In reasons released January 5, 2017, Justice Rogers of the BC Supreme Court found that a failure by a School District to hold a second advance poll in a school trustee by-election did not materially affect the outcome of the election. Section 155(3) of the Local Government Act, which applies to school trustee elections, requires that a Court must not declare an election invalid due to an irregularity if the Court is satisfied that the election was conducted in good faith and in accordance with the principles of the Act, and that the irregularity did not materially affect the result of the election. In this instance, the Petitioner conceded in her submissions that the election had been conducted in good faith.
Once Ms. Duperron, an unsuccessful candidate in the election, established that there had been an error or irregularity, the burden of proving that the irregularity had no material effect on the outcome fell to the School District.
The School District presented evidence of the percentage of electors who had voted in prior advance polls both in provincial general elections and in previous municipal elections for the Town of Osoyoos. In provincial elections, the highest voter turnout at advance polls was in 2013, at 20.34%. For the Town of Osoyoos, advance poll voter turnout was 23% and 19% in the two previous general municipal elections. There were no previous School Trustee election results available for comparison. During the by-election in question, 137 (25%) of the votes cast were cast at the advance poll. Based on those numbers, the court accepted that it was unlikely that a significant number of voters would have attended a second advance poll.
The School District also pointed to the actual results of the election. In the advance poll the winning candidate received 60% of the votes while the Petitioner and the third candidate each received 20% of the votes. On general voting day, the winning candidate received 40% of the votes, the Petitioner received 44% of the votes and the third place candidate received 16% of the votes. The court accepted that for the Petitioner to overcome her deficit in votes (following the advance poll), and assuming each candidate would have received the same percentage of votes in a second advance poll as he or she received on general voting day, more than 1000 additional votes would have had to be cast. As only 549 votes were cast in total, the court accepted that this level of voter turnout at a second advance poll was unlikely.
The Petitioner argued unsuccessfully that the School District’s position was speculative at best and that it was possible that all the supporters for the winning candidate had already voted in which case the petitioner or the third candidate would have received a higher percentage of votes at the second advance poll, possibly changing the outcome of the election. While the Court considered this position, it found that this possibility was too speculative and that it was not substantiated by the Petitioner’s evidence or by the numbers.
The reasons for judgment in this case may offer guidance in future cases where irregularities in election proceedings lead to a challenge to the election results.