Summaries of 2008 Election Cases

Patterson v. District of Kent, 2008 BCSC 352

Patterson v. District of Kent disproves the saying that if you throw enough mud against the wall, some of it will stick. The petitioner was unsuccessful in attempting to have a by-election set aside despite raising multiple possible deficiencies in the way the election was conducted.

Her first argument was that the chief election officer performed some of his duties before making his solemn declaration, contrary to section 41(8) of the Local Government Act, RSBC 1996, c. 323 (“Local Government Act”). She stated that the officer had placed advertisements for nominations prior to the date he made his declaration. After examining the evidence, the judge found that even if the officer had arranged for the advertisements before making his solemn declaration, doing so was only an irregularity, and not grounds to invalidate the election.

The petitioner’s second argument was that a change in the date of the election caused confusion. The chief election officer had initially decided to hold no advance voting. He eventually realized his decision was wrong, and instituted advance voting, causing the election date to be pushed back a week. The judge found that a wrong decision that is subsequently corrected is not a ground on which an election can be challenged.

The next argument the petitioner advanced was that the successful candidate’s nomination papers were not properly filled out. According to the Local Government Act, a challenge to a person’s nomination (as opposed to election) must be brought in Provincial Court, and must be brought within 4 days after the close of the nomination period. The petitioner stated she failed to meet these requirements because she could not contact the chief election officer to obtain the nomination documents. The judge declined to decide whether a delay or refusal of an election officer to comply with a request to view nomination documents is sufficient to challenge an election (rather than a nomination). He stated that even if it were a ground to challenge an election, there was not enough evidence to find there was a refusal or delay in this case.

The petitioner also argued that the election should be invalidated because the names of the candidates in the notice of election in one local newspaper were “slightly garbled” and her name was misspelled in another (her first name was listed as “tJen” rather than “Jen”). The judge stated the first error was not relevant because it advertised an election date which did not happen, and the second was only an irregularity.

Another argument advanced by the petitioner was that the winning candidate’s representative for the purposes of ballot counting attended a voting place contrary to section 153(6)(d) of the Local Government Act. The judge found that there was not enough evidence to conclude that the representative had attended the voting place, and even if he had, his presence would only have amounted to an irregularity because there was no evidence the representative attempted to intimidate voters or influence the voting, or intrude on voter privacy. The judge stated that the representative’s “simple presence at the voting area could not have affected the results of the election”.

The petitioner’s final argument was that the cumulative effect of all the alleged violations should result in the election being declared invalid. The judge disagreed, stating that each ground of challenge must be considered on its own. He stated that “one irregularity that is not fatal does not become fatal when it is accompanied by other irregularities, which, taken alone, would be equally harmless.”

Patterson v. District of Kent makes it clear that the court will not overturn an election solely on the grounds that a number of minor irregularities occurred in the way the election was conducted.

Cultus Lake Park Board v. Charles (unreported, October 31, 2008, Chilliwack Registry C6621, B.C. Prov. Ct.)

This case illustrates the importance of complying with the nomination requirements under the Local Government Act. The Deputy Chief Election Officer for the Cultus Lake Park Board asked the court to determine whether the respondent was qualified to be nominated for Commissioner of the Cultus Lake Park Board.

The respondent was a member of the Park Board’s volunteer fire department when he filed his nomination papers. At the time of filing he had not notified the Park Board that he intended to consent to nomination, and he had not requested a leave of absence from his position as a volunteer fire fighter, as required by the Local Government Act. He had not done so because he did not consider himself an employee of the Park Board.

The Deputy Chief Election Officer asked the court to rule on the respondent’s relationship with the Park Board. The judge determined that the respondent was an employee of the Park Board. He did so by applying the common law test for finding an employment relationship. He noted that the Park Board paid him an hourly wage, controlled how he performed his duties, owned all the equipment he used, and deducted income tax, Canada Pension and Employment Insurance from his pay.

As the respondent was an employee, and had failed to give notice of his intention to consent to the nomination, the judge found he was not qualified to be nominated for the election. That he had not worked as a volunteer firefighter since filing his nomination papers did not matter, as the Local Government Act did not give the court any discretion to waive the statutory requirements.

This case illustrates that it is important for candidates who might be considered officers or employees of a regional district or municipality to ensure compliance with all statutory requirements for nomination.

Todd v. Coleridge 2009 BCSC 688

The Court declared the election of Mr. Coleridge invalid and the office held by Mr. Coleridge vacant pursuant to section 145(2) of the Local Government Act. The Court also ordered Mr. Coleridge to pay to the City of White Rock the sum of $20,000.00 toward the expense of a by-election required to fill the vacancy; the City of White Rock was entitled to recover court costs from Mr. Coleridge which the City was required to pay to Mr. Todd, the petitioner, in this case.

