SUPREME COURT OF CANADA

Citation: Resler v. Anglin, 2026 SCC 23

Appeal Heard: October 14, 2025
Judgment Rendered: June 19, 2026
Docket: 41298

Between:

Glen L. Resler,

in his capacity as Chief Electoral Officer

Appellant

and

Joseph V. Anglin

Respondent

• and -

Attorney General of Ontario,

Attorney General of British Columbia,

Chief Electoral Officer of Quebec and

Chief Electoral Officer of the Northwest Territories

Interveners

Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

Reasons for Judgment:

(paras. 1 to 101)

Moreau J. (Kasirer, Jamal and O’Bonsawin JJ. concurring)

Concurring Reasons:

(paras. 102 to 145)

Rowe J. (Côté J. concurring)

Reasons Dissenting in Part:

(paras. 146 to 192)

Karakatsanis J. (Wagner C.J. and Martin J. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

Glen L. Resler, in his capacity as Chief Electoral Officer Appellant

v.

Joseph V. Anglin Respondent

and

Attorney General of Ontario,

Attorney General of British Columbia,

Chief Electoral Officer of Quebec and

Chief Electoral Officer of the Northwest Territories Interveners

Indexed as: Resler v. Anglin

2026 SCC 23

File No.: 41298.

2025: October 14; 2026: June 19.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.

on appeal from the court of appeal of alberta

Civil procedure — Pleadings — Motion to strike — Controverted elections — Collateral attack — Abuse of process — Parliamentary privilege — Immunity — Reasonable cause of action — Former candidate in provincial election bringing action against chief electoral officer alleging interference in election campaign — Chief electoral officer bringing motion to strike action — Whether any barriers prevent claim from proceeding — If not, whether claim discloses reasonable cause of action — Election Act, R.S.A. 2000, c. E-1, s. 5.1(1).

A was a Member of the Legislative Assembly of Alberta from 2012 to 2015, when he was unsuccessful in his re-election bid. He claimed that during the 2015 provincial election campaign, R, the Chief Electoral Officer (“CEO”) of Alberta, engaged in conduct that affected the outcome of the election. After pursuing relief by way of judicial review, he commenced a civil action against R. The civil claim accepted the election result, but maintained that R exercised public powers for an improper or ulterior motive, knowing that doing so was likely to cause harm, and caused various losses and damages, including the loss of chance of being re-elected.

R filed a motion to strike the statement of claim on the grounds that it is frivolous, irrelevant or improper. In the alternative, he alleged that the statement of claim disclosed no reasonable claim, constituted an abuse of process, had no merit, and was contrary to the public interest. In support of the motion, R submitted that the allegations in the statement of claim would require the court to inquire into the validity of an election outside the controverted elections provisions of Alberta’s Election Act, which allow a defeated candidate to file a petition to void the election result by reason of the “undue return or undue election” of another candidate, within 30 days of the publication of the notice respecting the outcome of the election, and that the claim has no reasonable prospect of success because the CEO is immune from liability for the actions alleged. The chambers judge struck A’s claim in its entirety as an abuse of process. The Court of Appeal allowed his appeal in part. It reinstated the claim with the exception of the allegations of malicious prosecution, which it held were properly struck.

Held (Wagner C.J. and Karakatsanis and Martin JJ. dissenting in part): The appeal should be dismissed.

Per Kasirer, Jamal, O’Bonsawin and Moreau JJ.: A may proceed with his civil claim against R. No barriers prevent the claim from proceeding as the allegations and facts pleaded in the statement of claim disclose a reasonable cause of action.

The doctrines of collateral attack, abuse of process, parliamentary privilege and immunity are at issue. The purpose of the collateral attack doctrine is to bar a second proceeding when a party, bound by an order, seeks to avoid compliance with that order by challenging the order itself and its enforceability indirectly in a separate forum. The doctrine focuses on whether the proceeding in the other forum is the appropriate proceeding to challenge a decision. It is often invoked when a second proceeding involves a challenge to an administrative order that was not previously challenged through the administrative appeal process.

Abuse of process is a flexible principle that engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. Its reach is much broader than the collateral attack doctrine. Canadian courts have relied on their inherent power to prevent abuse of process primarily to bar relitigation in circumstances where the strict specific requirements of issue estoppel or cause of action estoppel are not satisfied, yet allowing the claim to proceed would still offend principles of judicial economy, consistency, and finality.

The Legislative Assembly has the right to provide for its proper constitution including the right to determine whether members are qualified to sit and vote and, inherently, to rule on questions affecting its membership. The Legislature assigned the jurisdiction to determine controverted elections to the Court of King’s Bench through the Election Act. The controverted elections procedures serve an important but relatively narrow function: to provide for the adjudication of a controverted election in which a petitioner seeks to void an election by reason of the undue return or undue election of a candidate.

Section 5.1(1) of the Election Act extends immunity from any proceedings to the CEO for anything done or omitted to be done “in good faith”, leaving a door open to civil proceedings where bad faith is alleged. The Legislature could have provided for full and absolute immunity, but chose not to. It can therefore be inferred from the text of s. 5.1(1) that the immunity it offers does not apply to acts or omissions performed in bad faith in the exercise or performance of the CEO’s duty or function under the Election Act and the other statutes mentioned in the provision. A contextual and purposive analysis also supports the conclusion that the Election Act does not bar civil claims for acts performed in bad faith.

The tort of misfeasance in public office can be established when a public official’s deliberate and unlawful actions, carried out with the knowledge that the conduct was unlawful and likely to cause harm, cause compensable damage to the complainant. It occupies a unique position at the intersection of tort law and administrative law: actions taken in the administrative context become tortious when the use of public power serves a purpose outside the proper scope of public law, such as injuring the plaintiff. However, the tort is not a free-for-all that allows anyone to bring civil claims seeking damages against public officers. To protect against suits 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.

A’s claim does not constitute a collateral attack on the 2015 election result or an abuse of process, and A has made out an arguable case for the non-application of parliamentary privilege and statutory immunity. First, the claim is not a collateral attack on the 2015 election and does not amount to an abuse of process. A is seeking monetary compensation for R’s actions, claiming that R exercised public powers for improper or ulterior motives, knowing that doing so would be likely to cause A harm. He is not seeking any remedy relating to the election result itself. A’s claim therefore does not seek to challenge the fairness or outcome of the election and does not impermissibly circumvent the controverted elections process. The judicial review proceedings also do not foreclose A’s civil claim as those proceedings addressed the CEO guidelines relating to signage whereas the civil claim alleges bad faith conduct on R’s part. Second, the alleged conduct is not protected by Parliamentary privilege. The submission that the CEO is protected from a civil claim for damages as a matter of parliamentary privilege mistakenly relies on the assumption that A is challenging the legality of the election result. However, the claim does not challenge the composition of the Legislative Assembly and does not engage the privilege on which R relies. R, who relies on a broadly framed privilege, fails to explain how it extends to acts alleged by A. Third, the Election Act does not preclude civil claims for acts performed in bad faith. Based on the text, context and purpose of s. 5.1(1), A is entitled to claim a personal remedy based on his allegations of bad faith and tortious conduct, the usual remedy for which is damages.

Since the claim is not barred, it must be determined whether the claim discloses a reasonable cause of action or whether it should instead be struck at this preliminary stage. Accepting the pleaded facts as true, A has sufficiently pleaded the torts of misfeasance in public office and trespass to chattel. First, the allegations of misfeasance in public office are sufficient and should remain. A’s claim contains allegations relating to R’s position and duties as a public officer, indicating malicious intent, as well as material damages caused by his conduct. Second, as regards R, the trespass to chattel claim may be subsumed in and succeed as a particular of the misfeasance in public office claim and should be maintained. With respect to the availability of loss of chance damages, that issue is better left to be determined by the judge hearing the case on its merits, particularly given that loss of chance in tort law remains unsettled in Canadian jurisprudence and raises significant unresolved questions of causation.

Per Côté and Rowe JJ.: There is full agreement with the majority. There is disagreement with the approach of Karakatsanis J., which would strike the portion of the claim seeking loss of chance damages on the basis of issues that were neither litigated on this appeal nor addressed by the courts below, and would introduce a free-standing judicial power to reject claims on the basis of public policy.

It is a fundamental principle that courts should generally adjudicate matters as framed by the parties. The principle of party presentation provides that it is the parties who control their case and frame the issues for decision, and the corresponding duty on all courts is to respect those strategic choices. Addressing the issues as the parties frame them enhances courts’ ability both to remain independent and impartial and to be seen as independent and impartial. It also ensures procedural fairness, which is an especially serious concern where a matter would be decided on a basis which the parties have not been provided an opportunity to consider and provide argument. The incremental and adjudicative nature of the common law, and the related institutional limitations of the courts, reinforces these concerns. The common law develops incrementally and in concrete disputes between litigants, rather than by abstract policy debates.

The issues of causation in loss of chance claims or what constitutes too speculative a chance should not, therefore, be addressed on the underlying motion to strike since no party made submissions on those issues, the courts below did not address them, and the relevant record is lacking. The parties made no submissions on the causal link between R’s allegedly tortious conduct and A’s election loss or on A’s likelihood of electoral success. The parties addressed loss of chance damages only as a matter of abuse of process and collateral attack, as did the courts below. These issues may not be decided simply because the parties advanced other arguments about loss of chance damages or because loss of chance is listed as a head of damage in the claim. Moreover, a categorical holding that loss of chance damages are unavailable in electoral contexts may have significant consequences, both for litigation arising from elections and for loss of chance in tort law more broadly, an area that remains contested and evolving. Courts should be particularly wary of initiating developments of tort law whose ramifications are uncertain or for which a consensus remains elusive.

Karakatsanis J.’s reasoning demonstrates why these issues should await a case in which they are squarely raised, fully argued, and supported by an adequate record. First, as the loss of chance doctrine is contemplated as a means of providing tortious liability for uncertain loss, uncertainty in an election context may support considering the doctrine’s applicability rather than categorically foreclosing it. Second, the record does not provide a basis to conclude that electoral outcomes are invariably too unpredictable or speculative to permit judicial assessment of loss of chance claims. Third, there are no factual findings regarding whether the polls during A’s campaign were unpredictable, how the candidates polled over the course of the campaign, or whether the alleged tortious conduct corresponded with any measurable change in A’s polling or electoral prospects. Fourth, the underlying motion to strike is an ill-suited procedural vehicle for resolving these issues. A motion to strike is a tool that must be used with care, particularly given that the availability of loss of chance damages in torts generally remains an unsettled question.

Further, Karakatsanis J.’s reliance on free-standing public policy grounds to strike the claim raises significant concerns. The introduction of a free-standing judicial power to reject claims on the basis of public policy risks uncertainty for litigants and instability in the development of the law, and has previously been rejected by the Court. Moreover, resort to such a power here duplicates the consideration of concerns already addressed through established doctrines — abuse of process, collateral attack, and implied statutory exclusion — while bypassing the structural and analytical discipline those doctrines impose.

Karakatsanis J.’s proposed public policy grounds are also difficult to reconcile with the Legislature’s own policy choice to permit private claims against a chief electoral officer where they allege bad faith. Where the Legislature has deliberately preserved liability for bad faith conduct, it is the alleged misconduct and not the existence of a civil claim that gives rise to any resulting public concern. A holding that judicial consideration of public policy warrants excluding an additional type of claim would have the effect of expanding the CEO’s statutory immunity. Yet, the Court’s role in this regard is to give effect to legislative intent, not to substitute a policy preference as to what is thought to be necessary to preserve public confidence in the electoral system.

Per Wagner C.J. and Karakatsanis and Martin JJ. (dissenting in part): The appeal should be allowed in part. There is agreement with the majority that the claims for misfeasance in public office and trespass to chattels may continue on the merits. However, loss of chance damages are unavailable for the loss of an election, and therefore the loss of chance damages claim should be struck.

The availability of loss of chance damages is properly before the Court. Both parties litigated this specific issue as part of the motion to strike and the Court was specifically asked to strike the claim for loss of chance damages. But the loss of chance damages claim is doomed to fail for doctrinal and policy reasons.

Loss of chance damages provide compensation when the fact‑finder knows that a defendant’s wrongful conduct may have affected the outcome, but cannot make causation findings on the balance of probabilities. Where the loss of chance is a pure question of probability, the difficulties relating to causation and valuation may justify a judge’s decision to refuse these damages in certain cases. For torts where harm is not purely economic, the availability of loss of chance damages remains the subject of considerable controversy, much of it surrounding the uncertainty of establishing causation.

To recover damages for loss of chance in tort law, a plaintiff must prove that, but for the defendant’s tortious conduct, the plaintiff would have had a chance to obtain a benefit or avoid a loss; the lost chance was real and significant, and not merely speculative; the chance depended on someone or something other than the plaintiff’s own conduct; and the lost chance had practical value. When these four criteria are met, a judge may exercise their discretion to award damages equal to the probability of securing the lost benefit or avoiding the loss multiplied by the value of the lost benefit or the loss sustained.

Doctrinal and policy reasons weigh overwhelmingly against awarding damages of this nature in electoral contexts. Doctrinally, there are causation-related challenges that make calculating one’s chance of winning an election difficult — if not impossible — to determine and the calculation of a plaintiff’s loss of chance to win an election is full of uncertainty. In such a claim, opinion polls and past results become the primary indicators of someone’s chance of winning an election, but polls are unpredictable, dynamic, and constantly changing. A judge will also face difficulties in establishing a “but for” link between a defendant’s conduct and voting results, making it impossible to determine how voters would have voted with enough certainty for a court to make necessary factual findings.

Even if the causation challenges could be overcome, there are public policy reasons not to allow loss of chance damages in an electoral context. Public policy plays a narrow but important role in Canadian tort damages law. What matters on a principled basis is whether public policy concerns are sufficiently strong to outweigh a successful plaintiff’s claim to damages. A judge’s assessment of loss of chance in electoral contexts prompts an inquiry into the probability that a particular candidate would have won an election, but for the defendant’s tortious conduct. Such an inquiry risks impugning the integrity of election results, outside the statutory scheme the Legislature has adopted for contesting election results. It also risks undermining public confidence in key democratic institutions.

Assessing loss of chance here would require a trial judge to adjudicate whether the result of an election was compromised by misconduct, the same question that the controverted election regime exists to answer. More broadly, a loss of electoral chance inquiry risks undermining the validity of the election in the eyes of the public, as well as the legitimacy of the winners to represent their constituencies.

Cases Cited

By Moreau J.

