has, within eight years previous to the engagement, been found guilty of any election offence, by any competent legal tribunal, or by the report of any judge or other tribunal for the trial of election petitions, the election of the candidate, if he has been elected, is void.

Application of secs. 52 to 54

55          Sections 52 to 54 do not apply to any acts done at an election other than the election to which the petition refers, except as to the personal acts of the candidates, and the acts of their agents done with the knowledge and consent of the candidates.

Treating as a corrupt practice

56          Where, on the trial of an election competition, it is proved that a candidate corruptly, by himself or by or with any other person, or by any other ways or means on his behalf, at any time, either before or during the election, directly or indirectly,

(a) gave or provided; or

(b) caused to be given or provided; or

(c) was accessory to the giving or providing; or

(d) paid wholly or in part any expenses incurred for;

any meat, drink, refreshment, or provision, to or for any person,

(e) in order to be elected; or

(f) for being elected; or

(g) for the purpose of corruptly influencing that person or any other person to give or refrain from giving his vote at the election;

there shall be struck off from the number of votes given for the candidate one vote for each person who has voted and is proved on the trial to have corruptly accepted or taken any such meat, drink, refreshment, or provision.

Effect of election offences if proven

57          Where, on the trial of an election petition, it is proved that any election offence has been committed by or with the actual knowledge and consent of a candidate at an election, or where the candidate is convicted before a competent court of bribery or undue influence, he shall be held guilty of election offences, and his election, if he has been elected, is void.

Candidate exonerated

58          Where, on the trial of an election petition, the trial judges decide that a candidate at the election was guilty, by his agent or agents, of any offence that would render his election void, and further find

(a) that no election offence was committed at the election by the candidate personally, and that the offences mentioned were committed contrary to the order, and without the sanction or connivance, of the candidate; and

(b) that the candidate took all reasonable means for preventing the commission of election offences at the election; and

(c) that the offences mentioned were of a trivial, unimportant, and limited character; and

(d) that in all other respects, so far as disclosed by the evidence, the election was free from any election offence on the part of the candidate and of his agents;

then the election of the candidate is not, by reason of the offences mentioned, void, and the candidate is not subject to any incapacity therefor.

Election voided if personation committed

59          Where, on the trial of an election petition, a candidate is found by the report of the trial judges to have by himself or his agents, with his actual knowledge and consent, aided, abetted, counselled, or procured, the commission at the election of the offence of personation by any person, his election, if he has been elected, shall be declared to be void.

Decision and certificate of trial judges

60(1)       At the conclusion of the trial, the trial judges shall determine whether the member of whose election or return complaint is made, or any other person and, if so, what other person, was duly returned or elected, or whether the election was void, and other matters arising out of the petition, and requiring their determination; and they shall, except in the case of appeal hereinafter mentioned, within four days after the expiration of the time limited for appealing from their decision, certify in writing their determination to the Speaker, appending thereto a copy of the notes of evidence.

To be final

60(2)       The determination thus certified is final to all intents and purposes.

Both judges to sign certificate and report

61(1)       Every certificate and every report sent to the Speaker in pursuance of this Act shall be under the hands of both judges.

When judges differ

61(2)       Where the trial judges differ as to whether the member whose return or election is complained of was duly returned or elected, they shall certify that difference, and the member shall be deemed duly elected or returned.

Differ in part

61(3)       Where the trial judges determine that the member was not duly elected or returned, but differ as to the rest of the determination, they shall certify that difference, and the election shall be deemed to be void.

Differ re report to Speaker

61(4)       Where the trial judges differ as to the subject of a report to the Speaker, they shall certify that difference and make no report on the subject on which they so differ.

Report of judge to Speaker

62          Where, in an election petition, a charge is made of any election offence having been committed at the election to which the petition relates, the trial judges shall, in addition to the certificate, and at the same time, report in writing to the Speaker

(a) whether any election offence has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, stating the name of the candidate, and the nature of the election offence;

(b) the names of any persons who have been proved at the trial to have been guilty of any election offence;

(c) whether election offences have, or whether there is reason to believe that election offences have, extensively prevailed at the election to which the petition relates; and

(d) whether they are of opinion that the inquiry into the circumstances of the election has been rendered incomplete by the action of any of the parties to the petition, and that further inquiry as to whether election offences have extensively prevailed is desirable.

Special report may be made

63          The trial judges may, at the same time, make a special report to the Speaker as to any matters arising in the course of the trial, an account of which ought, in their judgment, to be submitted to the assembly.

Single judge may act

64          Except where otherwise expressly provided by this Act, any order, act, application, or thing, for the purpose of this Act may be made or done by, to, or before, a single judge.