The basis of the petition was that Mr. Coleridge had violated section 152(3) of the Local Government Act by using fraudulent means to compel, persuade or otherwise cause a person to vote or refrain from voting for a particular candidate.

The petitioner who sought the Court’s declaration was a candidate for councillor in the 2008 local election for the City of White Rock and was unsuccessful. The facts, admitted by Mr. Coleridge during the trial, was that his wife sent an email under a pseudonym that he had earlier drafted. Mr. Coleridge discovered the email the day it was sent. The email suggested that Mr. Todd and a number of other candidates were members of a slate of candidates which favoured the development of highrise buildings.

Mr. Coleridge replied to a number of those who responded to the email confirming his agreement with them and adding further information. However, his responses were also sent out under a pseudonym.

Mr. Coleridge was eventually questioned by the media about the source of the “slate email” and when confronted with evidence that his home was the source of the email, he responded by saying that he did not know who the sender was and that he had been a victim of identity theft.

The Court in analyzing its authority to declare the election invalid refered to the Court of Appeal decision Friesen v. Hammell, 1999 BCCA 23, which concluded that the purpose of the legislation was to safeguard the public from fraudulent conduct on the part of or on behalf of a candidate which was of such sufficient import that it influenced the judgment of potential voters. In its analysis, the Court determined that not every type of misrepresentation would fall under “fraudulent means”. However, misrepresentations of material fact, made knowingly or recklessly, which induce potential voters to vote for a party or candidate other than the one the voter would have voted but for the misrepresentation would constitute fraudulent means.

Mr. Coleridge took the position that his deceit was not a material fact as the information in the “slate email” was fair comment. However, the Court concluded that that was the wrong question:

“The question in my view is whether Mr. Coleridge persuaded or caused anyone to vote for him by stating that in his campaign material that he was someone the elector could come to for a straight answer, i.e. that he was someone you could trust. Mr. Coleridge ran on his reputation that he was a candidate who could be counted on to tell the public the truth. Rather than telling the truth about what he says is an immaterial fact, Mr. Coleridge participated in the creation of a fictitious couple, and then lied about his knowledge of the couple, and used the couple as support for his platform… Mr. Coleridge displayed a willingness to continue to lie and deceive the public despite being presented with a number of occasions when he could have told the truth. In my opinion, if a candidate puts his character in issue and runs on his integrity and honesty, then his character, including his integrity and honesty, is a material fact.”

Stow v. British Columbia (Attorney General) 2010 BCCA 312

In this case, Mr. Stow was an unsuccessful candidate in the local government election in 2008 for the Town of Gibsons. The controversy arose as a consequence of Mr. Stow’s disclosure statement which was filed late without the $500.00 late filing penalty. Mr. Stow asserted that the legislation did not impose any deadline for the payment of the late filing penalty fee. Under section 92 of the Local Government Act, unless there is a Court order relieving a candidate from an obligation to file a disclosure statement, a candidate must file the disclosure statement before the end of the late filing period otherwise the person is disqualified from being nominated for election to or holding office until after next local general election.

The lower Court dismissed Mr. Stow’s argument on the basis that the legislation must be given a purposive interpretation and if a person was permitted to pay the late filing fee at any time, it would make it very difficult to prepare the mandated list of disqualified persons as required under sections 92.2 and 92.3 of the Local Government Act.

The Court of Appeal agreed and stated that the legislation must be read in its entire context and harmoniously with the scheme and object of the Act. The $500.00 late filing penalty fee must be paid within the extended filing deadline.

Sadler v. Gibsons (Town) 2009 BCSC 138

In this case, the Court was asked to declare an election invalid on the basis that there were a number of violations of the Local Government Act in respect of the conduct of the election, including that counting proceedings were conducted without scrutineers, that a ballot box was opened without a witness, that ballots were placed where persons present could not see them, that invalid ballots were marked void, tally sheets were not placed in the ballot box and lastly, that the chief election officer failed to notify the candidates of the time, date and place of his determination of the official election results as required by section 135 of the Local Government Act.

After reviewing the details of the evidence, the Court concluded that the Town did not violate the provision of the Act in the conduct of the election with the exception of the violation of section 135. However, the Court found that the failure of the chief election officer to notify the candidates of the time, date and place that the official election results would be determined was an oversight that was made in good faith and did not materially affect the outcome of the election.