Applied: Hopkins v. Kay, 2015 ONCA 112, 124 O.R. (3d) 481; considered: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126, rev’d (1703), 1 Bro. P.C. 62, 1 E.R. 417; Turner v. Sterling (1671), 2 Ventris 25, 86 E.R. 287; Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121; referred to: Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4; Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, [2022] 3 S.C.R. 515; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125; 864503 Alberta Inc. v. Genco Place Properties Ltd., 2019 ABCA 80, 85 Alta. L.R. (6th) 72; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687; Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295; Tuharsky v. O’Chiese First Nation, 2025 ABCA 267, 88 Alta. L.R. (7th) 87; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Wilson v. The Queen, 1983 35 (SCC), [1983] 2 S.C.R. 594; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629; Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481; Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [1996] 2 S.C.R. 876; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; R. v. Wolfe, 2024 SCC 34; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261; Elder Advocates of Alberta Society v. Alberta, 2008 ABQB 490, 453 A.R. 1; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; Ontario (Attorney General) v. Clark, 2021 SCC 18, [2021] 1 S.C.R. 607; Three Rivers DC v. Bank of England (No. 3), [2001] UKHL 16, [2003] 2 A.C. 1; Watkins v. Home Secretary, [2006] UKHL 17, [2006] 2 A.C. 395; Welbridge Holdings Ltd. v. Greater Winnipeg, 1970 1 (SCC), [1971] S.C.R. 957; R. in right of Canada v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205; Chaplin v. Hicks, [1911] 2 K.B. 786; Folland v. Reardon (2005), 2005 1403 (ON CA), 74 O.R. (3d) 688; Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544, 41 C.C.L.T. (4th) 177; Laferrière v. Lawson, 1991 87 (SCC), [1991] 1 S.C.R. 541; Barnardiston v. Soame (1674), 6 How. St. Tr. 1063; Patrick Street Holdings Ltd. v. 11368 NL Inc., 2026 SCC 15.

By Rowe J.

Considered: Hall v. Hebert, 1993 141 (SCC), [1993] 2 S.C.R. 159; British Columbia v. Zastowny, 2008 SCC 4, [2008] 1 S.C.R. 27; Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229; British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38, [2004] 2 S.C.R. 74; referred to: R. v. McGregor, 2023 SCC 4, [2023] 1 S.C.R. 198; R. v. Bouvette, 2025 SCC 18; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6; Piekut v. Canada (National Revenue), 2025 SCC 13; TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144; R. v. I.M., 2025 SCC 23; Ahluwalia v. Ahluwalia, 2026 SCC 16; Friedmann Equity Developments Inc. v. Final Note Ltd., 2000 SCC 34, [2000] 1 S.C.R. 842; Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497; Bost v. Illinois State Bd. of Elections, 607 U.S. 1 (2026); R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959; Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544, 41 C.C.L.T. (4th) 177; ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674; Arnold v. Teno, 1978 2 (SCC), [1978] 2 S.C.R. 287; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Hopkins v. Kay, 2015 ONCA 112, 124 O.R. (3d) 481; Pleau (Litigation Guardian of) v. Canada (Attorney General), 1999 NSCA 159, 182 D.L.R. (4th) 373; Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295.

By Karakatsanis J. (dissenting in part)

R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; Uber Technologies Inc. v. Heller, 2020 SCC 16, [2020] 2 S.C.R. 118; Laferrière v. Lawson, 1991 87 (SCC), [1991] 1 S.C.R. 541; Webb & Knapp (Canada) Limited v. City of Edmonton, 1970 173 (SCC), [1970] S.C.R. 588; Kinkel v. Hyman, 1939 7 (SCC), [1939] S.C.R. 364; Chaplin v. Hicks, [1911] 2 K.B. 786; Kitchen v. Royal Air Forces Association, [1958] 2 All E.R. 241; Allied Maples Group Ltd. v. Simmons & Simmons, [1995] 4 All E.R. 907; Folland v. Reardon (2005), 2005 1403 (ON CA), 74 O.R. (3d) 688; Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544, 41 C.C.L.T. (4th) 177; Spring v. Guardian Assurance Plc., [1995] 2 A.C. 296; Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458; 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, [2020] 3 S.C.R. 504; Gregg v. Scott, [2005] UKHL 2, [2005] 2 A.C. 176; Peppler Estate v. Lee, 2020 ABCA 282, 11 Alta. L.R. (7th) 215; Henderson v. Hagblom, 2003 SKCA 40, 232 Sask. R. 81; Michaud v. PMM Assurance & Services Inc., 2005 NBCA 66, 289 N.B.R. (2d) 310; De Cotiis v. McLellan, 2009 BCCA 596, 279 B.C.A.C. 176; Berry v. Pulley, 2015 ONCA 449, 335 O.A.C. 176; 644036 Alberta Ltd. v. Kay McVey Smith & Carlstrom LLP, 2018 ABCA 236, 71 Alta. L.R. (6th) 106; Wong v. 407527 Ontario Ltd. (1999), 1999 3788 (ON CA), 179 D.L.R. (4th) 38; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Operation Dismantle v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441; Bost v. Illinois State Bd. of Elections, 607 U.S. 1 (2026); British Columbia v. Zastowny, 2008 SCC 4, [2008] 1 S.C.R. 27; Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229; ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674; British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38, [2004] 2 S.C.R. 74; Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612; Hall v. Hebert, 1993 141 (SCC), [1993] 2 S.C.R. 159; Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76; Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181.

Statutes and Regulations Cited

Alberta Rules of Court, Alta. Reg. 124/2010, r. 3.68.

Election Act, R.S.A. 2000, c. E-1, ss. 4.4 [rep. 2017, c. 29, s. 8], 5.1(1), 19.1, 151(2), 185(1), 185(2)(b), 186(2), 188(1), 190, 191(1)(a), 193, 195(1).

Federal Courts Act, R.S.C. 1985, c. F-7, ss. 17, 18.

Legislative Assembly Act, R.S.A. 2000, c. L-9, s. 9(1).

Authors Cited

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Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 25th ed. by David Natzler and Mark Hutton, eds. London: LexisNexis, 2019.

Fieldhouse, Edward, et al. Electoral Shocks: The Volatile Voter in a Turbulent World. Oxford: Oxford University Press, 2020.

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APPEAL from a judgment of the Alberta Court of Appeal (Slatter, Wakeling and Woolley JJ.A.), 2024 ABCA 113, 69 Alta. L.R. (7th) 171, [2024] A.J. No. 372 (Lexis), 2024 CarswellAlta 756 (WL), reversing in part a decision of Lema J., 2022 ABQB 477, 46 Alta. L.R. (7th) 263, [2022] A.J. No. 868 (Lexis), 2022 CarswellAlta 1760 (WL). Appeal dismissed, Wagner C.J. and Karakatsanis and Martin JJ. dissenting in part.

M. Joseph Redman and Kathleen Elhatton-Lake, for the appellant.

C. Vincent Kurata and Donald F. Bur, for the respondent.

Susan Keenan and Andrea Huckins, for the intervener Attorney General of Ontario.

David Brownell, for the intervener Attorney General of British Columbia.

Olivier Cournoyer Boutin and Alexandra Lepage, for the intervener Chief Electoral Officer of Quebec.

Alyssa Holland and Emma Williams, for the intervener Chief Electoral Officer of the Northwest Territories.

The judgment of Kasirer, Jamal, O’Bonsawin et Moreau JJ. was delivered by

Moreau J. —

I. Overview

1Can an unsuccessful election candidate bring a civil claim against an elections officer for the tort of misfeasance in public office? The respondent, Joseph Anglin, was a Member of the Legislative Assembly (“MLA”) of Alberta from 2012 to 2015, when he was unsuccessful in his re-election bid. He commenced a civil claim against the appellant Chief Electoral Officer (“CEO”) of Alberta, Glen Resler. Resler applied to strike the claim.

2Resler argues that Anglin’s claim constitutes a collateral attack on the 2015 election and an abuse of process, and that his actions were protected by parliamentary privilege or statutory immunity. Anglin states that his civil claim is not a collateral attack on the election or an abuse of process as he accepts the election result. However, he maintains that Resler interfered in the election, and caused him various losses and damages, including the loss of chance of being re-elected, and that neither parliamentary privilege nor statutory immunity protects him in the circumstances.

3The chambers judge struck Anglin’s claim in its entirety, having found that it was an abuse of process. The majority of the Court of Appeal allowed his appeal in part, having determined that the claim was not an abuse of process, and reinstated it with the exception of the allegations of malicious prosecution asserting that Resler investigated and prosecuted Anglin without any factual or legal basis, which it held were properly struck. The concurring judge on appeal would have maintained the malicious prosecution claim, save for one allegation that he deemed bound to fail.

4For the reasons below, 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.

II. Facts

5During the 2015 provincial election campaign, Anglin was the subject of complaints regarding his election signs. Following an investigation, Resler caused at least 25 of Anglin’s signs to be removed on the basis that they improperly identified him as the “MLA” when that status no longer applied to him after the election had been called, and that the required sponsorship information was smaller than the prescribed size. While Resler did not initiate a prosecution for the use by Anglin of the letters “MLA” on his signs, he imposed an administrative penalty of $250 for breaching the sponsorship information guidelines. Anglin sought judicial review of Resler’s decision. On judicial review, it was found that there was nothing done by Resler which could be said to have been unreasonable in applying the guidelines and the application was dismissed. His subsequent appeal and his application for leave to appeal to this Court were both dismissed (2017 ABQB 595; 2018 ABCA 296, leave to appeal refused, [2019] 2 SCR vi). The Court of Appeal found that the Election Act, R.S.A. 2000, c. E-1, compels compliance with the guidelines established by the CEO with respect to advertisements and that the guidelines were therefore within Resler’s delegated authority as was his power to impose an administrative penalty.

6Resler also appointed an investigator after a member of the public found a list of electors that could be linked to Anglin. Based on the investigator’s report, Resler imposed an administrative penalty of $500 for failing to take reasonable steps to protect the electors list. Anglin’s application for judicial review was dismissed on the grounds that Resler had not made any palpable or overriding errors of fact, that Resler had not violated the provisions of s. 19.1 of the Election Act relating to the protection of the list of electors, and that there was no actual or reasonable apprehension of bias on the part of Resler against Anglin. However, it was found that Anglin had not been treated fairly because Resler had not provided him with a copy of the investigator’s report (2020 ABQB 131). While the electors list issue was initially returned to Resler for reconsideration, the administrative penalty was ultimately rescinded (2021 ABQB 353). In a subsequent application by Anglin seeking costs against Resler in the proceedings related to the electors list, the decision clarified that the procedural unfairness did not amount to capriciousness or malfeasance on the part of Resler that would justify a departure from the general costs rule (2021 ABQB 623). She ordered the parties to bear their own costs.

7In April 2017, Anglin commenced this civil action against Resler. He alleged that the requirement to remove “MLA” from his election signs and to increase the size of the sponsorship information on the signs had no legal basis. He also alleged that Resler had wrongfully informed the media that his signs were illegal and had collaborated with his opponents to remove or damage the rest of his signs. He claimed that Resler had specifically targeted his signs, which were compliant, whereas the signs of other candidates did not meet the requirements of the Election Act.

8Anglin also took issue with the investigations conducted and prosecutions commenced against him after the election, along with the sanctions imposed on him, which he alleged were “without reasonable and probable cause” (amended statement of claim, filed June 22, 2022 (reproduced in A.R., vol. II, at pp. 10-15), at paras. 11-15). Anglin alleged that Resler and others had undertaken these actions with “the intention . . . to create an unfair advantage for Anglin’s opponents and to deny him a fair election and his chance of re-election”, that “Resler [had] exercised public powers for an improper or ulterior motive, knowing that it was likely to cause harm to Anglin and his chances of being re-elected”, and that “the actions of Resler . . . had a negative impact on Anglin’s re-election chances and he was not re-elected” (para. 7-8 and 10).

9The prayer for relief claimed $400,000.00 for the loss of a chance of being re-elected due to the wrongful interference with the election, $400,000.00 for loss of future employment, and $400,000.00 for harm to his reputation, his self-esteem, his emotional well-being and his future employment opportunities, as well as punitive damages (amended statement of claim, at the first paragraph numbered 16 and para. 20).

10Resler filed a motion to strike Anglin’s statement of claim on the grounds that it is frivolous, irrelevant or improper. In the alternative, he alleged that the statement of claim disclosed no reasonable claim, constituted an abuse of process, had no merit, and was contrary to the public interest. In support of the motion, Resler submitted that the allegations would require the court to inquire into the validity of an election, which can only be done under the controverted elections provisions of the Election Act, and that the claim has no reasonable prospect of success because the CEO is immune from liability for the actions alleged.

11Resler alternatively applied for summary judgment dismissing Anglin’s claim on the grounds of lack of merit.

III. Decisions Below

A. Court of Queen’s Bench of Alberta, 2022 ABQB 477, 46 Alta. L.R. (7th) 263 (Lema J.)

12Lema J., the chambers judge, struck Anglin’s amended statement of claim in its entirety, finding that it amounted to an abuse of process, disclosed no reasonable cause of action and, in any case, the allegations had no reasonable chance of success given Resler’s common law and statutory immunities. Given these conclusions, he did not deal with the application for summary judgment.

13Lema J. found that Anglin’s claim constituted an abuse of process for two reasons. First, it called upon the court to inquire into the validity of the election, Anglin having pled that, but for Resler’s actions, he would have won the election. Anglin’s claim for damages therefore required an investigation into the alleged unfairness of the election process. Lema J. concluded that Anglin was seeking to bypass the controverted elections provisions of the Election Act, which provide a specific statutory mechanism for challenging the validity of elections. This mechanism is broad enough to encompass any type of wrongdoing that could result in an invalid election, including the conduct of election officials. In addition, legislatures have inherent exclusive jurisdiction to deal with electoral matters. Consequently, courts do not have jurisdiction to question the outcome of an election outside the specific jurisdiction granted to them by legislatures under the Election Act.

14Lema J. distinguished the present case from Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, relied on by Anglin. He found that the remedy sought in TeleZone, namely, damages for wrongful denial of a licence, did not contradict the administrative decision to award licences to other applicants. In this case, however, there could be only one winner. It was contradictory for the defeated candidate to say that he did not challenge the election result, yet claim damages for unfairness that caused his loss. This amounted to claiming that he was the true winner. Accordingly, TeleZone did not apply.

15Lema J. also concluded that Anglin’s claim sought to re-litigate the administrative proceedings relating to his election signs and the handling of the electors’ list. Anglin mischaracterized these proceedings as malicious prosecution, abuse of public office and abuse of process. With regard to the allegation that Anglin’s signs featured “MLA”, Resler investigated the matter but took no further action. Regarding the allegation that the sponsorship information was too small, the matter was settled when Anglin’s challenge to the administrative penalty was unsuccessful. As to the allegation that he did not take reasonable care of the electors’ list, Anglin did not appeal the decision concerning the electors list.

16Lema J. stated that, in any case, Anglin had not pleaded sufficient facts to demonstrate bad faith, such as to cause Resler to lose his common law and statutory immunity. He added that, even if Anglin had done so, Resler’s bad faith would still have to be raised through the controverted elections process, since his claim speaks to the fairness of the election.

17Finally, for the same reasons that he considered Anglin’s claim to be an attempt to re-litigate the administrative proceedings, Lema J. found that it did not disclose a reasonable cause of action.

