Application to set aside an election
122.1(1)Within thirty days after an election writ has been returned under section 96, the following may apply to a judge of The Court of King’s Bench of New Brunswick to have the election of a member set aside:
(a)
a person who had a right to vote at the election in the relevant electoral district, or
(b)
a person who was a candidate for election in the relevant electoral district.
122.1(2)An application under subsection (1) may only be brought on the following grounds:
(a)
the member was not eligible to be a candidate for election to the Legislative Assembly;
(b)
the electoral procedures set out in this Act and the regulations were not properly followed in a manner that may have altered the outcome of the election;
(c)
the member or someone acting on the member’s behalf contravened or failed to comply with a provision of this Act that is listed in Column I of Schedule B in a manner that may have altered the outcome of the election;
(d)
the member or someone acting on the member’s behalf contravened or failed to comply with subsection 121(2) or section 377 of the
Criminal Code (Canada) in a manner that may have altered the outcome of the election;
(e)
the member or someone acting on the member’s behalf contravened or failed to comply with a provision of this Act that is listed in Column I of Schedule B and, having regard to the nature of the contravention or failure complained of and the degree of the member’s personal involvement in or responsibility for it, the contravention or failure is sufficiently serious that the member’s election ought to be set aside; or
(f)
the member or someone acting on the member’s behalf contravened or failed to comply with subsection 121(2) or section 377 of the
Criminal Code (Canada) and, having regard to the nature of the contravention or failure complained of and the degree of the member’s personal involvement in or responsibility for it, the contravention or failure is sufficiently serious that the member’s election ought to be set aside.
122.1(3)A person who brings an application under this section shall notify the Chief Electoral Officer in writing as soon as practicable that he or she has done so.
122.1(4)After hearing an application under this section, the judge may
(a)
dismiss the application, or
(b)
grant the application and make an order setting aside the member’s election and declaring the member’s seat vacant.
122.1(5)A judge shall dispose of an application under this section within six months after the election writ has been returned under section 96 or as soon as practicable after that six month period.
122.1(6)An order under paragraph (4)(
b) shall come into effect when the period prescribed by law for appealing the order has expired without the order having been appealed.
122.1(7)If an order under paragraph (4)(
b) is appealed within the period prescribed by law for appealing the order, the appeal stays the operation of the order pending the outcome of the appeal.
122.1(8)If the Court of Appeal dismisses an appeal of an order under paragraph (4)(
b) or makes such an order in the first instance, the decision of the Court of Appeal shall come into effect when the period prescribed by law for appealing the decision has expired without the decision having been appealed.
122.1(9)If a decision of the Court of Appeal referred to in subsection (8) is appealed within the period prescribed by law for appealing the decision, the appeal stays the operation of the decision pending the outcome of the appeal.
122.1(10)An application under this section or the appeal of a decision of a judge under this section shall be conducted in accordance with the rules prescribed by regulation.
2005, c.11, s.3; 2023, c.17, s.64