Background
Joseph Anglin served as a Member of the Legislative Assembly of Alberta from 2012 to 2015, when he lost his seat in the provincial election. During that campaign, Alberta’s Chief Electoral Officer (CEO), Glen Resler, ordered the removal of more than 25 of Anglin’s election signs on the grounds that they improperly identified him as “MLA” after the election writ was issued and that required sponsorship information was undersized. Resler imposed a $250 administrative penalty for the signage breach and, after a member of the public discovered a found copy of an electors list traceable to Anglin, launched a separate investigation that resulted in a $500 penalty (later rescinded after courts found Anglin had been denied procedural fairness). Anglin’s attempts to obtain judicial review of those decisions were unsuccessful.
In April 2017, Anglin commenced a civil action against Resler, accepting the 2015 election result but alleging that Resler had exercised public powers for improper or ulterior motives — knowing that doing so was likely to harm him — thereby causing him losses including the loss of a chance of re-election. Resler moved to strike the claim, arguing it was a collateral attack on the election, an abuse of process, and that his conduct was shielded by parliamentary privilege and by the good-faith immunity in s. 5.1(1) of Alberta’s Election Act.
The chambers judge struck the entire claim as an abuse of process. The Alberta Court of Appeal reinstated most of it, striking only the malicious prosecution allegations. Resler appealed to the Supreme Court of Canada. Four provincial attorneys general and two chief electoral officers intervened.
The Court’s Holding
The Supreme Court dismissed Resler’s appeal six-to-three, with Wagner C.J. and Karakatsanis and Martin JJ. dissenting in part. The majority (Moreau J., writing for Kasirer, Jamal, and O’Bonsawin JJ.) held that Anglin’s civil claim may proceed. The claim is not a collateral attack on the 2015 election result because Anglin seeks monetary compensation for bad-faith conduct, not any remedy affecting the election outcome, and therefore does not impermissibly circumvent the Election Act‘s controverted elections process. Parliamentary privilege similarly does not apply because Anglin’s claim does not challenge the composition of the Legislative Assembly. On immunity, the majority read s. 5.1(1)’s “good faith” carve-out as a deliberate legislative choice to leave civil claims for bad-faith conduct available; the Legislature could have enacted absolute immunity and did not.
Finding no procedural bar, the majority assessed whether the pleadings disclosed a reasonable cause of action and concluded they did. The statement of claim sufficiently pleads misfeasance in public office — a tort requiring a public official’s deliberate unlawful act carried out with knowledge that it was unlawful and likely to cause harm — by alleging Resler’s position and duties, malicious intent, and material damages. A trespass to chattel claim was also allowed to stand. The majority deferred the availability of loss-of-chance damages in electoral contexts to the trial judge, noting that loss of chance in Canadian tort law remains unsettled and raises unresolved causation questions.
Rowe J. (Côté J. concurring) wrote separately to agree with the majority and to criticize the partial dissent’s willingness to strike the loss-of-chance claim on issues neither litigated below nor argued on appeal, and its invocation of a free-standing public-policy power to reject claims — an approach previously rejected by the Court. Karakatsanis J. (Wagner C.J. and Martin J.) agreed the core misfeasance and trespass claims should proceed but would have struck the loss-of-chance damages claim at this stage, reasoning that the inherent unpredictability of electoral outcomes makes causation impossible to determine and that allowing such damages would risk impugning election results outside the statutory controverted-elections scheme.
Key Takeaways
- A civil claim against an elections officer for misfeasance in public office is not automatically barred as a collateral attack or abuse of process where the plaintiff accepts the election result and seeks only monetary compensation for alleged bad-faith conduct.
- Alberta’s Election Act s. 5.1(1) immunity is qualified, not absolute: because the Legislature confined it to acts done “in good faith,” plaintiffs who plead bad faith retain a path to civil court.
- Parliamentary privilege protecting the integrity of the Legislative Assembly’s composition does not extend to shield an elections officer from a damages claim that does not challenge who sits in the legislature.
- Whether loss-of-chance damages are recoverable in electoral tort litigation remains an open question in Canadian law; the majority and concurrence declined to resolve it on a motion to strike.
- The concurring justices reaffirmed the principle of party presentation: courts should not resolve issues unraised by the parties or unaddressed by the courts below, particularly on a motion to strike.
Why It Matters
This decision confirms that chief electoral officers and other public officials who administer elections do not enjoy blanket civil immunity. Where a legislature has preserved liability for bad-faith conduct, defeated candidates and other affected parties may pursue tort claims for misfeasance in public office, provided they target the officer’s conduct and not the election result itself. The ruling places meaningful accountability on electoral administrators across Canadian jurisdictions whose immunity statutes contain similar good-faith carve-outs.
The case also advances — without fully resolving — a significant doctrinal question about loss-of-chance damages in electoral contexts. The sharp disagreement between the majority and the partial dissent signals that Canadian courts will soon need to grapple directly with whether polling data and electoral volatility are too speculative to support probability-based damages, and with the broader question of how tort law should interface with statutory regimes for contesting elections.