B. Court of Appeal of Alberta, 2024 ABCA 113, 69 Alta. L.R. (7th) 171 (Slatter, Wakeling and Woolley JJ.A.)

(1) Majority Opinion (Slatter and Woolley JJ.A.)

18Slatter and Woolley JJ.A. noted that the facts as pleaded by Anglin appear to engage the causes of action of malicious prosecution, misfeasance in public office, and trespass to chattels (the election signs). They allowed the appeal in part and set aside the striking of the amended statement of claim but upheld Lema J.’s decision to strike the malicious prosecution allegation for the reasons addressed below. They agreed with Lema J. that some of the allegations lacked specificity and the particulars generally required for a claim of misfeasance in public office, but noted that Anglin could amend his pleadings once the issues were clarified.

19Contrary to Lema J.’s conclusion, the majority found that Anglin’s claim did not constitute a collateral attack on the election, as it assumed that the outcome of the election was unimpeachable. As in TeleZone, Anglin accepted the result as final and instead, sought compensation for alleged misconduct during the election process. Whether the issues should have been resolved through the controverted elections process was therefore irrelevant. However, the majority upheld Lema J.’s decision to strike out Anglin’s allegation of malicious prosecution. They disagreed that it should be struck on the basis that the administrative penalties did not amount to prosecutions that could support the tort. However, they found that it could be struck as an abuse of process by applying the doctrines of issue estoppel and res judicata because the matters had been settled and the issues had already been decided in the prior administrative proceedings. As a result, Anglin could not claim that Resler had initiated those proceedings without a factual or legal basis, and reframing them as an aspect of misfeasance in public office would constitute an abuse of process.

(2) Concurring Opinion (Wakeling J.A.)

20Wakeling J.A. agreed with the majority that Anglin’s civil claim was not a collateral attack on the election because it did not contest its validity. Rather, Anglin’s allegations could be fairly described as raising the tort of misfeasance in public office. He noted that the statutory immunity provided by s. 5.1(1) of the Election Act would not apply if Resler was found to have committed misfeasance in public office, as it only affords immunity to a public officer for actions performed in good faith.

21In Wakeling J.A.’s view, Anglin did not seek to re-litigate issues that had already been decided because the issues addressed in the prior administrative proceedings under the Election Act were distinct from those addressed in his amended statement of claim. Specifically, the administrative proceedings did not address whether Resler performed public acts that he knew were unlawful and with the intent to injure Anglin’s campaign, which is an essential element of the tort of misfeasance in public office. Neither of the judges hearing Anglin’s judicial review applications determined Resler’s state of mind when he performed the public acts. The allegation of malicious prosecution therefore constituted part of the alleged tortious actions in Anglin’s civil claim. Having established that the proceedings did not address the same issues, Wakeling J.A. concluded that Anglin’s claim was not captured by issue estoppel or cause of action estoppel. He also concluded that Anglin’s claim disclosed a reasonable cause of action, noting that the pleaded facts satisfied the essential elements of the torts of misfeasance in public office. Therefore, Wakeling J.A. would have allowed the allegation of malicious prosecution to proceed with the exception of the “size of sponsorship information” investigation and prosecution allegation at para. 11(ii) of the amended statement of claim (paras. 244-45).

IV. Issues

22The issues in this appeal are as follows:

1. Are there any barriers that could prevent Anglin’s claim from proceeding? In this case, questions arise as to whether the amended statement of claim constitutes a collateral attack on the 2015 election result, whether it is an abuse of process, whether Resler’s conduct is protected from civil claims by parliamentary privilege or statutory immunity and whether the Election Act precludes civil claims.

2. If not, do the allegations and facts pleaded in the amended statement of claim disclose a reasonable cause of action?

23It should be noted that Anglin is not cross-appealing the majority’s decision upholding the striking of the allegations of malicious prosecution (set out in paras. 6(ii), 11-15, and the second paragraph numbered 16 of his amended statement of claim). Accordingly, these reasons do not address the issue of malicious prosecution. A dismissal of the appeal would mean that Anglin’s claim could only proceed in relation to Resler’s alleged tortious actions concerning the removal or destruction of the signs, as well as his comments to the media regarding their non-conformity.

V. Standard of Review

24A decision to strike out a claim under r. 3.68 of the Alberta Rules of Court, Alta. Reg. 124/2010, is discretionary. It generally attracts deference and “may only be interfered with if there is a legal error (considered to be an error in principle), a palpable and overriding factual error (viewed as a material misapprehension of the evidence) or a failure to exercise discretion judicially (which includes acting arbitrarily or being ‘so clearly wrong as to amount to an injustice’)” (Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, at para. 32, quoting Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48, [2022] 3 S.C.R. 515, at para. 41). Therefore, if the court misdirected itself in identifying the basis for granting that remedy, the decision is reversible (Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27).

25The issues raised in this appeal are questions of law, namely, whether the civil claim amounts to a collateral attack or an abuse of process, the existence and scope of parliamentary privilege, the statutory interpretation of the Election Act to determine whether Resler’s conduct is protected by immunity or whether the statute impliedly excludes civil claims, and whether the amended statement of claim discloses a reasonable cause of action (Métis Nation, at para. 31; 864503 Alberta Inc. v. Genco Place Properties Ltd., 2019 ABCA 80, 85 Alta. L.R. (6th) 72, at para. 28; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687, at para. 17; Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at para. 57; Tuharsky v. O’Chiese First Nation, 2025 ABCA 267, 88 Alta. L.R. (7th) 87, at para. 17). Each of these questions therefore attract correctness review (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8).

VI. Analysis

A. There Are No Barriers Preventing the Respondent’s Claim From Proceeding

26The preliminary issue is whether any barrier prevents Anglin’s claim from proceeding. Resler submits that the claim is precluded because the Election Act’s controverted elections procedure is the exclusive means by which the fairness and outcome of an election may be challenged. He characterizes Anglin’s claim as a “thinly veiled” attempt to circumvent that procedure and, on that basis, argues that it constitutes a collateral attack on the 2015 election result and amounts to an abuse of process. He further submits that the CEO’s conduct is protected by parliamentary privilege or, in the alternative, by statutory immunity. In the section that follows, I reject these submissions and explain that Resler’s characterization of the claim is misplaced, that his conduct is not protected by parliamentary privilege, and that the Election Act does not bar civil claims arising from the type of bad-faith conduct Anglin alleges Resler performed.

(1) Anglin’s Claim Is Not a Collateral Attack on the 2015 Election

27Resler submits that Anglin’s civil claim constitutes a collateral attack on the 2015 election because it would inevitably require the court to examine the fairness and integrity of the election, which necessarily engages the election’s outcome (A.F., at paras. 56-57). The claim therefore seeks to circumvent the controverted elections process, which represents the only means of challenging an election. The controverted elections provisions of the Election Act allow a defeated candidate to file a petition to void the election result by reason of the “undue return or undue election” of another candidate, within 30 days of the publication of the notice respecting the outcome of the election (see ss. 185 et seq.).

28The purpose of the collateral attack doctrine is to bar “a second proceeding when a party, bound by an order, seeks to avoid compliance with that order by challenging the order itself and its enforceability, not directly but indirectly in a separate forum” (D. J. Lange, The Doctrine of Res Judicata in Canada (5th ed. 2021), at p. 11). The doctrine focuses on whether the proceeding in the other forum is the appropriate proceeding to challenge a decision. It is often invoked when a second proceeding involves a challenge to an administrative order that was not previously challenged through the administrative appeal process (p. 495).

29This Court’s first full consideration of the collateral attack doctrine in Wilson v. The Queen, 1983 35 (SCC), [1983] 2 S.C.R. 594, established a test for determining whether the doctrine applies to a proceeding, namely, whether the object of the proceeding is to reverse, vary or nullify an order or judgment made in a previous collateral proceeding that has not been varied or set aside on appeal.

30Following Wilson, lower courts began applying the doctrine to re-litigation issues, but this Court rejected this approach in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, and Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, finding that the collateral attack doctrine should be construed more narrowly and focus on challenges to the order itself and its enforceability.

31In Garland, the Court stated that, generally, the collateral attack doctrine “is invoked where the party is attempting to challenge the validity of a binding order in the wrong forum, in the sense that the validity of the order comes into question in separate proceedings when that party has not used the direct attack procedures that were open to it” (para. 71). In C.U.P.E., the Court rejected the application of the collateral attack doctrine, instead opting for the broader doctrine of abuse of process. In that case, a recreation centre instructor was convicted of sexually assaulting a child under his supervision and was subsequently dismissed from his employment. The instructor grieved his dismissal, denying that a sexual assault had ever taken place. Arbour J., writing for the majority of the Court, noted at para. 34:

. . . in the case at bar, the union does not seek to overturn the sexual abuse conviction itself, but simply contest, for the purposes of a different claim with different legal consequences, whether the conviction was correct. It is an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force, as clearly it does. Prohibited “collateral attacks” are abuses of the court’s process. However, in light of the focus of the collateral attack rule on attacking the order itself and its legal effect, I believe that the better approach here is to go directly to the doctrine of abuse of process. [Emphasis added.]

32A reconsideration of facts established in a collateral order or judgment does not itself dispute the enforceability of the underlying decision. Those two elements are distinct. Indeed, the collateral attack doctrine is primarily concerned with protecting the justice system rather than the interests of individual litigants (Lange, at pp. 501-2).

33More recently, the Court confirmed this narrower interpretation of the doctrine in TeleZone, which addressed whether superior courts can adjudicate civil claims for damages relating to administrative decisions that have not first been invalidated through judicial review. In that case, Industry Canada issued a call for applications for licences for personal communication services, accompanied by a policy statement that provided the criteria on which it would grant up to six licences. However, Industry Canada went on to grant four licences and TeleZone was not among the successful applicants. TeleZone commenced a civil claim seeking damages for breach of contract, negligence and unjust enrichment.

34TeleZone argued that a policy statement issued by Industry Canada indicated that it would only issue fewer than six licences if fewer than six applications met the criteria. The Attorney General of Canada challenged the civil claim on the basis that it constituted a collateral attack on Industry Canada’s decision. He maintained that the concurrent jurisdiction of the superior courts and the Federal Court for claims against the federal Crown under s. 17 of the Federal Courts Act, R.S.C. 1985, c. F-7, did not apply to claims that engage the validity and lawfulness of the decision. Such claims fall instead under the Federal Court’s exclusive jurisdiction under s. 18 of the Federal Courts Act.

35In TeleZone, the Court found, through a statutory interpretation exercise, that the Federal Courts Act did not impede a claim seeking relief from fault, in a private law sense. In a similar vein, there is no provision in the Election Act requiring Resler’s decisions in his role as CEO to be set aside before he can be sued. As noted in TeleZone, a provincial superior court should not generally decline to exercise jurisdiction on the basis that the claim “looks like a case that should be pursued on judicial review” (para. 76).

36In order to determine whether the claim constituted a collateral attack on Industry Canada’s decision to issue only four licences, the Court in TeleZone based its analysis on whether TeleZone sought to challenge the decision and avoid its consequences. Binnie J., writing for a unanimous Court, observed:

. . . if the claimant is content to let the order stand and instead seeks compensation for alleged losses [in TeleZone], there is no principled reason why it should be forced to detour to the Federal Court for the extra step of a judicial review application (itself sometimes a costly undertaking) when that is not the relief it seeks. Access to justice requires that the claimant be permitted to pursue its chosen remedy directly and, to the greatest extent possible, without procedural detours. [para. 19]

37This Court found that TeleZone did not seek to avoid the consequences of the licensing decision, as it based its claim for damages on the decision itself and resulting financial losses. Therefore, TeleZone could not have intended to challenge the decision, since its alleged impact was integral to its cause of action. The matter before us shares similar features, as detailed below.

38In the present case, Anglin is seeking monetary compensation for Resler’s actions, claiming that Resler exercised public powers for improper or ulterior motives, knowing that doing so would be likely to cause Anglin harm. Anglin is not seeking any remedy relating to the election result itself, such as a declaration voiding the election and invalidating the return of the winning candidate.

39Resler takes specific issue with the allegation that his actions negatively impacted Anglin’s chances of re-election and the corresponding head of damages for the loss of chance of re-election. Resler submits that this particular allegation undermines the integrity of the election result and impacts upon the values of certainty, fairness, promptness, finality, legitimacy and efficiency that underpin the electoral process (A.F., at para. 58). The intervener the CEO of the Northwest Territories notes that since the loss of chance analysis requires determining whether, absent the wrongful conduct, Anglin would have obtained the benefit or avoided the harm, “[i]t is difficult to imagine how a court could adjudicate [the] claim . . . without examining whether, but for the alleged interference, the outcome of the election would [have been] different” (I.F., at para. 19).

40As earlier noted, Lema J. distinguished the present case from TeleZone and found that there was an obvious inconsistency in the defeated candidate saying, on the one hand, that he did not challenge the result, and, on the other hand, claiming damages for the unfairness that caused his loss (para. 38).

41Resler further submits that “[t]he administrative act of returning a candidate to the Legislature is fundamentally different than a government decision to award a bidder a telecommunications contract. The election of a candidate to the Legislature is inherently public in nature. Challenges premised on public law considerations must be brought through public law actions” (A.F., at para. 67).

42I respectfully disagree. In fact, the situation here bears similarities to the circumstances in TeleZone. TeleZone alleged that it should have obtained a licence if Industry Canada had not breached its contractual and equitable duties. Anglin similarly alleges that Resler’s misconduct injured his chances of obtaining a different outcome. Therefore, as in TeleZone, Anglin “does not seek to undo what was done”, but rather complains about the manner in which the process was conducted (para. 79).

43As with the sexual assault conviction in C.U.P.E., Anglin’s claim is “not a contest about whether that decision has legal force, as clearly it does” (C.U.P.E., at para. 34). Rather than seeking to void the election results, Anglin seeks damages arising from Resler’s alleged misconduct in conducting the election.

44As earlier emphasized, the scope of the collateral attack doctrine is narrow and focuses on the order itself and its enforceability (C.U.P.E., at para. 34). The damages Anglin claims, if awarded, would have no impact on the outcome of the election. As noted by the Court of Appeal majority, Anglin’s claim assumes the unimpeachability of the election result and seeks compensation for misfeasance during the election process. His claim is therefore not a collateral attack on the 2015 election result. Instead, the wrongdoing he alleges against Resler and its negative consequences on his campaign form part of the factual basis for his claim.

(2) Anglin’s Claim Is Not an Abuse of Process

45Resler’s position on collateral attack forms part of his overarching argument that Anglin’s claim should be struck as an abuse of process, since he approaches collateral attack as a facet of this doctrine (A.F., at para. 56). As Resler did not clearly distinguish the two doctrines, I will consider whether his submissions support the broader conclusion that the claim constitutes an abuse of process.

