Legalities and Niceties Following the Provincial Election

This article was written by Robert Reynolds, K.C. - Senior Counsel and former Clerk and Law Clerk of the Alberta Legislative Assembly.

With the election on May 29th, people may think that their newly elected MLA will assume the position right away.  Not quite.  Under section 1(2) of the Legislative Assembly Act, the person receiving the most votes, has to be declared elected under section 138 of the Election Act.  Most might think that announcement would come election night however, for the purposes of the various Acts, the results are announced at the “official count” which occurs on the 10th day following the election. 

For this provincial election, the date for the official count is June 8th.  Following the official count announcement, there is then an 8-day period during which an application can be made to the Court of King’s Bench for a judicial recount. That 8-day period expires at the end of the day on June 16th.  Accordingly, if there is not an application for a recount, the person with the most votes becomes a Member of the Legislative Assembly on June 17, 2023.

If there is a recount, then (as one can imagine) the dates for when a person becomes a Member are pushed back. The applicable dates depend upon whether the person relies on the Court of King’s Bench decision or appeals to the Alberta Court of Appeal. While judicial recounts do not often happen in Alberta, appeals to the Court of Appeal are even rarer. 

However, there was a 2005 decision of the Court of Appeal in Lukaszuk v. Kibermanis (2005 ABCA 26 (CanLII)) which saw Thomas Lukaszuk ultimately elected even though he lost at the polls by a count of 5017 votes to 5014.  Ultimately, ballots that were deemed spoiled were declared countable.

The person who becomes a Member does not have to be sworn in right away.  However, under the Legislative Assembly Act, Members have to take the oath prior to sitting in the Assembly. 

Incoming Members are paid back to election day.  Outgoing Members are paid up to the day preceding election day.  Members do not receive a pension when they leave the Assembly.

The timelines applying to Members do not affect when Cabinet Ministers can be sworn in.  The Executive (the Ministry) is a different branch of government from the legislative branch, so the rules regarding when Members become Members, do not apply to Ministers. 

Of course, Cabinet Ministers will invariably be Members of the Assembly but to reiterate, they do not have to be Members officially to be appointed to Cabinet. Cabinet could be sworn in before June 17th.

One last point; the Assembly cannot sit without a Speaker.  Under the Legislative Assembly Act, the person who is Speaker when the Legislature is dissolved, remains Speaker until the day before the Legislature comes back in session.  The Assembly cannot, however, sit without a Speaker. Accordingly, the first business of the Assembly when it reconvenes will be to elect a Speaker.

In fact, on the day appointed for the start of the Legislature, a Minister (usually the Minister of Justice) reads a message from the Lieutenant Governor indicating that they will not attend the Assembly until after a Speaker is chosen.  The election of the Speaker is conducted by secret ballot. Once that is achieved, the Lieutenant Governor may deliver the Speech from the Throne. 

In Alberta, the Speech from the Throne is usually delivered the day after the Speaker is elected.