Special case

65(1)       Where, upon the application of any party to an election petition duly made to the trial judges assigned to hear the petition, it appears to the judges that the case raised by the petition can be conveniently stated as a special case, the trial judges may direct it to be so stated.

Procedure on special case being heard

65(2)       Any such special case shall, as far as possible, be heard before the trial judges, who shall thereupon give such judgment as to justice appertains; and, if the decision is final, the trial judges shall certify to the Speaker their decision on the special case in the manner, and within the time for which provision is hereinbefore made in cases of election trials.

Court of Appeal

66          An appeal by any party to an election petition, who is dissatisfied with any judgment, rule, order, or decision, of the court or a judge, lies to The Court of Appeal for Manitoba.

Procedure on appeal

67          The procedure on appeals to The Court of Appeal for Manitoba shall be such as is provided in The Queen's Bench Act and in The Court of Appeal Act.

Report and certificate as to election offences

68          Where an appeal, as provided by this Act, is made to The Court of Appeal from the judgment or decision of the trial judges, they shall make to The Court of Appeal the report and certificate with respect to election offences hereinbefore directed to be made, and may make the special report as to any matters arising in the course of the trial as hereinbefore provided.

Report to the Speaker

69          The registrar of The Court of Appeal shall certify to the Speaker of the Assembly, the judgment and decision of The Court of Appeal, confirming, changing or annulling any decision, report, or finding of the trial judges upon the several questions of law as well as of fact upon which the appeal was made; and therein he shall certify as to the matters and things as to which the trial judges would have been required to report to the Speaker, whether they are confirmed, annulled, changed, or left unaffected by the decision of The Court of Appeal.

Duty of Speaker

70          The Speaker shall, at the earliest practicable moment after he receives the certificates and report or reports, if any, of the trial judges or of The Court of Appeal, give the necessary directions, and adopt all the proceedings necessary for confirming or altering the return, or, except as hereinafter mentioned, for the issuing of a writ for a new election, (for which purpose the Speaker shall proceed as in the case of the resignation of a member), or for otherwise carrying the determination into execution, as circumstances require.

The Speaker to inform the assembly

71          The Speaker shall, without delay, communicate to the assembly the determination, report, and certificate, of the trial judges or of The Court of Appeal, and his own proceedings thereon; and, when the trial judges or The Court of Appeal make a special report, the assembly may make such order in respect of the special report as it thinks proper.

No new writ for a new election except by order of the assembly

72          Where the trial judges or The Court of Appeal, in their report on the trial of an election petition under this Act, state that election offences have, or that there is reason to believe that election offences have, extensively prevailed at the election to which the petition relates, or that they are of opinion that the inquiry into the circumstances of the election has been rendered incomplete by the action of any of the parties to the petition,

and that further inquiry as to whether election offences have extensively prevailed is desirable, no new writ shall issue for a new election in that case except by order of the assembly.

Costs of proceedings

73(1)       All costs, charges, and expenses of, and incidental to, the presentation of an election petition under this Act, and to the proceedings consequent thereon, with the exception of such costs, charges, and expenses, as are by this Act otherwise provided for, shall be defrayed by the parties to, or those opposing, the petition, in such manner and in such proportions as the court or trial judges determine, regard being had

(a) to the disallowance of any costs, charges, or expenses, that, in the opinion of the court or trial judges, have been caused by vexatious conduct, unfounded allegations, or unfounded objections, on the part either of the petitioner or of the respondent; and

(b) to the discouragement of any needless expense by throwing the burden of defraying it on the parties by whom it has been caused, whether those parties are or are not on the whole successful.

Taxation of costs

73(2)       The costs may be taxed in the manner that, and according to the same principles under which, costs are taxed between parties in actions in the court; and the costs are recoverable in a manner that is the same as that in which costs are recoverable in those actions.

Taxation of counsel fees

74(1)       Where the trial does not last longer than one day, no counsel fee or fees shall be taxed, as between party and party, in respect thereof or in connection therewith greater than $50., and where the trial continues beyond one day, a sum not exceeding $40. for each additional day the trial continues, whether one or more counsel are engaged at the trial.

Limitation of costs

74(2)       Except as to such witness fees and other actual disbursements, in respect of evidence taxable in ordinary actions between party and party, as are allowed by the judgment or order of the court allowing or apportioning costs, no amount including counsel fees, greater than $300. shall be taxed or taxable against either party as costs in the cause.