46As discussed above, the collateral attack doctrine is to be construed narrowly. In contrast, abuse of process is a flexible principle that “engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute” (C.U.P.E., at para. 37, quoting Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55). Like collateral attack, the doctrine of abuse of process is primarily concerned with preserving the integrity of the court’s adjudicative function. As Arbour J., writing for the majority, observed in C.U.P.E., “[w]hether it serves to disentitle the Crown from proceeding because of undue delays, or whether it prevents a civil party from using the courts for an improper purpose, the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice” (para. 43 (citations omitted)). Its reach, however, is much broader. Over time, Canadian courts have relied on their inherent power to prevent abuse of process primarily to bar relitigation in circumstances where the strict specific requirements of issue estoppel or cause of action estoppel are not satisfied, yet allowing the claim to proceed would still offend principles of judicial economy, consistency, and finality (paras. 37 and 42; see also Lange, at pp. 201-4). This confirms the doctrine’s wider scope.

47Resler maintains that Anglin’s civil claim necessarily impugns the fairness and the outcome of the election, casting it as a “thinly veiled pretense” for a controverted elections petition. Resler also argues that allowing the claim for damages to proceed would effectively undermine the integrity of electoral institutions and public trust in the democratic system for four reasons (A.F., at paras. 59 and 69 et seq.). First, the prospect of civil liability would threaten the CEO’s independence and objectivity in administering a free and fair election. Second, a challenge to the validity of an election necessarily entails a challenge to the composition of the Legislative Assembly, creating uncertainty that frustrates the democratic will of the electorate. Third, remedies for electoral misconduct must be pursued expeditiously to avoid impugning the legitimacy of a Legislative Assembly that has since dissolved. Finally, permitting such a claim would imply the existence of a “right” to a seat in the Legislative Assembly.

48Having previously determined that Anglin’s claim does not seek to challenge the fairness or outcome of the election and does not impermissibly circumvent the controverted elections process, I cannot conclude that it amounts to an abuse of process on that basis.

49The judicial review proceedings also do not foreclose Anglin’s civil claim. Those proceedings addressed the CEO guidelines relating to signage whereas the civil claim alleges bad faith conduct on Resler’s part as regards his comments to the press regarding the illegal nature of the signs and his involvement in their destruction or removal. Also, as noted in the concurring reasons of the Court of Appeal, neither justice hearing the judicial review applications determined whether Resler performed public acts with the knowledge he was acting unlawfully as the issue was not before them (para. 191). Accordingly, the amended statement of claim does not constitute an abuse of process in the sense of relitigating an issue that has been conclusively determined in a prior proceeding.

(3) Resler’s Alleged Conduct Is Not Protected by Parliamentary Privilege

50Resler submits that the CEO is protected from a civil claim for damages as a matter of parliamentary privilege, as the civil claim will always involve the integrity of the election. He argues that elections form part of the Legislature’s prerogatives and privileges, meaning that it has inherent jurisdiction over all matters relating to the election of its own members, the courts can only intervene where this power has been expressly conferred so as to ensure respect for the separation of powers (A.F., at paras. 41 et seq., citing Harvey v. New Brunswick (Attorney General), 1996 163 (SCC), [1996] 2 S.C.R. 876, at para. 64; see also Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament (25th ed. 2019), by D. Natzler and M. Hutton, eds., at para. 12.8). Resler submits that, as the authority to determine civil claims for loss of chance of being elected was never specifically delegated to the courts by statute, the courts cannot adjudicate on this issue.

51I reject this argument as it again relies on the assumption that Anglin is challenging the legality of the election result.

52There is no question that the Legislative Assembly, whose privileges are defined in part by reference to those of the U.K. House of Commons, has the right “to provide for its proper constitution”, which encompasses the right to “determine whether members . . . are qualified to sit and vote” and, inherently, to rule on questions affecting its membership (United Kingdom, Joint Committee on Parliamentary Privilege, vol. 1, Report and Proceedings of the Committee (1999), at para. 231; Erskine May, at para. 12.8; see also Joint Committee on Parliamentary Privilege, at ch. 5; Legislative Assembly Act, R.S.A. 2000, c. L-9, s. 9(1)).

53The Legislature assigned the jurisdiction to determine controverted elections to the Court of King’s Bench through the Election Act (s. 185(1)). The legislated procedures serve an important but relatively narrow function: to provide for the adjudication of a controverted election in which a petitioner seeks “to void an election by reason of the undue return or undue election of a candidate as the member of the Legislative Assembly” (s. 185(1)).

54As determined above, Anglin does not seek to void the 2015 election. His action is not a collateral attack on the return of the winning candidate, nor is it an improper attempt to circumvent the controverted elections process. Therefore, because the claim does not challenge the composition of the Legislative Assembly, it does not engage the privilege on which Resler relies. That the claim does not engage the privilege Resler asserts is further underscored by the substance of Anglin’s allegations — namely, Resler’s directions to him regarding election signs, his comments to the media as to their non-conformity to the guidelines, and his authorization of their removal and/or destruction — none of which relates to the Legislative Assembly’s determination of the members qualified to sit and vote.

55It is also worth noting that Resler relies on a broadly framed privilege without justifying its scope in relation to the impugned acts in question. It is for the party who seeks to rely on parliamentary privilege that has not been authoritatively established to demonstrate its existence and, therefore, its necessity, namely that the “sphere of activity” is “so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body . . . that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency” (Chagnon, at paras. 29-30 and 127(5), quoting Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, at para. 46; see also Vaid, at paras. 75-76; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 153 (SCC), [1993] 1 S.C.R. 319, at p. 383). Here, Resler fails to explain how the privilege extends to the specific acts alleged by Anglin. I am therefore all the less persuaded by his argument.

(4) The Election Act Does Not Preclude Civil Claims for Acts Performed in Bad Faith

56Resler submits that he is also protected against a civil claim by the statutory immunity provided by s. 5.1(1) of the Election Act. Resler further submits that s. 5.1(1) prevents courts from examining issues relating to the integrity or fairness of an election outside of the Election Act’s controverted elections provisions. I disagree. It is not disputed that Anglin alleges acts performed in bad faith, and as I will explain, the Election Act leaves the door open to such acts.

57The determination of whether Resler benefits from a statutory immunity from Anglin’s claim requires the application of the modern approach to statutory interpretation, in this case, of the Election Act. This approach involves discerning legislative intent by reading the words of a provision in their entire context and in their grammatical and ordinary sense harmoniously with the statute’s scheme and objects (Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26). A crucial implication of this approach is that consequences arising from a statutory provision that are consistent with the purpose and scheme of the statute are presumed to have been intended by the Legislature (R. v. Wolfe, 2024 SCC 34, at para. 106, per Moreau J., dissenting).

58Starting with an analysis of the text,s. 5.1(1) of the Election Act provides:

5.1(1) No proceedings lie against the Chief Electoral Officer or a returning officer, or against a person acting for or under the direction of the Chief Electoral Officer or a returning officer, for anything done, or omitted to be done, in good faith in the exercise or performance or the intended exercise or performance of a power, duty or function under this Act, the Election Finances and Contributions Disclosure Act, the Alberta Senate Election Act, the Citizen Initiative Act or the Recall Act.

Section 5.1(1) extends immunity from any proceedings to the CEO for anything done or omitted to be done “in good faith”. The Election Act itself therefore leaves a door open to civil proceedings where bad faith is alleged. Had the Legislature intended that all election-related claims be subsumed in the Election Act’s provisions, the reservation contained in s. 5.1(1) would not have been included.

59It should be noted that the limited immunity contained in s. 5.1(1) differs from grants of full immunity to public officers in other statutes. For example, in Ernst v. Alberta Energy Regulator, 2017 SCC 1, [2017] 1 S.C.R. 3, the Court considered the immunity clause in s. 43 of the Energy Resources Conservation Act, R.S.A. 2000, c. E-10. In that case, the complainant filed a claim against the Alberta Energy Regulator (“Board”) for breaching her right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. However, s. 43 of the Energy Resources Conservation Act provides that:

43 No action or proceeding may be brought against the Board or a member of the Board or a person referred to in section 10 or 17(1) in respect of any act or thing done purportedly in pursuance of this Act, or any Act that the Board administers, the regulations under any of those Acts or a decision, order or direction of the Board.

The Court confirmed the striking of the claim for Charter damages as it was plain and obvious that s. 43, on its face, barred the claim, since it expressly provides an absolute and unqualified immunity for the Board and its members, as long as they act in pursuance of the Act.

60Another example of an absolute immunity clause is Article 29 of the Convention for the Unification of Certain Rules for International Carriage by Air, 2242 U.N.T.S. 309 (“Montreal Convention”), part of Canadian federal law by virtue of the Carriage by Air Act, R.S.C. 1985, c. C-26. This Court considered the clause in Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, in the context of claims arising from a breach of an airline’s obligation to provide services in French under the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.). The Montreal Convention includes a liability scheme whereby Articles 17 to 19 establish the liability of the air carrier in cases of accidents causing death or bodily injury to a passenger, destruction, loss or damage to baggage or cargo, and for damage occasioned by delay, and Article 29 provides that,

[i]n the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

The Court found that the liability scheme barred the claim for damages because the text and purpose of these provisions, particularly Article 29, make it clear that they provide an exclusive and uniform set of rules. The scheme therefore barred resort to other bases for liability.

61Unlike s. 5.1(1) of the Election Act, neither of these examples involves a statutory immunity limited to actions carried out in good faith. Simply put, the Legislature could have provided for full and absolute immunity, but chose not to.

62It can therefore be inferred from the text of s. 5.1(1) that its immunity does not apply to acts or omissions performed in bad faith in the exercise or performance of Resler’s duty or function under the Election Act and the other statutes mentioned in the provision. 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.

63A contextual and purposive analysis also supports the conclusion that the Election Act does not bar civil claims for acts performed in bad faith. Regarding context, the scheme of the Election Act does not impliedly exclude Anglin’s claim. Anglin noted that the Ontario Court of Appeal identified three factors that courts should consider in determining whether a civil claim is impliedly excluded by statute:

(i) whether the “process for dispute resolution established by the legislation” is “consistent with exclusive jurisdiction”;

(ii) the “nature of the dispute” and the “extent to which the court’s assumption of jurisdiction would be consistent or inconsistent with that scheme”; and

(iii) “the capacity of the scheme to afford effective redress” on the basis that “where there is a right there [ought to be] a remedy.”

(R.F., at para. 75, citing Hopkins v. Kay, 2015 ONCA 112, 124 O.R. (3d) 481, at paras. 31-33 (emphasis deleted).)

64With respect to the first consideration, Anglin made three points. First, the controverted elections provisions of the Election Act only allow “the candidate whose election is challenged” to be named as a respondent in the petition challenging the election results (s. 186(2)). The amended statement of claim is not against the person who won the election nor against any other candidates. Second, the petition contesting the election must be filed within 30 days of the election (s. 185(2)(b)). The amended statement of claim included conduct that occurred well after 30 days post-election. Third, while the controverted elections provisions ultimately require the determination of the issue to be made by a judge, the CEO is an integral part of the process of implementing the judge’s decision (s. 195(1)). This would have the effect of putting Resler in charge of implementing the judge’s decision.

65With respect to the second consideration, Anglin noted that as regards the nature of the dispute, the controverted elections provisions do not contemplate the nature of his personal claim nor does he seek to overturn the election results. The controverted elections provisions only contemplate a determination of who should be recognized as winning the election, which is not in issue. Anglin’s claim therefore does not fit within the procedural framework of the Election Act as his claim for damages is not against the candidate who won the seat. As Anglin noted, if he is limited to a public remedy, then there is no personal accountability whatsoever for individuals who commit torts against candidates.

66With respect to the third consideration, Anglin noted that the controverted elections provisions “would shift Resler’s personal liability for his actions to a process that provides no remedy whatsoever” (R.F., at para. 82).

67I find Anglin’s arguments addressing the considerations set out in Hopkins to be compelling. 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.

68The Election Act also only contemplates one remedy — a declaration that the election is void by reason of the “undue return or undue election of a candidate” as the MLA (s. 185(1)). That is the only jurisdiction carved out for the courts to remedy alleged defects in the conduct of an election. However, if the only possible remedial action was through the mechanism of a controverted election, it would not make sense for s. 5.1(1) to grant the CEO specific immunity for his actions as an individual public officer.

69Turning to the purpose of s. 5.1(1), if a civil claim does not challenge the validity of the election, leaving room for it strengthens the accountability of public officers and provides relief for victims of tortious conduct. This is a logical basis for the Election Act’s silence on bad faith actions and its express immunity for the CEO’s good faith actions.

70I find that, based on the text, context and purpose of s. 5.1(1), Anglin is entitled to claim a personal remedy based on his allegations of bad faith and tortious conduct, the usual remedy for which is damages, including punitive damages where warranted. I note that the Chief Electoral Officer of Quebec, an intervener in this appeal, 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:

[translation] . . . subject to their relative immunity for any act or omission in good faith in the performance of their duties, an election administrator may in principle be the subject of a civil suit for bad faith or gross negligence if this could have caused actual harm to the plaintiff, for example an injury or other material damage.

(Chief Electoral Officer of Quebec’s condensed book, at p. 2)

I agree.

71Having concluded that Anglin’s civil claim is not a collateral attack on the election result or an abuse of process, that it is not barred by parliamentary privilege, and that it is not excluded either expressly or impliedly by the Election Act, I will now consider whether the claim discloses a reasonable cause of action or whether it should instead be struck at this preliminary stage.

B. The Allegations and Facts Pleaded Disclose a Reasonable Cause of Action

(1) The Test for Striking Out a Claim

72Rule 3.68 of the Alberta Rules of Court provides, in part, as follows:

3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following:

(a) that all or any part of a claim . . . be struck out;

(2) The conditions for the order are one or more of the following:

(b) a commencement document or pleading discloses no reasonable claim or defence to a claim;

(d) a commencement document or pleading constitutes an abuse of process;

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b).

73On a motion to strike under r. 3.68, the pleadings must be read generously and without any assessment of their merits (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 21; Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 95). Claims should only be assessed for legal sufficiency and the facts pleaded must be accepted as true (Imperial Tobacco, at para. 22). As r. 3.68(3) sets out, no evidence is admissible on the motion. For the application to succeed, it must be plain and obvious that the pleadings do not disclose a reasonable claim (Imperial Tobacco, at para. 17; Elder Advocates, at para. 20). The only limitation on this principle is that the claim must clearly plead the facts, rather than presenting abstract speculation or facts that are manifestly unprovable (Imperial Tobacco, at para. 22). However, 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).

74Importantly for the purposes of this appeal, the approach to a striking motion must be flexible and allow a novel but arguable claim to proceed to trial (Imperial Tobacco, at para. 21).

75Having set out the test applicable for striking out a claim, I now turn to whether Anglin has sufficiently pleaded the torts of misfeasance in public office and trespass to chattel. I also address whether the claim for damages for loss of chance should prevent the claim from proceeding.

(2) The Misfeasance in Public Office Claim

76The origins of the misfeasance in public office tort can be traced back to English electoral cases. In Ashby v. White (1703), 2 Ld. Raym. 938, 92 E.R. 126 (K.B.), rev’d (1703), 1 Bro. P.C. 62, 1 E.R. 417 (H.L.), a returning officer prevented the plaintiff from voting. The House of Lords characterized the right to vote as a property right, but their decision left some ambiguity as to whether the loss of that right constituted a form of damage in itself or whether it needed to be associated with a pecuniary loss. Nevertheless, Ashby clarified that redress is available when a right has been violated fraudulently or maliciously by a public officer.

