Election Upheld Despite Failure to Hold Advance Voting Opportunity

The BC Supreme Court recently upheld a school board trustee election, even though only one of the two statutorily-required advance voting opportunities was held for the election. An unsuccessful candidate challenged the election under s.153 of the Local Government Act, which provides that an election may be declared invalid when not conducted in accordance with the LGA. Importantly, with this type of challenge s.155(3) of the LGA provides that an election must not be declared invalid if the court is satisfied the election was conducted in good faith and in accordance with the principles of the LGA and that the irregularity did not materially affect the election results. The complaining candidate conceded, and the Court confirmed, that the failure to hold the second advance poll was an inadvertent mistake and that the election was conducted in good faith and in accordance with the principles of the Act. The only issue to be decided was whether the irregularity had materially affected the outcome.

What is most interesting about this case is the degree to which the Court was willing to speculate on the number of voters who would have voted at a second voting opportunity had one been held and on how those voters would have voted, based on evidence put forward on behalf of the school board. The complaining candidate had received 211 votes (including 27 at the advance voting opportunity), while the winning candidate received 251 votes (83 at the advance voting opportunity). The Court relied on evidence of voter turnout at advance voting opportunities for local elections in 2011 and 2014 to conclude that it was unlikely that many more votes would have been cast at a second advance voting opportunity. The Court also assumed that because the complaining candidate had mounted a vigorous campaign after the advance vote, the candidate’s performance on general voting day was her best possible performance and, therefore, she would not have received a greater vote share at a second advance voting opportunity. The Chief Election Officer had also deposed that her office had not received any complaints of electors being unable to vote due the lack of a second advance voting opportunity. As a result, the Court was satisfied that the failure to hold the second advance voting opportunity did not affect the outcome of the election, in effect concluding that the complaining candidate would not have received 40 more votes than the winning candidate had a second advance voting opportunity been properly held.

While the Court was unwilling to set aside the election, the Court did refuse to order the complaining candidate to pay the school board’s legal costs in the circumstances, as the candidate had good reason to challenge the election.

Duperron v. School District No. 53 (Okanagan Similkameen), 2017 BCSC 20.

Mike Quattrochi & Stefanie Ratjen