When costs paid out of deposit

75(1)       Where costs are awarded in favour of any party against a petitioner, that party is, after the expiration of 30 days from the rendering of the decision by the trial judges, or, in case of an appeal, by The Court of Appeal, upon the production of a certificate of taxation from the proper officer, entitled to receive out of the deposit the amount taxed to him as aforesaid, if the aggregate of the costs taxed against the petitioner, certificates whereof are within the period of 30 days filed with the registrar, clerk, or other proper officer, does not exceed the deposit.

If deposit is insufficient

75(2)       Where the total amount of the certificates so filed as aforesaid exceeds the deposit, each such party is entitled to recover out of the deposit his proportion thereof.

Execution for balance

75(3)       In a case to which subsection (2) applies, the party is entitled forthwith to issue execution, according to the practice in ordinary cases, against the petitioner's goods or lands, for the residue of the costs so taxed to him as aforesaid.

Order of Court of Appeal as to costs, and recovery

76          In appeals under this Act, The Court of Appeal may adjudge the whole or any part of the costs in the court below to be paid by either of the parties; and any order directing the payment of such costs shall be certified by the registrar of The Court of Appeal to the court in which the petition was filed, and the same proceedings for the recovery of those costs may thereupon be taken in the last mentioned court as if the order for payment of costs had been made by that court or by the judges before whom the petition was tried.

Agent to pay costs in certain cases

77(1)       Where, on the trial of an election petition, it is proved that any election offence has been committed by an agent of the candidate without the knowledge and consent of the candidate, or where it is determined that the election is void by reason of an act of an agent committed without the knowledge and consent of the candidate, and the trial judges are of opinion that costs should be awarded to the petitioner or other party alleging the election offence, the agent may be condemned to pay the costs.

Agent to be summoned

77(2)       In a case to which subsection (1) applies the trial judges shall order that the agent be summoned to appear, at a time fixed in the summons, in order to determine whether he shall be condemned to pay the costs.

When agent does not appear

77(3)       If, at any time so fixed, the agent so summoned does not appear, he shall be condemned, on the evidence already adduced, to pay the whole or a due proportion of the costs awarded to the petitioner or other party aforesaid; and, if he appears, the court or the trial judges, after hearing the parties and such evidence as is adduced, shall give such judgment as to law and justice appertains.

Process to recover costs

77(4)       The party to receive the costs shall have process to recover the costs against the agent in like manner as he might have such process against the respondent; and no process shall issue against the respondent to recover the costs, nor shall the sum be paid out of any money deposited as security, until after the return of process against the agent.

No withdrawal except by leave

78(1)       No election petition under this Act shall be withdrawn without the leave of the court or trial judges, according as the petition is then before the court or before the trial judges, upon special application made therefor.

Notice of intention

78(2)       No such application shall be made until notice has been given, in the electoral division to which the petition relates, of the intention of the petitioner to make an application for the withdrawal of his petition.

Competent person may be substituted as petitioner

78(3)       On the hearing of the application for withdrawal, any person, who might have been a petitioner in respect of the election to which the petition relates, may apply to the court or trial judges to be substituted as a petitioner for the petitioner so desirous of withdrawing the petition.

Substitution may be ordered and security retained

78(4)       The court or trial judges may, if it or they think fit, substitute as petitioner any such applicant; and the court or trial judges may also, if the proposed withdrawal is, in its or their opinion, induced by any corrupt bargain or consideration, order that the security given on behalf of the original petitioner shall remain as security for any costs that may be incurred by the substituted petitioner, and that, to the extent of the sum named in the security, the original petitioner shall be liable to pay the costs of the substituted petitioner.

Where no order is made

78(5)       Where no such order is made with respect to the security given on behalf of the original petitioner, security to the same amount that would be required in the case of a new petition, and subject to the like conditions, shall be given on behalf of the substituted petitioner before he proceeds with his petition, and within five days after the order of substitution.

Effect of substitution

78(6)       Subject as aforesaid, a substituted petitioner stands in the same position, as nearly as may be, and is subject to the same liabilities, as the original petitioner.

Costs if petition is withdrawn

78(7)       Where an election petition is withdrawn, the petitioner is liable to pay the costs of the respondent, unless the court or trial judges otherwise order, and when there are more petitioners than one, no application to withdraw a petition shall be made except with the consent of all the petitioners.

Where withdrawal is corrupt

79          Where an election petition is withdrawn, if the court or trial judges are of opinion that the withdrawal of the petition was the result of any corrupt arrangement or in consideration of the withdrawal of any other petition, the court or trial judges shall report that opinion to the Speaker, stating the reasons therefor and the circumstances attending the withdrawal.

Abatement by death of petitioner

80(1)       An election petition under this Act is abated by the death of a sole petitioner, or of the survivor of several petitioners.