77As noted by Anglin, Ashby expanded the earlier scope of claims against Crown officers, which were founded in trespass, to permit more generalized claims for abuse of power in a public office (R.F., at para. 56). The majority of the Court of King’s Bench in Ashby had ruled that the issue must be left to Parliament. The House of Lords set aside this decision, ruling that a remedy must follow a right and that the courts, not Parliament, had the jurisdiction to determine such cases.

78An earlier English decision acknowledged an entitlement to compensatory damages for misfeasance in public office in the electoral context. In Turner v. Sterling (1671), 2 Ventris 25, 86 E.R. 287, the complainant brought a claim to recover the profits he would have earned had he gained a seat in municipal office as a bridge-master. He alleged that he had received more votes than his opponent, but that the mayor had declared his opponent to be the winner without holding a poll to count the votes. The court found that it was as “bad as if he had turned him out of his office” (p. 289) and that the complainant was therefore entitled to compensatory damages. In this case, “it was the possibility of damage that was important” (E. Chamberlain, Misfeasance in a Public Office (2016), at p. 28 (emphasis in original)).

79These 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.

80Although the tort originally applied only where a public officer abused a power that it actually possessed, this Court’s decision in Roncarelli v. Duplessis, 1959 50 (SCC), [1959] S.C.R. 121, confirmed that the reach of the tort is broader than its early formulations in English cases and set the contours of its modern application in Canadian law (Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at paras. 18 and 19; H. Wruck, “The Continuing Evolution of the Tort of Misfeasance in Public Office” (2008), 41 U.B.C. L. Rev. 69, at pp. 72 and 74). In Roncarelli, the owner of a restaurant alleged that Duplessis, who was then Premier of Quebec, had acted outside of his legal powers by arbitrarily ordering the Quebec Liquor Commission to cancel his liquor licence under the Alcoholic Liquor Act, R.S.Q. 1941, c. 255. He claimed that Duplessis intended to punish him for providing bail to members of Jehovah’s Witnesses who had been charged with breaching municipal by-laws by distributing literature. The restaurant owner pursued a civil claim against Duplessis for damages, and the Court found him to be personally liable for ordering the cancellation of the licence without legal justification.

81Whereas, in Ashby, the election officer had the authority to prevent an individual from voting, Duplessis was not exercising any of his lawful official powers when he ordered the cancellation of the liquor licence (Roncarelli, at pp. 158 and 184). Despite this, the Court found Duplessis liable in tort law, establishing that misfeasance in public office may arise from the exercise of any public power, even where the impugned conduct does not involve the breach of powers actually held. This development was significant, as it showed that the tort targets a distinct harm — the bad-faith exercise of public power — rather than the nature or source of the public officer’s statutory or prerogative authority.

82The tort of misfeasance in public office can be established when a public official’s deliberate and unlawful actions, carried out with the knowledge that the conduct was unlawful and likely to cause harm, cause compensable damage to the complainant (Ontario (Attorney General) v. Clark, 2021 SCC 18, [2021] 1 S.C.R. 607, at para. 22; Odhavji Estate, at paras. 23 and 32). Three appellate decisions charted the course of the misfeasance tort and “set out in considerable detail the underlying rationale for [its] modern version” (see E. Chamberlain, “What is the Role of Misfeasance in a Public Office in Modern Canadian Tort Law?” (2009), 88 Can. Bar Rev. 575, at p. 578). The first, Three Rivers DC v. Bank of England (No. 3), [2001] UKHL 16, [2003] 2 A.C. 1, set out the elements of the tort and provided guidance on the elements of duty and malice. The Three Rivers framework was then adopted in Odhavji Estate and, in Watkins v. Home Secretary, [2006] UKHL 17, [2006] 2 A.C. 395, which emphasized the need to establish material damage and not merely the violation of a right.

83In Odhavji Estate, at para. 22, the Court cited Three Rivers, in which the House of Lords held that the tort of misfeasance in a public office can arise in one of two ways. The first involves conduct that is specifically intended to injure a person or class of persons. The second involves a public officer who acts with knowledge both that they have no power to do the act complained of and that the act is likely to injure the plaintiff.

84Professor Chamberlain notes that the tort of misfeasance in public office occupies a unique position at the intersection of tort law and administrative law (“When Unlawfulness Becomes Tortious: Misfeasance in a Public Office and Administrative Law” (2015), 44 Advocates’ Q. 489, at p. 502). Its very purpose is to serve as a tool against misconduct by government officials (p. 501). The tort does not stand in contradiction to administrative law proceedings. Rather, it addresses conduct that is uniquely tortious in nature and distinct from an administrative wrong, thus providing an entirely separate remedy (pp. 492-93). In fact, since a misfeasance claim requires proof of “deliberate disregard of official duty coupled with knowledge that the misconduct is likely to injure the plaintiff”, as well as material damage, a plaintiff cannot bring such a claim merely to vindicate a right or because a public officer has acted unlawfully, or breached a statutory duty (Odhavji Estate, at para. 23; see also Watkins, at para. 27; Welbridge Holdings Ltd. v. Greater Winnipeg, 1970 1 (SCC), [1971] S.C.R. 957, at pp. 969-71; R. in right of Canada v. Saskatchewan Wheat Pool, 1983 21 (SCC), [1983] 1 S.C.R. 205, at pp. 224-28). Those seeking declarations to remedy such breaches or reconsideration of a decision are restricted to administrative law remedies (Chamberlain (2015), at p. 493).

85The focus in tort is not on reassessing the propriety of the administrative decision. Instead, actions taken in the administrative context become tortious when the use of public power serves a purpose outside the proper scope of public law, such as injuring the plaintiff (A. Ripstein, Private Wrongs (2016), at pp. 182-83). In exercising public powers for a purpose beyond the scope for which they were conferred, public officers create a “relationship that lack[s] a basis in public law” and instead “makes those powers private as between the official and the person against whom they are used” (pp. 183-84).

86The tort of misfeasance in public office therefore provides a form of redress that holds public officers accountable for intentionally misusing their public power. As Professor Chamberlain explains, its goals differ from those of judicial review:

The gist of the tort is the deliberately unlawful act, not the rightness or wrongness of the decision. . . . [I]f one examines successful misfeasance cases, it is clear that most plaintiffs are not interested in having the decision retaken. Typically, the relevant opportunity has already been lost. . . . This highlights that the goals of judicial review and misfeasance in a public office are entirely separate . . .

(Chamberlain (2015), at pp. 501-2)

87Thus, the tort of misfeasance in public office is a legitimate legal avenue through which a candidate can challenge the misconduct of public officials without challenging the membership of the legislature. However, 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 (Chamberlain (2015), at p. 504; see also Odhavji Estate, at para. 32).

88As the Court of Appeal majority in this case noted, there are various elements of the amended statement of claim that could meet the Odhavji Estate test for misfeasance in public office. Anglin’s claim contains allegations relating to Resler’s position and duties as a public officer, indicating malicious intent, as well as material damages caused by his conduct. The fact that the tort of misfeasance in public office has not yet been applied to an electoral context in the way that Anglin’s claim does is not a reason to prevent it from proceeding.

89The amended statement of claim pleads bad faith, for example, that Resler “exercised public powers for an improper or ulterior motive, knowing that it was likely to cause harm to Anglin” and that “Resler knew or should have known that he had no power to undertake these actions or he had a subjective and reckless indifference with respect to whether he had the power to undertake these actions” (paras. 8-9). Specific allegations that could constitute bad faith also include that Resler worked with other individuals, including the other defendants, who were opposed to Anglin’s re-election. Resler is alleged to have authorized other individuals to remove or damage Anglin’s signs, and that he intended “to create an unfair advantage for Anglin’s opponents and to deny him a fair election” (para. 7). The amended statement of claim also alleges that Resler, “singled out” his signs when other candidates’ non-compliant signs were ignored (para. 6(vii)).

90At the time of this correspondence between Resler and Anglin regarding the respondent’s signage, s. 4.4 of the Election Act provided as follows:

4.4(1) Except as provided in subsections (2) and (3), the Chief Electoral Officer, any former Chief Electoral Officer and every person who is or was employed or engaged by the Office of the Chief Electoral Officer shall maintain the confidentiality of all information and allegations that come to their knowledge in the course of an inquiry or investigation.

91The amended statement of claim alleges that Resler, or agents or employees acting on his behalf, made public statements impugning the legality of Anglin’s signs (para. 6(iii)). Specifically, Anglin claims that Elections Alberta made comments to two local newspapers, stating: “His signs are illegal and we’ll be taking further actions if he doesn’t take them down himself; we’ll be taking them down for him” (affidavit of Joseph Anglin (reproduced in R.R., vol. II, at pp. 2-20), at p. 7; Exhibit 17 (reproduced in R.R., vol. II, at pp. 102-4), at p. 103; Exhibit 18 (reproduced in R.R., vol. II, at pp. 105-6), at p. 106).

92As for material damages, the parties disagree about whether the loss of chance to be re-elected and to earn income as an MLA are compensable. However, Anglin also pleads damages for the removal and destruction of his signs and for reputational harm, claims that are, without controversy, compensable in tort ((i), (ii) and (iv) of the first paragraph numbered 16).

93I agree with the Court of Appeal that various elements of the amended statement of claim contain factual allegations that could meet the Odhavji Estate test for misfeasance in public office. Accepting the pleaded facts as true, I am satisfied that the allegations are sufficient and should remain.

(3) The Trespass to Chattel Claim

94This claim relates to the allegations that Anglin’s signs were damaged or removed even after having been rendered compliant with the CEO’s guidelines. As the Court of Appeal majority notes, this allegation would support a claim for trespass to chattels as against the other defendants (para. 70). As regards Resler, however, it may be subsumed in and succeed as a particular of the misfeasance in public office claim. To that extent, the Court of Appeal majority allowed the claim to be maintained. I endorse this approach.

(4) The Claim for Damages for Loss of Chance

95Loss of chance damages arise in circumstances where the plaintiff has been deprived of a chance or opportunity to profit as a result of the defendant’s wrongdoing. The leading English decision is Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.), where the court found that recovery was available for the loss of a chance, even if the loss suffered is contingent on factors outside the plaintiff’s control.

96Anglin alleges that Resler, with the help of agents or employees acting on his behalf and on his authority, undertook actions with the intent to cause harm and injure his chances of being re-elected (amended statement of claim, at paras. 7-10). He claims $400,000 “for the loss of a chance of being re-elected due to the wrongful interference with the election” (see (iii) of the first paragraph numbered 16 and para. 18(iii)). Justice Karakatsanis would decide the availability of loss of chance damages. I refrain from engaging with the substance of her arguments, as the question is better left to be determined at first instance, particularly given that the availability of loss of chance damages in tort law remains unsettled in Canadian jurisprudence and raises significant unresolved questions of causation (see Folland v. Reardon (2005), 2005 1403 (ON CA), 74 O.R. (3d) 688 (C.A.), at paras. 72-92; Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544, 41 C.C.L.T. (4th) 177, at paras. 261 et seq.; see, generally, Laferrière v. Lawson, 1991 87 (SCC), [1991] 1 S.C.R. 541, at pp. 600-609).

97Furthermore, Resler does not address its availability as a matter of tort law. Rather, he submits, as part of his arguments relating to collateral attack and abuse of process, that Anglin’s claim for loss of chance will require the court to inquire into the integrity, fairness or results of the election — an inquiry that cannot be undertaken outside the Election Act’s controverted elections provisions — and that the claim should therefore be struck.

98Neither Lema J. nor the Court of Appeal has fully explored the issue of loss of chance beyond the collateral attack and abuse of process analysis, and I have rejected Resler’s arguments on these doctrines. Given the limited submissions by the parties, the partial consideration by the courts below, the pending summary judgment application and the possibility of further amendments to the pleadings, I decline to strike the loss of chance damages pleadings at this stage in the proceeding.

99I would note, however, that, even if a loss of chance claim is available in tort, 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. Resler argues that damages for loss of income are inappropriate, as serving in the Legislative Assembly is meant to be a public service, not a source of profit (A.F., at paras. 5 and 86). Resler refers to Barnardiston v. Soame (1674), 6 How. St. Tr. 1063, at p. 1102, which held that “[t]o sit in parliament is a service to the member, for the benefit of the king and kingdom, and not for the particular profit of the member” (A.F., at para. 83). Nonetheless, the availability of a civil claim for misfeasance in public office in an electoral context is separate from the question of the appropriate measure of damages. As I have concluded that Anglin may proceed with his claim, I would defer to the judge hearing the case on its merits to fully address the appropriate measure of damages should he successfully establish his claim, including whether damages for a loss of chance claim are sustainable in fact and in law.

C. Conclusion

100Having found that the claim is not barred by the doctrines of collateral attack or abuse of process, or any privilege or immunity, and that the allegations and facts pleaded disclose a reasonable claim, I agree with the Court of Appeal majority reasons reinstating the amended statement of claim with the exception of the allegations of malicious prosecution.

VII. Disposition

101For the above reasons, I would dismiss the appeal, with costs. Anglin sought an order for costs on a solicitor-client basis, both in this Court and in the courts below (R.F., at para. 113). There is no basis for awarding solicitor-client costs because Resler’s conduct as a litigant has not been shown to be reprehensible, scandalous or outrageous: Patrick Street Holdings Ltd. v. 11368 NL Inc., 2026 SCC 15, at paras. 139-40. 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.

The reasons of Côté and Rowe JJ. were delivered by

Rowe J. —

102I have read the reasons of Justice Moreau. I agree with her analysis and adopt in full her reasons, which constitute the opinion of a majority of this Court.

103I have also read the reasons of Justice Karakatsanis, who would strike the portion of Mr. Anglin’s claim seeking loss of chance damages. She reasons that such damages are categorically unavailable in claims arising from election losses because causation will always be too uncertain and because permitting such claims would be contrary to public policy.

104With respect, I disagree with my colleague’s approach. This Court should not address the issues of causation in loss of chance claims or what constitutes too speculative a chance since no party made submissions on those issues, 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.

105In my further view, my colleague’s reliance on free-standing public policy grounds to strike the claim raises significant concerns. That approach lacks a recognized doctrinal foundation, duplicates concerns already addressed through established doctrines but without their structural rigour, and would expand the limited statutory immunity the Legislature has chosen to provide.

I. The Court Should Not Address the Availability of Election Loss of Chance Claims on This Appeal

A. The Court Should Avoid Deciding Issues Absent Adequate Party Submission and Consideration Below

106This Court’s role “is to adjudicate disputes with the benefit of trial-level findings of fact and appellate-level reasons on the issues fully argued by the parties” (R. v. McGregor, 2023 SCC 4, [2023] 1 S.C.R. 198, at para. 104). In my view, this fundamental aspect of the Court’s institutional role counsels against deciding the issues addressed by Justice Karakatsanis.

