MLA was subject to complaints about election signs and inappropriate use of voter list
An Alberta lawsuit alleging election interference will be allowed to proceed to trial following a ruling by the Supreme Court of Canada.
The court had been tasked with rendering a judgment on appeal in the case of Resler v. Anglin, 2026 SCC 23 and returned its verdict today. All nine justices agreed that the appeal should be dismissed and that Anglin can proceed with his suit against Resler, although there were dissents in part as to certain aspects of Anglin’s claims.
The facts of the Resler v. Anglin case
Anglin had been an MLA from 2012 to 2015 and was running for re-election. During the 2015 campaign, Anglin was subject to complaints about his election signs, specifically the inclusion of the term “MLA” in their wording. In his role as chief election officer, Resler investigated the situation and issued a $250 penalty to Anglin and ordered the removal of election signs.
Resler looked into Anglin’s campaign actions a second time after questions arose about the inappropriate use of a voter list. Resler, once again, imposed a monetary penalty on Anglin, this time for $500.
Anglin sought judicial review for both situations. The Court of Appeal found that Resler acted within his jurisdiction in the sign matter. The Alberta Court of Queen’s Bench found that Resler failed to treat Anglin fairly by failing to provide him a copy of the investigator’s report and rescinded the penalty. But it also found no capriciousness or malfeasance on Resler’s part in conducting the investigation.
Anglin continued to advance his case against Reslin, claiming that his actions, and the actions of others, were undertaken to give Anglin’s election opponents an unfair advantage and deny him the opportunity to re-election. As such, he was seeking $400,000 for the loss of a chance of being re-elected due to the wrongful interference with the election, $400,000 for loss of future employment, and $400,000 for harm to his reputation, his self-esteem, his emotional well-being and his future employment opportunities, as well as $1 million in punitive damages, for a total of $2.2 million.
Reslin motioned to strike Anglin’s claim because it was frivolous, irrelevant or improper. He also argued that the allegations would cast doubt on the election's validity and that he, as the chief electoral officer, was immune from liability.
The SCC's decision in Resler v. Anglin
The reasoning for the decision comes from Justice Mary Moreau, with Justices Nicholas Kasirer, Mahmud Jamal, and Michelle O’Bonsawin concurring. Justice Malcolm Rowe wrote the concurring reasoning, supported by Justice Suzanne Côté, while Justice Andromache Karakatsanis penned the dissent in part, with support from Chief Justice Richard Wagner and Justice Sheilah Martin.
In laying out the arguments for allowing the case to continue, Justice Moreau stated, “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.”
With regards to the idea of parliamentary privilege and statutory immunity, Moreau noted that since “the claim does not challenge the composition of the Legislative Assembly, it does not engage the privilege on which Resler relies.” Additionally, she writes that the Election Act “leaves the door open” to civil claims against acts performed in bad faith.
In part, she explained it this way:
“The textual analysis maxim of implied exclusion, expressio unius est exclusio alterius, is a form of reasoning that enables a court to discern legislative intent based on the notion that expressing one thing implies the exclusion of another (R. Sullivan, The Construction of Statutes (7th ed. 2022), at p. 247). I find that the explicit reference to ‘good faith’ necessarily implies that ‘bad faith’ is excluded from the immunity clause.”
In addition, she adds that “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,” and they only offer one means of address, declaring the election void, which would mean that granting a chief electoral officer immunity would be pointless. Additionally, by permitting candidates to launch civil claims against election officers, “it strengthens the accountability of public officers and provides relief for victims of tortious conduct.”
Moreau also specifically calls out and backs up the stance of one of the case’s interveners, the chief electoral officer of Quebec, who “recognized that, in principle, an election officer is not prevented from being pursued in civil proceedings for bad faith or gross negligence if it caused real prejudice to the claimant.”
In contemplating the concepts of bad faith and immunity, Moreau, however, made it quite clear that striking or not striking a case had nothing to do with the accusations levelled by and against the parties involved.
“An application to strike is not an assessment of the merits of the claim, and if the claim is properly pleaded it should not be struck even if it appears to be “dubious” (Elder Advocates, at para. 95, quoting Elder Advocates of Alberta Society v. Alberta, 2008 ABQB 490, 453 A.R. 1, at para. 443).”
One of Anglin’s claims against Resler involved torts of misfeasance in public office, and Moreau took a deep dive into the history of those torts. Writing about misfeasance, she outlined its origins and developments in law from its first use in England in 1703 in Ashby v. White and remarked that “these early English decisions illustrate that the electoral context is not incompatible with the tort of misfeasance in public office. Indeed, it appears that the tort originated precisely from this type of claim.”
Of course, she noted that this type of tort is not without its limitations and drew a line back to her previous conclusions about the possibility that officials might act in bad faith.