Payment of costs not affected

80(2)       The abatement of a petition does not affect any liability for the payment of costs previously incurred.

Procedure on abatement

80(3)       On the abatement of a petition, notice of the abatement having taken place shall be given in the electoral division to which the petition relates; and, within 10 days after the notice is given, any person who might have been a petitioner in respect of the election to which the petition relates may apply to the court or trial judges, to be substituted as a petitioner.

Order for substitution

80(4)       The court or trial judges may, if it or they think fit, substitute as a petitioner any such applicant who is desirous of being substituted, and on whose behalf security to the same amount is given as is required in the case of a new petition.

Notice of abatement, death, etc., of respondent

81(1)       Where, before or during the trial of an election petition under this Act,

(a) the respondent dies; or

(b) the assembly resolves that the respondent's seat is vacant; or

(c) the respondent gives notice to the court or trial judges that he does not intend to oppose, or further to oppose, the petition;

notice of that event shall be given in the electoral division to which the petition relates.

Substitution of new respondent

81(2)       Within 10 days after the notice is given, any person who might have been a petitioner in respect of the election to which the petition relates, may apply to the court or trial judges to be admitted as a respondent to oppose the petition or so much thereof as remains undisposed of, and that person shall, on that application, be admitted accordingly to oppose the petition or such undisposed portion thereof, either with the respondent, if there is one, or in place of the respondent; and any number of persons, not exceeding three, may be so admitted.

Adjournment of trial

81(3)       Where any such event happens during the trial, the trial judges shall adjourn the trial, in order that notice that the event has happened may be given as herein provided; and the person or persons so admitted are subject to the same liability as the respondent with respect to any costs thereafter incurred.

Order as to costs when respondent dies

82          Notwithstanding the abatement of a petition by reason of the death of the respondent, the court or trial judges may make such an order, not inconsistent with this Act, for the payment of costs previously incurred, and for the payment out of court of any moneys deposited as security for costs, as to justice may appertain.

Respondent not opposing petition

83          A respondent who has given notice that he does not intend to oppose, or further oppose, the petition shall not be allowed to appear or act as a party against the petition in any proceedings thereon, and shall not sit or vote in the assembly until the assembly has been informed of the report on the petition; and the court or trial judges shall, in all cases in which such a notice has been given, report the fact to the Speaker.

Notice, how given

84          Where notice is required to be given in an electoral division, the notice may be published in a newspaper published in the electoral division, and if none is published therein, in a newspaper published near the electoral division and having a circulation therein.

Where double return and respondent not opposing

85          Where an election petition complains of a double return, and the respondent has given notice that it is not his intention to oppose the petition, and no party has been admitted, in pursuance of this Act, to oppose the petition, the petitioner, if there is no petition complaining of the other member returned on the double return, may withdraw his petition, by notice addressed to the prescribed officer; and, upon the withdrawal, the registrar shall report the fact to the Speaker, and the assembly shall, thereupon, give the necessary directions for amending the double return in such manner as the case requires.

Rules of court apply

86          Except where they are inconsistent with any provision of this Act, the rules of the court apply to election petitions.

Extension of time

87          Where sufficient cause is shown, the court may, on the application of any of the parties to a petition, extend the period limited by this Act for taking any steps or proceedings by that party.

Who entitled to practise

88          Every person who, according to the law of the province, is entitled to practise as an attorney-at-law or solicitor before the court may practise as attorney, solicitor, or agent; and any person who, according to that law, is entitled to practise as a barrister-at-law before the court, may practise as counsel, in the case of an election petition, and all matters relating thereto, before the court or trial judges.

Where respondent accepts office or resigns seat

89          An election petition may be presented, and the trial of an election petition shall be proceeded with, notwithstanding the acceptance by the respondent of an office of profit under the Crown or the resignation of his seat; but the respondent may, notwithstanding anything in this or any other Act, accept office at any time after the election, subject to The Legislative Assembly Act.

All elections governed by Act

90          All elections are subject to this Act, and shall not be questioned otherwise than in accordance with this Act.

Dismissal of petition or proceeding

91(1)       Where an election petition is filed or proceedings are commenced under this Act or The Elections Act, the judges who have been appointed to hear the petition or proceeding, or, if no such judges have been appointed, any judge of the court, upon application of counsel representing all the parties to the petition or proceeding, may make an order dismissing the petition or setting aside the proceeding.

Effect of order

91(2)       After such an order is made, no other person shall file a petition or commence proceedings for the same purpose for which any such petition or proceeding was filed or commenced.

To whom application to be made

91(3)       Such applications may be made to any judge of the Court of Queen's Bench, sitting in the court house in The City of Winnipeg.