107My colleague would strike Mr. Anglin’s claim for loss of chance damages on categorical grounds: first, that establishing causation between a wrongdoing and the loss of a chance to win an election will always be too uncertain; and second, that a candidate’s lost chance will always be too speculative.

108Yet those issues were neither litigated on this appeal nor addressed by the courts below. The parties made no submissions on the causal link between Mr. Resler’s allegedly tortious conduct and Mr. Anglin’s election loss, on whether Mr. Anglin could prove such a link, or on Mr. Anglin’s likelihood of electoral success in the 2015 election in Rimbey-Rocky Mountain House-Sundre. The Court has received no submissions on the broader and consequential issues that my colleague would nonetheless determine, namely, how causation and proof of a sufficiently real lost chance should operate in election contexts.

109The parties addressed loss of chance damages only as a matter of abuse of process and collateral attack (A.F., at paras. 37 and 56-62; R.F., at paras. 5-8), as did the courts below (2024 ABCA 113, 69 Alta. L.R. (7th) 171, at paras. 8, 16 and 49-52; 2022 ABQB 477, 46 Alta. L.R. (7th) 263, at paras. 10-15, 18-24 and 37-41). Mr. Resler referred to the loss of chance criteria that relate to causation and the existence of a sufficiently real chance only once in his factum, and solely to argue that such an inquiry would amount to consideration of a controverted election claim (A.F., at paras. 61-62). Mr. Anglin responded in kind, referencing loss of chance damages only to maintain that his claim does not “challenge the election” or the legitimacy of the successful candidate (R.F., at para. 8).

110Despite the parties not addressing, either in regard to the facts of the appeal or as general matters, causation or the requirement of a more-than-speculative chance, my colleague is of the view that the Court may decide these issues because the parties advanced other arguments about loss of chance damages or because loss of chance is listed as a head of damage in Mr. Anglin’s claim (Karakatsanis J.’s reasons, at paras. 151-53). Respectfully, I disagree.

111It is a fundamental principle that courts should generally adjudicate matters as framed by the parties.

112This principle reflects our adversarial process: “. . . as a prelude to the dispute being solved, the interested parties have the opportunity of adducing evidence (or proof) and making arguments to a disinterested and impartial arbiter who decides the case on the basis of this evidence and these arguments” (P. Weiler, “Two Models of Judicial Decision-Making” (1968), 46 Can. Bar Rev. 406, at p. 412; see also R. J. Sharpe, Good Judgment: Making Judicial Decisions (2018), at pp. 81-82; R. v. Bouvette, 2025 SCC 18, at para. 101). Accordingly, the principle of party presentation provides that it is the parties who control their case and “frame the issues for decision” (R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 38; see also McGregor, at para. 104). The corresponding duty on all courts is to respect those strategic choices (Mian, at para. 39).

113These principles serve both judicial impartiality and procedural fairness. Addressing the issues as the parties frame them enhances courts’ ability both to remain independent and impartial and to be seen as independent and impartial (Mian, at para. 39; Weiler, at p. 413). Courts must not “be seen to go in search of a wrong to right” (Mian, at para. 42).

114Procedural fairness is an especially serious concern where a matter is decided on a basis which the parties, particularly the party whose position will be prejudiced, have not been provided an opportunity to consider and provide argument. A litigant should not be taken by surprise by reasons for judgment.

115It is for these reasons that, for example, an appellate court may only raise a new issue — that is, an issue that “cannot reasonably be said to stem from the issues as framed by the parties” (Mian, at para. 35 (emphasis added)) — of its own accord in rare circumstances. It may only do so where failing to address the issue would risk an injustice, the court has considered the sufficiency of the record, and the parties have been given notification and an opportunity to respond (paras. 30 and 41). Even where it is a party that seeks to raise a new issue on appeal, a court will only address it exceptionally and after applying a stringent test, central to which is whether the issue has been fully argued and doing so would not cause procedural prejudice (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 21-22; John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6, at para. 22; Piekut v. Canada (National Revenue), 2025 SCC 13, at para. 116; TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144, at para. 104; R. v. I.M., 2025 SCC 23, at para. 219).

116The incremental and adjudicative nature of the common law, and the related institutional limitations of the courts, reinforces these concerns. The common law develops incrementally and in concrete disputes between litigants, rather than by abstract policy debates (see Ahluwalia v. Ahluwalia, 2026 SCC 16, at para. 69, per Kasirer J., and at para. 302, per Jamal J.). Litigants and courts of first instance play an important role in demonstrating to appellate courts both how the common law may need to incrementally evolve in response to the real dispute before the court, and how that evolution may occur in accordance with established principles for such development (see Friedmann Equity Developments Inc. v. Final Note Ltd., 2000 SCC 34, [2000] 1 S.C.R. 842, at para. 42). The polycentric nature of legal issues does not make courts into legislative bodies, free to modify the common law as they see fit (see McGregor, at para. 104; Ahluwalia, at para. 71).

117Courts should be particularly wary of “initiating developments of tort law whose ramifications are uncertain or for which a consensus remains elusive” (Ahluwalia, at para. 71; see also Friedmann, at paras. 42, 44 and 48). That caution is all the more pertinent for Canada’s apex court.

118It is also especially warranted here. A categorical conclusion that loss of chance damages are unavailable in electoral contexts because of where they lie on a “spectrum of ‘known unknowns’” (Karakatsanis J.’s reasons, at para. 174) may have implications for loss of chance damages in tort law more broadly, an area that remains contested and evolving. As former justice Robert J. Sharpe has observed, writing extra-judicially, an individual case may provide only “a limited perspective on the general legal issue involved”, and this “narrow and fact-specific nature of the common law” warrants judicial restraint (p. 84; see also B. McLachlin, “The Role of the Supreme Court of Canada in Shaping the Common Law”, in P. Daly, ed., Apex Courts and the Common Law (2019), 25, at p. 35).

119All courts are limited by these principles and must operate within their constraints. To hold that courts may, notwithstanding, decide cases on the basis of matters not argued or addressed by the parties would have implications beyond this appeal and beyond this Court. It would suggest that no superior court judge is limited to “operating within the walls of the specific dispute [they] are called to decide” (Sharpe, at pp. 81-82).

B. The Present Record Does Not Justify a Categorical Rule

120My colleague’s reasoning on the doctrinal difficulties in election loss of chance cases further illustrates why determination of these issues is better left to a case that involves a fuller record, sufficient argument by the parties, and a procedural vehicle that is more suitable than a motion to strike.

121First, as the loss of chance doctrine is contemplated as a means of providing tortious liability for uncertain loss, uncertainty in an election context may support considering the doctrine’s applicability, rather than categorically foreclosing it (see E. J. Weinrib, “Causal Uncertainty” (2016), 36 Oxford J. Leg. Stud. 135, at pp. 157-63; S. M. Waddams and P. Healy, The Law of Damages (loose-leaf), at § 13:4; J. Cassels and E. Adjin‑Tettey, Remedies: The Law of Damages (3rd ed. 2014), at pp. 375-88).

122Second, the record before us does not provide a basis to conclude that electoral outcomes are invariably too unpredictable or speculative to permit judicial assessment of loss of chance claims. I question whether we can determine on this appeal that, in every election, the unreliability of polls or the fickleness of voters mean that a court could never, including with the assistance of expert evidence, assess either the impact of a defendant’s tortious conduct on a plaintiff’s chances of success or whether those prospects were sufficiently real and non-speculative. Elections occur in widely varying contexts, at all levels of government, involving different numbers of voters and candidates, levels of voter turnout, and effects of party affiliation, incumbency and local dynamics.

123Whether such matters are incapable of judicial assessment likely warrants expert evidence. They are not, in my view, suitable to the strict threshold for judicial notice, which applies to “notorious and undisputed facts, or . . . facts which are capable of immediate and accurate demonstration, by resorting to readily accessible sources of indisputable accuracy” (Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, at para. 77). I also question the suitability of reliance on studies of polling in Britain and the United States (Karakatsanis J.’s reasons, at para. 176) or on American case law addressing, in general terms, the difficulty U.S. courts may face, months before an election, in determining whether a certain election rule will determine an election winner (para. 178, referencing Bost v. Illinois State Bd. of Elections, 607 U.S. 1 (2026)).

124Third, and relatedly, these issues underscore the value of a developed factual record, which is absent in this appeal. There are no factual findings regarding whether the polls during Mr. Anglin’s campaign were “unpredictable, dynamic and constantly changing”, whether the candidates “poll[ed] at significantly different levels of support over the course of [the] election campaign” or whether the alleged tortious conduct corresponded with any measurable change in Mr. Anglin’s polling or electoral prospects (Karakatsanis J.’s reasons, at para. 176).

125Fourth, the underlying motion to strike is an ill-suited procedural vehicle for resolving these issues. To the extent my colleague relies on the position that Mr. Anglin’s claim discloses no reasonable cause of action, the Court is restricted to the pleadings and could not consider the evidentiary record, even were it sufficient (Alberta Rules of Court, Alta. Reg. 124/2010, r. 3.68(2)(b) and (3); C.A. reasons, at para. 44). Yet, as demonstrated, resolution of these questions warrants such a record, rather than in abstracto determination.

126Further, a motion to strike is “a tool that must be used with care” because “[t]he law is not static and unchanging” (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 21). Claims that do not contain a “radical defect” should ordinarily be permitted to proceed to trial (Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at p. 980; see also Imperial Tobacco, at para. 17). That caution carries particular force here, given that the availability of loss of chance damages in torts generally remains an unsettled question (Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544, 41 C.C.L.T. (4th) 177, at paras. 261-62; see also Karakatsanis J.’s reasons, at para. 160).

127I raise these considerations not to make any definitive statement on whether loss of chance damages may be available in the electoral context. Rather, I do so to demonstrate why the issues should await a case in which they are squarely raised, fully argued, and supported by an adequate record. In these circumstances, given the lack of consideration by the parties and courts below, the procedural vehicle before us, and the thinness of the record on this issue, restraint is warranted. As great as the cost may be of leaving significant questions unanswered (Karakatsanis J.’s reasons, at para. 171), there is a still greater cost of answering them without the benefit of the adversarial process.

II. Public Policy Is Not a Proper Basis on Which to Strike the Claim for Loss of Chance Damages

128Justice Karakatsanis would also strike this head of damages on public policy grounds, reasoning that permitting loss of chance damages in an electoral context requires a court to consider allegations that could impugn the integrity of the election results outside the statutory scheme and might undermine public confidence in the legislature (paras. 184 and 188).

129With respect, I question this approach. The introduction of a free-standing judicial power to reject claims on the basis of public policy risks uncertainty for litigants and instability in the development of the law, and is not supported by the authorities cited. Further, resort to such a power here duplicates the consideration of concerns already addressed through established doctrines — abuse of process, collateral attack, and implied statutory exclusion — while bypassing the structural and analytical discipline those doctrines impose. My colleague’s approach would also, in effect, expand the limited statutory immunity which the Legislature has chosen to provide to the chief electoral officer.

A. A General Power to Strike Claims on the Basis of Public Policy Is Problematic and Not Supported by Jurisprudence

130I respectfully disagree with my colleague’s reliance on public policy grounds as an independent basis to strike the loss of damages claim absent an established doctrinal foundation.

131This Court has previously rejected the creation of a “general power to invalidate actions on grounds of public policy” on the basis that such a discretion would lack “clear guidance as to when judges could exercise this draconian power and upon what grounds” (Hall v. Hebert, 1993 141 (SCC), [1993] 2 S.C.R. 159, at p. 169). As McLachlin J. (as she then was) cautioned in Hall, “unless placed upon a firm doctrinal foundation and made subject to clear limits”, such a power would prove problematic (ibid.). In my view, those concerns apply here. A free-standing public policy discretion risks indeterminacy, opens the door to decisions that exceed courts’ institutional role, and creates an avenue for ad hoc judicial determinations.

132Nor do the authorities on which my colleague relies stand for the proposition that courts may invoke public policy on an ad hoc basis to determine the development of tort law.

133British Columbia v. Zastowny, 2008 SCC 4, [2008] 1 S.C.R. 27, concerned the doctrine of ex turpi causa non oritur action, which precludes recovery in tort actions where doing so would permit a person to profit from illegal or wrongful conduct. The doctrine is exceptional, narrowly prescribed, and may only be considered where pleaded as a defence (para. 20; A. M. Linden et al., Canadian Tort Law (13th ed. 2025), at §9.03). Its limited scope reflects both the seriousness of denying a plaintiff a remedy and that its rationale is to prevent civil actions that “would compromise the integrity of our justice system” (Zastowny, at para. 3).

134Indeed, this Court’s treatment of ex turpi elsewhere cautions against the broader proposition for which my colleague relies on Zastowny. The seminal Canadian case on the doctrine is Hall. McLachlin J.’s salient caution in Hall against an unbounded judicial discretion to deny claims on public policy grounds, which I quote above, arose in the course of rejecting an approach that would replace ex turpi with “a power to reject claims on considerations of public policy” (p. 168; see also p. 169).

135Nor does Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, support the ad hoc invocation of public policy. Andrews concerned the assessment of non-pecuniary damages for pain and suffering, a category for which it is “simply impossible to put a money value” (ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, at para. 106). Setting an upper limit for such awards was, therefore, inherently “a philosophical and policy exercise” (Andrews, at p. 261). In setting that limit, Dickson J. (as he then was) did not invoke policy as a free-standing basis to deny recovery. Rather, he drew on relevant factors, including principles of damages, to develop a “‘functional’ approach” to the assessment of awards that are, by necessity, “arbitrary or conventional” (pp. 261-63; see also Arnold v. Teno, 1978 2 (SCC), [1978] 2 S.C.R. 287, at pp. 332-34; Waddams and Healy, at § 3:8).

136Finally, LeBel J.’s discussion of the doctrine of mitigation in British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38, [2004] 2 S.C.R. 74, also does not support my colleague’s approach. LeBel J. was writing in dissent, including on the applicability of the mitigation doctrine itself. Further, he did not suggest that mitigation rests on a policy against economic waste alone. Rather, he stated that the doctrine reflects the general principle, rooted in causation, that a “plaintiff should not be able to recover compensation for a loss that, by taking reasonable action, could have been avoided” (para. 176).

B. Inconsistency Between the Proposed Public Policy Grounds and the Result on Abuse of Process, Collateral Attack, and Implied Statutory Exclusion

137The proposed policy grounds that my colleague would apply are not novel considerations that lie outside existing doctrine. They substantially overlap with concerns that belong under the established doctrines that Justice Moreau has already applied and rejected. By invoking public policy independently of these doctrines and their structured analyses, Justice Karakatsanis arrives at inconsistent conclusions, while avoiding the limits and structure those doctrines impose.