“The tort is not a free-for-all that allows anyone to bring civil claims seeking damages against public officers, as its specific features are designed to protect them from being sued for errors made in good faith. A complainant must establish both bad faith and material damage to succeed. Otherwise, they will be limited to administrative remedies.”
Another legal position put forward by Anglin alleged that Resler engaged in trespass to chattels, namely the election signs. Anglin claims that his signs were damaged or removed even after he had complied with Resler’s guidelines to alter them. He also claims that Resler didn’t undertake this action alone, that he ordered others to do so, all in an effort to give Anglin’s opponents an advantage. Moreau explained that this should be considered as part of the misfeasance claim.
In considering Anglin’s claims for loss of chance and the financial compensation he seeks, Moreau left the conclusions in the matter to the Alberta court.
“A further question arises as to whether the lost chance to earn the income of an MLA would be an appropriate measure of damages for a misfeasance claim in the electoral context,” she wrote. “As I have concluded that Anglin may proceed with his claim, I would defer to the judge hearing the case on its merits to address the appropriate measure of damages fully should he successfully establish his claim, including whether damages for a loss of chance claim are sustainable in fact and in law.”
She concluded that Anglin may proceed with his “civil claim against Resler with the exception of the malicious prosecution claim that was struck and that was not the subject of a cross-appeal” and dismissed the appeal with costs.
The dissent in part from Justice Karakatsanis primarily involved the loss of chance damages that Anglin is seeking, and she argued that “The claim for damages ‘for the loss of a chance of being re-elected’ must be struck.”
Specifically, she addressed the $400,000 salary that is paid to MLAs over the course of their full term in office. “Strong doctrinal and policy reasons weigh against allowing individuals to claim damages of this nature. Loss and chance damages are only available when a plaintiff can prove their lost chance is real and significant, rising above mere speculation. Because election forecasts hinge on imperfect polls and shifting public sentiment, any judgment on a causal link between wrongdoing and a candidate’s lost prospects is so uncertain as to be overly speculative.”
Karakatsanis continued to argue that, by implying a failed candidate should have won, a court making that decision would cast doubt on the legitimacy of the person currently serving as the elected politician. That doubt would carry over to every decision they were involved in and, by extension, the legitimacy of the parliamentary body as a whole.
As a result, her preference was for Anglin’s case to proceed on the merits, minus the possibility of recovery for loss of chance damages.
In responding to Karakatsanis, Rowe said he disagrees with her on the issue of loss of chance claims and feels they are outside of the purview of the Supreme Court of Canada, as “the courts below did not address them, and the relevant record is lacking. Moreover, a categorical holding in this appeal may have significant consequences, both for litigation arising from elections and for loss of chance in tort law more broadly.”
Rowe and Karakatsanis debated several issues, including the limitations of courts to rule on matters not raised by the parties, the unpredictability of political polling, the ability of courts to render judgments in matters involving elections, judges’ roles in public policy, legislative independence and oversight, and causation (especially when considered in light of compensation and damages).
Lawyers’ analysis of the case
There were four interveners in the case. The chief electoral officer of Quebec, the chief electoral officer of the Northwest Territories, the attorney general of British Columbia and the attorney general of Ontario. Borden Ladner Gervais LLP served as an agent to the Ontario attorney general. While Teagan Markin, partner and co-chair of BLG’s appellate & public advocacy groups, wasn’t directly involved in the case, she does say the decision touches on some interesting points, including the intersection of public and private law where public actors are allowed to be held accountable for acts of bad faith that cause intentional harm.
She adds that the intentional nature of misfeasance distinguishes it from the ordinary exercise of public powers, where other remedies can be applied in cases of unreasonableness.
“In this context, you get out of that and into the tort law of wrongs done against an individual. It’s a very high bar to prove misfeasance in public office, and the court does say at paragraph 87 that it’s not a free-for-all… but that doctrine is really the crux of this case, and that’s what takes it out of the context of collateral attack, abuse of process, parliamentary privilege, even the statutory immunities clause.”
Markin is quick to point out that, despite the contemplation of misfeasance, this judgment doesn’t rule on that. Instead, it’s fundamentally a motion to strike case. The other notable aspect of the decision concerns the loss-of-chance damages, which “kicks the can” back down to the lower courts.
As for the two parties in the case itself, Resler has no comment, but Donald Bur, general counsel at the Constitutional Law Institute of Canada and the lawyer who represented Anglin, says they got more than they expected from the court and rather than just focusing on narrow issues, the judges took a broader stance.
“The Supreme Court decided the issue about whether we had a proper cause of action, whether or not there was any sort of abuse of process in bringing this action… which are going to be helpful for us to eventually move the case along, in the sense that Mr. Resler and his counsel can’t bring further applications to strike arguing that it’s abusive process, so all of that is good.”
Editor's Note: This story was updated at 11:22 am EST on June 22. The article was amended to remove a reference to the exact number of signs Anglin was ordered to remove.