138This is apparent with respect to collateral attack. Justice Moreau concludes that Mr. Anglin’s claim is not a collateral attack on the controverted election scheme because it “does not seek to challenge the fairness or outcome of the election and does not impermissibly circumvent the controverted election process” (para. 48). Yet Justice Karakatsanis reasons that public policy requires Mr. Anglin’s claim to be struck on the basis that it “prompts an inquiry into the validity of election results” and “risks impugning the integrity of election results, outside the statutory scheme the Legislature has adopted for contesting election results” (paras. 172 and 184). These are materially the same concerns. However, collateral attack imposes a targeted inquiry that has been narrowed by the jurisprudence to focus on “the order itself and its enforceability” (Moreau J.’s reasons, at para. 44, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; see also Moreau J.’s reasons, at paras. 31-35). Resort to free-standing public policy would permit a judge to deploy those same considerations to arrive at a contrary conclusion without the doctrinal constraints that govern collateral attack.

139The same inconsistency arises with respect to implied statutory exclusion. Justice Moreau concludes that the Election Act, R.S.A. 2000, c. E-1, does not impliedly exclude Mr. Anglin’s claim, after applying a framework for that analysis set out in Hopkins v. Kay, 2015 ONCA 112, 124 O.R. (3d) 481 (see also Pleau (Litigation Guardian of) v. Canada (Attorney General), 1999 NSCA 159, 182 D.L.R. (4th) 373). Stringent criteria for assessing implied statutory exclusions reflect the presumption that the legislature does not intend to abrogate common law rights absent clear indication (see Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at para. 85). Justice Karakatsanis’s analysis circumvents these criteria to hold nonetheless that, “[w]here the legislature has enacted a comprehensive code to evaluate a specific kind of alleged wrongdoing (here, improperly influenced voting), it is contrary to public policy for courts to evaluate that same kind of allegation in a private tort action” (para. 187). That reasoning, in effect, reintroduces through public policy an implied exclusion analysis that is untethered from the governing presumption or doctrinal criteria intended to give it effect.

140A similar inconsistency arises regarding abuse of process. Justice Moreau rejects the argument that Mr. Anglin’s claim is an improper challenge “to the validity of an election [that] necessarily entails a challenge to the composition of the Legislative Assembly, creating uncertainty that frustrates the democratic will of the electorate” (para. 47). To conclude that the claim is an abuse of process on the basis that it challenges the Legislature’s composition would, as Justice Moreau explains, conflict with her earlier determinations that it does not challenge the fairness or the outcome of the election and that it does not impermissibly circumvent the controverted election process. Yet Justice Karakatsanis would strike the loss of chance damages claim because it “risks undermining the validity of an election in the eyes of the public, as well as the legitimacy of the winners” and may call “into question the authority of the Legislature” (para. 188). Again, the same underlying concerns reappear, but detached from the doctrinal frameworks that should govern where they justify striking a claim.

141I do not suggest that these concerns are irrelevant. Rather, the common law has incrementally and purposefully developed doctrines to address them, each with its own limiting principles to structure when and how such concerns may justify denying relief. Public policy should not be introduced as a residual basis on which to strike a claim whenever the application of established doctrines does not justify striking it. Resort to an unbounded public policy discretion risks circumventing the limits and analytical discipline those doctrines impose.

C. Inconsistency with the Legislature’s Choice to Provide Only a Limited Statutory Immunity

142My colleague’s proposed public policy grounds are also difficult to reconcile with the Legislature’s own policy choice to permit private claims against a chief electoral officer where they allege bad faith (Election Act, s. 5.1(1)).

143As Justice Moreau explains, the Legislature has provided the chief electoral officer only a limited immunity in order to “strengthe[n] the accountability of public officers and provid[e] relief for victims of tortious conduct” (para. 69). In doing so, it has contemplated allowing claims against election officials to proceed notwithstanding their potential repercussions on matters that fall under the chief electoral officer’s purview, including the running of elections. Claims alleging bad faith may well include allegations that could call into question the fairness of an election or that “undermin[e] the validity of [the] election in the eyes of the public, as well as the legitimacy of the winners” (Karakatsanis J.’s reasons, at para. 188). Where the Legislature has deliberately preserved liability for bad faith conduct, it is the alleged misconduct and not the existence of a civil claim that gives rise to any resulting public concern.

144Put otherwise, the Legislature has chosen what types of claims it views as necessary to preclude: those that lack allegations of bad faith. To hold that judicial consideration of public policy warrants excluding an additional type of claim would, in effect, expand the chief electoral officer’s statutory immunity. Yet our role in this regard is to give effect to legislative intent, not to substitute a policy preference as to what we think necessary to preserve public confidence in the electoral system.

III. Conclusion

145The common law develops incrementally, in response to concrete disputes and on the basis of full argument and developed records. In my view, respect for that method of development, and for the courts’ institutional role and capacity, cautions us against addressing, on this appeal, whether loss of chance damages should be available in the electoral context.

The reasons of Wagner C.J. and Karakatsanis and Martin JJ. were delivered by

Karakatsanis J. —

146I agree with Justice Moreau that an unsuccessful election candidate may bring a civil claim against an elections officer for the tort of misfeasance in public office. The Court of Appeal was right to overturn the motion judge’s decision to strike Joseph Anglin’s entire action and reinstate his claims for misfeasance in public office and trespass to chattels. Although these claims may proceed, I disagree that loss of chance damages will be available if the plaintiff is successful at trial. The claim for damages “for the loss of a chance of being re-elected” must be struck (amended statement of claim (reproduced in A.R., vol. II, at pp. 10-15), at para. 18).

147A range of remedies are available to a plaintiff who establishes misfeasance in public office. These include special, general, and punitive damages (see E. Chamberlain, Misfeasance in a Public Office (2016), at pp. 66-67 and 164-69). Mr. Anglin seeks all three types of damages in his claim, including damages for signs taken and destroyed, time spent replacing signs, harm to his reputation, self-esteem, and emotional well-being, as well as significant punitive damages. These are all legitimate heads of damages to compensate a successful plaintiff in the tort of misfeasance in public office, assuming the applicable legal tests are met.

148But Mr. Anglin also seeks damages for the loss of chance of being re-elected, and specifically $400,000 for the salary he would have earned over four years 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.

149And even if causation and valuation difficulties could be met, there are strong policy reasons for striking this head of damages. Loss of chance claims indirectly prompt an inquiry into the validity of election results. Years after the fact, a judge would have to evaluate the probability that a particular candidate would have won an election had tortious conduct not occurred. Necessarily, a court will have to conclude that the candidate who won the election may owe their victory in part to unlawful conduct. This could cast doubt on the legitimacy of all actions taken by that victor in the legislative assembly and undermine public trust in both the electoral process and the institutions that elections are meant to uphold. It would also conflict with the legislature’s directive for challenges to the validity of election results to take place promptly within the controverted election provisions of the Election Act, R.S.A. 2000, c. E-1.

150I would allow the appeal in part. Mr. Anglin’s claim against Glen Resler, the Chief Electoral Officer, should proceed on the merits, but without the possibility of recovery for loss of chance damages.

I. The Parties Squarely Raised Loss of Chance Damages Before This Court

151The availability of loss of chance damages is properly before this Court on this appeal. Both parties litigated this specific issue as part of the motion to strike Mr. Anglin’s claim. Justice Rowe says I am wrong to consider loss of chance damages “since no party made submissions on the issue” (para. 104). With respect, this is incorrect. This Court was specifically asked to strike the claim for loss of chance damages.

152The very first paragraph of Mr. Resler’s factum reads:

This case is about the integrity of the Canadian electoral system. The question before the Court is whether an unsuccessful election candidate may bring a private action against an election officer for the “loss of chance” to be elected. [Emphasis added.]

Throughout their factums, both parties discuss the test for the availability of loss of chance damages, and argue whether such damages are available in this case (see, e.g., A.F., at para. 61, fn. 88 (on loss of chance doctrine), and at paras. 40, 57-59, 74 and 76 (on public policy); R.F., at paras. 5-8, fns. 1-2, and at paras. 103-4). During the hearing before this Court, counsel for Mr. Resler accepted that there is a difference between the availability of loss of chance damages specifically and the viability of a misfeasance claim writ large. And much of the Chief Electoral Officer’s oral argument focused on the inappropriateness of loss of chance damages (transcript, at pp. 2-3, 15, 20-21 and 33). Counsel for Mr. Anglin argued that this Court should not consider the availability of loss of chance damages, but that if we find such damages are unavailable, we need not strike his entire claim (pp. 56-57).

153My colleague suggests that I am raising a new issue on this appeal. But a genuinely new issue exists only when it is “legally and factually distinct from the grounds of appeal raised by the parties” — or in other words, totally removed from the issues as framed by the parties (R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at paras. 30-35). The viability of a particular head of damage listed in a claim is obviously not legally or factually distinct from a motion to strike that claim. On motions to strike, courts are tasked with assessing whether a part of or the entirety of a claim should be struck, assuming the facts pleaded to be true. This is not an exercise that requires a full record. And I note that the Court is not restricted to the specific arguments raised by the parties to answer the issues properly before it (Uber Technologies Inc. v. Heller, 2020 SCC 16, [2020] 2 S.C.R. 118, at para. 106, per Brown J.).

II. The Availability of Loss of Chance Damages

154When a plaintiff seeks to recover damages for being wrongfully deprived of an opportunity, they may be entitled to loss of chance damages. Such damages aim to compensate a loss of chance at receiving a benefit or avoiding a loss involve an inquiry into what would have happened in the future if something had not happened in the past (Laferrière v. Lawson, 1991 87 (SCC), [1991] 1 S.C.R. 541, at pp. 559-60; see, generally, S. M. Waddams and P. Healy, The Law of Damages (loose-leaf), at § 13:4).

155In this way, loss of chance damages provide compensation for “known unknowns” (S. Schnobel and J. Skillen, “Known unknowns: Loss of a chance and intractable connections”, in A. J. Bell and J. McCunn, eds., Uncertainty in Comparative Law and Legal History: Known Unknowns (2025), 128). In tort law, a known unknown refers to a situation where the fact‑finder knows that a defendant’s wrongful conduct may have affected the outcome, but cannot make causation findings on the balance of probabilities. Loss of chance damages, in this context, allow the court to use the percentage likelihood a chance would have materialized to value what was lost (Laferrière, at p. 560).

156But known unknowns exist along a spectrum, ranging from manageable and quantifiable uncertainties to complex ones that are difficult or impossible to reliably measure. And where a case falls on this spectrum impacts the availability of loss of chance damages.

157The common law first recognized loss of chance damages in contract law. Courts have long accepted that, when a wrongdoer deprives a plaintiff’s chance to reap a benefit because of a breach of contract, recovery is available even when damages are difficult to estimate or assess (Webb & Knapp (Canada) Limited v. City of Edmonton, 1970 173 (SCC), [1970] S.C.R. 588, at p. 601; see also Kinkel v. Hyman, 1939 7 (SCC), [1939] S.C.R. 364; Chaplin v. Hicks, [1911] 2 K.B. 786).

158These principles were eventually imported into tort law for recovery in lawyer negligence cases. When a plaintiff’s chance to benefit or avoid a loss could have materialized, but for their lawyer’s negligence, courts agreed that the plaintiff too should be able to recover loss of chance damages (see, e.g., Kitchen v. Royal Air Forces Association, [1958] 2 All E.R. 241 (C.A.); Allied Maples Group Ltd. v. Simmons & Simmons, [1995] 4 All E.R. 907 (C.A.); see also Folland v. Reardon (2005), 2005 1403 (ON CA), 74 O.R. (3d) 688 (C.A.), at paras. 73 and 76; Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP, 2017 ONCA 544, 41 C.C.L.T. (4th) 177, at para. 263).

159Similar logic led to loss of chance damages becoming available in other torts cases involving pure economic loss (see, e.g., Spring v. Guardian Assurance Plc., [1995] 2 A.C. 296 (H.L.); see also J. Edelman, McGregor on Damages (22nd ed. 2024), at paras. 11-043 to 11-047).

160For torts where harm is not purely economic, the availability of loss of chance damages remains “the subject of considerable controversy” (Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, at para. 37; see also Laferrière, at pp. 600-601; Folland, at para. 72; Trillium Motor World, at para. 261; Schnobel and Skillen, at p. 132). Much of this controversy surrounds the uncertainty of establishing the causation required to support this type of damages claim and the practical difficulties relating to the valuation of one’s loss of chance.

161Causation becomes tricky in loss of chance cases in tort law because of the inherent uncertainty that characterizes the causal link between a defendant’s tortious conduct and the plaintiff’s lost chance of a better outcome. A plaintiff must prove that the lost chance was “real and significant”, rather than speculative. But this causes tensions with the traditional tort law focus on proving the defendant caused the plaintiff’s final injury (see, generally, 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, [2020] 3 S.C.R. 504, at para. 44). Loss of chance shifts the focus to proving that the defendant deprived the plaintiff of a percentage chance of a better outcome (see J. G. Fleming, “Probabilistic Causation in Tort Law” (1989), 68 Can. Bar Rev. 661, at pp. 661-62; see also N. Acharya, “No More Chances for Lost Chances: A Weinribian Response to Weinrib” (2019), 12 McGill J.L. & Health 205, at pp. 207-14). Loss of chance becomes “difficult to reconcile with our once and for all approach to establishing liability and assessing damage” (Gregg v. Scott, [2005] UKHL 2, [2005] 2 A.C. 176, at para. 212). And the loss of chance analysis risks hiding “a break in the causal link” (Laferrière, at p. 591).

162For torts where the harm is not purely economic, pre-existing conditions and circumstances also contribute to causal uncertainties. Such conditions and circumstances can affect the likelihood an opportunity would have materialized (see, generally, J. H. King, Jr., “Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences” (1981), 90 Yale L.J. 1353; Schnobel and Skillen, at p. 132). Because they may produce or predetermine part or all of the harm for which a plaintiff seeks redress, “courts face the increasingly difficult tasks of sorting out the various preexisting conditions and tortious acts that may affect the value of a particular interest, and of allocating responsibility among them” (King, at p. 1354).

163These complexities exist on a spectrum depending on how easily the loss of chance can be understood in probabilistic terms. When there is less room for pre-existing circumstances or conditions to affect one’s chance to reap a benefit, the damage can be more easily understood in probabilistic terms and calculated. In a case involving a lost chance to benefit from a lottery ticket, for example, the chances of winning are a pure question of probability. Contrast this with the chance of benefiting from a medical treatment, where many other factors may influence one’s loss of chance (Laferrière, at p. 601).

164Difficulties relating to pre-existing conditions and circumstances led to this Court’s rejection of loss of chance damages in medical negligence cases. In Laferrière, Gonthier J. was “not prepared to conclude that particular medical conditions should be treated for purposes of causation as the equivalent of diffuse elements of pure chance, analogous to the non-specific factors of fate or fortune which influence the outcome of a lottery” (p. 605).¹ This is because, in medical contexts, “faults of omission or commission must be considered alongside other identifiable causal factors in determining that which has produced the particular result in the form of sickness or death” (pp. 605-6). In this context, the value of one’s lost chance was rife with uncertainty and not easily calculated.

165This is not to say that loss of chance damages should only be available in tort where the loss of chance is a pure question of probability. But difficulties relating to causation and valuation may justify a judge’s decision to refuse these damages in certain cases.

166To recover damages for loss of chance in tort law, a plaintiff must prove that:

(1) but for the defendant’s tortious conduct, the plaintiff would have had a chance to obtain a benefit or avoid a loss;

(2) the lost chance was real and significant, and not merely speculative;

(3) the chance depended on someone or something other than the plaintiff themselves; and

(4) the lost chance had practical value.

(Folland, at para. 73, and cited authorities; see also Berry v. Pulley, 2015 ONCA 449, 335 O.A.C. 176, at para. 70; Trillium Motor World, at para. 270; 644036 Alberta Ltd. v. Kay McVey Smith & Carlstrom LLP, 2018 ABCA 236, 71 Alta. L.R. (6th) 106).

167When these four criteria are met, a judge will exercise their discretion to award damages “equal to the probability of securing the lost benefit (or avoiding the loss) multiplied by the value of the lost benefit (or the loss sustained)” (Berry, at para. 72, citing Wong v. 407527 Ontario Ltd.(1999), 1999 3788 (ON CA), 179 D.L.R. (4th) 38 (Ont. C.A.), at para. 27). To use an example, if the chance of winning a lottery would have been one percent, then damages are assessed at one percent of what could have been won.

III. The Loss of Chance Damages Should Be Struck

A. Courts Should Strike Damages Claims That Are Doomed to Fail

168On a motion to strike, the court assumes the facts as pleaded in the statement of claim are true, and asks whether it is “plain and obvious” that part or all of a claim is doomed to fail (Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 20; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420, at para. 14).

169As counsel for Mr. Anglin acknowledged, this appears to be the first case ever where an election candidate has sought damages for their loss of chance of being elected (transcript, at pp. 65-66). Novel but arguable claims should generally be allowed to proceed to trial (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 21). But courts should not hesitate to strike novel claims that are doomed to fail. As this Court articulated in Babstock, “[i]t is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings” (para. 19 (emphasis in original)). Striking doomed claims early promotes access to justice, as it frees up scarce judicial resources for cases with merit.

170Nor do I accept that it is wrong to consider the availability of loss of chance damages in this appeal, given the “thinness of the record” and that this is “an unsettled question” (Rowe J.’s reasons, at paras. 126-27). In motions to strike, there is always a “thin” record consisting of only the pleadings. Yet “it is not uncommon for courts to resolve complex question of law and policy” to determine whether striking is appropriate (Babstock, at para. 19). When judges are confident that a claim is doomed to fail, it is their responsibility to strike it (para. 18).

171Justice Moreau proposes to leave whether loss of chance damages are available to the trial judge. Mr. Anglin’s action commenced over nine years ago, and relates to an election from 2015. It costs all parties — and the public — for this Court to leave this significant question unanswered. So unlike my colleagues in the majority, I would answer it now.

172I conclude that the loss of chance damages claim is doomed to fail. Doctrinal and policy reasons weigh overwhelmingly against awarding damages of this nature in electoral contexts. Doctrinally, the difficulties in showing a causal link between misfeasance and an election defeat makes it inappropriate to award these damages in an election context. And as for policy, because a claim for loss of chance damages prompts an inquiry into the validity of election results, the availability of these damages would risk undermining public trust in elections and government more broadly. I add that elected office is not a personal entitlement, like a breach of contract, that should be naturally measured in monetary terms or reduced to compensable probabilities.

B. The Doctrinal Difficulties of Causation in Election Loss of Chance Cases

173To begin, there are causation-related challenges that make calculating one’s chance of winning an election difficult — if not impossible — to determine. Where an allegation in a statement of claim is incapable of proof, the court need not accept that allegation as true on a motion to strike that allegation (Operation Dismantle v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441, at p. 455).

174These challenges are more easily understood when one situates the loss of chance of being elected on the spectrum of “known unknowns” that informs the availability of loss of chance damages more generally. On one end of the spectrum, loss of chance damages are readily available. This occurs in cases involving breach of contract or lawyer negligence, which involve relatively straightforward determinations on the chance that a plaintiff would have received an economic benefit or avoided a loss. On the other end of the spectrum, loss of chance damages are not available. In medical malpractice cases, for example, courts cannot isolate the causal link between conduct and a lost opportunity with enough certainty.

175As in medical malpractice cases, the calculation of a plaintiff’s loss of chance to win an election is full of uncertainty. In such a claim, opinion polls and past results become the primary indicators of someone’s chance of winning an election.

176But polls are unpredictable, dynamic, and constantly changing. They rely on different sample sizes and assumptions (see, generally, C. Prosser and J. Mellon, “The Twilight of the Polls? A Review of Trends in Polling Accuracy and the Causes of Polling Misses” (2018), 53 Government and Opposition 757). Voters are volatile: how they react to events in an election will not always be predictable or linear (see E. Fieldhouse et al., Electoral Shocks: The Volatile Voter in a Turbulent World (2020), at pp. 5-6; see, generally, R. Embree and D. Westlake, “New Voters and Old Voters: Understanding Volatility in Quebecers’ Federal Election Votes between 2008 and 2019” (2023), 56 C.J.P.S. 49). And history shows it is not unusual for a political party or candidate to poll at significantly different levels of support over the course of an election campaign. In these cases, it will be impossible to disentangle exactly why polls show support changing over time, making them unhelpful evidence for assessing loss of chance, even if accuracy could be assumed or proven to a sufficient degree of certainty.

177Past election results are not always an accurate predictor either. Sometimes, voter preferences shift unexpectedly, and candidates win ridings where their parties historically had never been competitive. This phenomenon is apparent in the provincial election that occurred in this case, where the New Democratic Party of Alberta won a majority of seats and formed government for the first time in Alberta’s history.

178And aside from the uncertainties in using polling data and past results to understand voter trends at the time votes were cast, a judge will face difficulties in establishing a “but for” link between a defendant’s conduct and voting results. These inherent uncertainties make it impossible to determine how voters would have voted with enough certainty for a court to make necessary factual findings. Many people vote in elections, each motivated by many factors. Even armed with evidence of opinion polls and past results, courts cannot be certain about the chance someone would have won an election had certain conduct not occurred. The inability of courts to predict election results is addressed, generally, in Bost v. Illinois State Bd. of Elections, 607 U.S. 1 (2026), at pp. 7-9. In my view, any inquiry into the loss of one’s electoral chances is speculative and will not meet the second criterion for loss of chance damages.

C. Public Policy Counsels Against Loss of Chance Damages in Elections Cases

179Even if the causation challenges could be overcome — which I doubt — there are public policy reasons not to allow loss of chance damages in an electoral context.

180I agree with Justice Moreau that the doctrines of collateral attack and abuse of process, which focus on the integrity of the judicial system, do not apply to block the causes of action in this case. But courts may consider a broader range of interests when considering whether certain claims for tort damages are precluded by public policy.

181Public policy plays a narrow but important role in Canadian tort damages law. For example, a successful plaintiff cannot recover for wage losses while incarcerated, as this would undermine the consequences of criminal sanctions (British Columbia v. Zastowny, 2008 SCC 4, [2008] 1 S.C.R. 27, at paras. 20-30). And this Court prioritized “policy factors” of “assessability, uniformity and predictability” over the pursuit of complete compensation in setting a dollar cap on non-pecuniary damages (Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, at pp. 260-65; see also ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, at paras. 106-11). More generally, no tort plaintiff can recover damages for losses that they could have avoided through reasonable diligence. This doctrine of mitigation exists in part to prevent economic waste, a public policy objective (see, e.g., British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38, [2004] 2 S.C.R. 74, at para. 176, per LeBel J., dissenting; Waddams and Healy, at § 15:4).

182Justice Rowe claims that public policy is not available as “free-standing” ground for rejecting tort claims (para. 129). He suggests that courts can only consider public policy concerns if they fall within “established doctrines” (para. 129). I disagree. Courts may consider issues of public policy “on their own motion” as long as the issues raised by the parties remain the focus (Uber Technologies, at para. 106, per Brown J., citing Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612, at para. 59). As Justice McLachlin noted in Hall v. Hebert, 1993 141 (SCC), [1993] 2 S.C.R. 159, “[w]hether we describe the principle under which judges are allowed to deny recovery to a plaintiff by an old-fashioned Latin name or by the currently fashionable concept of ‘public policy’, the underlying problem remains the same” (p. 169 (emphasis added)).

183What matters on a principled basis is whether public policy concerns are sufficiently strong to outweigh a successful plaintiff’s claim to damages. That is the question I now turn to.

184Public policy counsels against loss of chance damages here because a judge’s assessment of loss of chance in electoral contexts prompts an inquiry into the probability that a particular candidate would have won an election, but for the defendant’s tortious conduct. Such an inquiry risks impugning the integrity of election results, outside the statutory scheme the Legislature has adopted for contesting elections. It also risks undermining public confidence in key democratic institutions.

185These risks are readily apparent when one considers the application of the criteria governing the availability of loss of chance damages to this case. In applying the first criterion, a trial judge would need to assess whether Mr. Anglin has shown that but for Mr. Resler’s conduct, he would have had a chance to win the election. This prompts an evaluation as to whether certain votes would have been different had the alleged misconduct not occurred. Second, the judge would need to determine whether Mr. Anglin’s lost chance was sufficiently real and significant to rise above mere speculation. A judge will need to address whether Mr. Anglin was likely to win the election or not. Third, the judge will need to be satisfied that Mr. Anglin’s lost chance to win the election depended on someone or something other than Mr. Anglin himself. Finally, a judge will also need to be satisfied the lost chance had some practical value. This requires a judge to put a dollar value on public service, and rule on Mr. Anglin’s potential entitlement to profit from his public service.

186It is significant that a judge’s application of these criteria in an electoral case would require them to assess whether some votes were not properly cast because of a defendant’s wrongful conduct. Alberta’s legislature has enacted a comprehensive and exclusive scheme for assessing challenges to the validity of election results in the controverted election provisions in the Election Act. Like all contested election schemes, this statute strikes a delicate balance between many competing values, including promptness and finality (see, generally, Opitz v. Wrzesnewskyj, 2012 SCC 55, [2012] 3 S.C.R. 76, at para. 44). The Election Act contains a series of short deadlines, clearly demonstrating an intent to resolve any challenges to the legitimacy of an election outcome early in the life of the subsequent Legislature (see, e.g., ss. 185(1)(b), 188(1), 190, 191(1)(a) and 193; see also s. 151(2)).

187I accept that Mr. Anglin’s action does not constitute a collateral attack because he does not seek to invalidate the results of the election. But assessing loss of chance here would require a trial judge to adjudicate the same question that the controverted election regime exists to answer: was the result of an election compromised by misconduct? Where the legislature has enacted a comprehensive code to evaluate a specific kind of alleged wrongdoing (here, improperly influenced voting), it is contrary to public policy for courts to evaluate that same kind of allegation in a private tort action (see, e.g., Seneca College of Applied Arts and Technology v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181, at pp. 194-95). Requiring claims that in substance challenge the lawfulness of election outcomes to proceed through the statutory process respects legislative intent, the separation of powers, and the Legislature’s prerogatives to determine the validity of its own membership.

188Considering public policy more broadly, a loss of electoral chance inquiry risks undermining the validity of an election in the eyes of the public, as well as the legitimacy of the winners and their right to represent their constituencies. If loss of chance damages were available in tort claims arising out of elections, courts may have to rule years after an election that one or more members of the legislative assembly were elected in a process marred by unlawful conduct. Meanwhile, those members may have debated, introduced, and voted on legislation, potentially casting critical votes in favour or against passing new laws. Casting the legitimacy of all these actions into doubt, long after the election, without having invoked the available legal recourse to challenge the outcome of that election, would damage the public’s perception of their government. I agree with the intervener the Chief Electoral Officer of the Northwest Territories that there is a real risk that an entire government’s legitimacy could be called into question where one or more riding results are challenged after an election with a close result, or in a territory with a non-partisan consensus model of governance (I.F., at paras. 10 and 15; see also A.F., at para. 76). Calling into question the authority of the Legislature to legislate undermines the rule of law and is contrary to public policy.

189In this way, the availability of these damages risks eroding public trust in the democratic system and the legislature generally. Such risks are especially dangerous considering the uncertainties surrounding the actual calculations of the chances in this case. And there is no good reason for a judge to wade into these thorny questions when other damages are available to a plaintiff establishing the tort of misfeasance.

190Finally, I reject the suggestion that s. 5.1(1) of the Election Act supports allowing loss of chance damages. While I agree with Justice Moreau that this provision “leaves a door open to civil proceedings where bad faith is alleged” (para. 58), I fail to see how a limited statutory immunity clause could affirmatively endorse the availability of any particular head of damages. Unlike Justice Rowe, I do not read a grant of immunity as an invitation to find liability.

IV. Conclusion

191Allowing loss of chance damages in claims arising from allegations of electoral misconduct would require courts to engage with questions of fact that are very difficult or impossible to answer with sufficient certainty. And even if they could be answered, those answers would impugn the integrity of the electoral system in the eyes of the public, outside the exclusive legal vehicle the Legislature has designated for such challenges. I would strike this head of damages now.

192I would allow the appeal in part. Although I agree with Justice Moreau that the claims for misfeasance in public office and trespass to chattels may continue on the merits, I am of the view that the loss of chance damages, set out in para. 18 of the amended statement of claim, are unavailable for the loss of an election, and should be struck.

Appeal dismissed with costs, Wagner C.J. and Karakatsanis and Martin JJ. dissenting in part.

Solicitors for the appellant: Shores Jardine, Edmonton; Lake Law, Edmonton.

Solicitors for the respondent: McCuaig Desrochers, Edmonton; Constitutional Law Institute of Canada, Toronto.

Solicitor for the intervener Attorney General of Ontario: Attorney General of Ontario, Crown Law Office — Civil, Toronto.

Solicitor for the intervener Attorney General of British Columbia: Attorney General of British Columbia, Legal Services Branch, Vancouver.

Solicitor for the intervener Chief Electoral Officer of Quebec: Élections Québec, Québec.

Solicitors for the intervener Chief Electoral Officer of the Northwest Territories: Conway Baxter Wilson, Ottawa.

Footnotes

1. 1Although Laferrière is a civil law case out of Quebec, its conclusion on this point has been cited by appellate courts across the country (see, e.g., Folland, at para. 89; Peppler Estate v. Lee, 2020 ABCA 282, 11 Alta. L.R. (7th) 215, at paras. 174 and 182; Henderson v. Hagbloom, 2003 SKCA 40, 232 Sask. R. 81, at paras. 122-29; Michaud v. PMM Assurance & Services Inc., 2005 NBCA 66, 289 N.B.R. (2d) 310, at para. 18; De Cotiis v. McLellan, 2009 BCCA 596, 279 B.C.A.C. 176, at para. 33). The underlying logic rings true under either legal system.