Election Results Upheld Despite Irregularities

In Dumont v. Manitoba Metis Federation Inc. (decided in 2004), the Manitoba Court of Appeal allowed an appeal from a trial court decision and restored the results of the election of the president of the Manitoba Metis Federation Inc., despite certain irregularities.

1. Facts

Manitoba Metis Federation Inc. (MMF) was a corporation without share capital subject to the Manitoba Corporations Act.

In March 2003, MMF held an election for the office of president. The final tabulation, after recount, was 3,556 votes for Mr. David Chartrand (representing 50.14% of the votes cast) and 3,536 votes for Mr. Yvon Dumont (49.86%), a margin of victory of 20 votes (or 0.28% of the votes cast).

The losing candidate, Dumont, contested the result in court, succeeding before a judge of the Manitoba Court of Queen's Bench. However, the Manitoba Court of Appeal reversed that decision and upheld the election of Chartrand as president of MMF.

The by-laws of MMF provided that the election of president was to be conducted by a chief electoral officer and local deputy returning officers.

Elections were held in 1986, 1988, 1990, 1993, 1994, 1997, 2000 and 2003, which was the contested election before the court. For the 1994 election, a recently retired judge of the Manitoba Court of Queen's Bench was appointed as chief electoral officer and he in turn retained a deputy chief electoral officer. They continued to serve in those capacities in each ensuing election, including the contested 2003 election.

In the 2003 election:

● the list of electors was augmented by the chief electoral officer rather than additions emanating solely from the local offices in each region;

● additions to the list of electors were permitted on election day where the deputy returning officer was satisfied that the intended voter was eligible and qualified to vote (after hearing any objections from scrutineers for the candidates);

● the advance poll was abandoned; and

● a mail-in ballot system was used in place of the advance poll.

All of these were departures from the terms of MMF's by-law governing elections.

2. Rulings

The issue in the Court of Appeal was not whether these departures from the election by-law took place but only whether the irregularity or non-compliance should result in the court setting aside the election.

The court has a discretion under the Act to make an order it thinks fit when there is a controversy with respect to an election or appointment of a director or officer. The Court of Appeal held that the following factors should be taken into account in the exercise of this discretion:

● the intentions of the chief election officer;

● the lack of evidence of wrongdoing;

● the acquiescence of the applicant, Dumont; and

● the essential fairness of the electoral process.

The court found that all of the departures from the election by-law were born of practical necessity. In particular:

● The chief electoral officer augmented the list of electors when obvious errors were found indicating that the local offices were not fulfilling their functions.

● When prospective voters arrived at the polls on election day to find that their names were not on the poll list, the deputy returning officers permitted the vote if they could establish the voter's qualifications and the scrutineers provided input, an expedient which prevented the inappropriate disenfranchisement of voters.

● The mail-in ballot could be equated with an advance poll because it permitted voters to acquire and send in ballots in advance of the election day. The mail-in ballot process was substantially less expensive to MMF than the cost of establishing the machinery for manning advance polls to convenience a handful of voters.

Everything done by the chief electoral officer was aimed at achieving a fair election result for the office of president and the other 21 board positions. Essentially the same procedures had been adopted in prior elections. Nevertheless, no complaints had previously arisen from the leadership of MMF (including Dumont) or from individual members of MMF. Dumont had acquiesced in departures from the terms of the election by-law and could no longer be heard to complain.

Also, while Dumont now complained of these irregularities, he did not take issue with the fairness of the election.

3. Key Observations

What no doubt helped the court in its decision was the impeccable status of the chief election officer and deputy CEO. Their good faith and impartiality were not doubted. The departures from the election by-law were all in the interests of conducting an impartial election in which qualified voters would be enfranchised, thus leading to the decision of the majority. The acquiescence of Dumont to departures in prior elections was a convenient fact but would not have been decisive if there had been any evidence that it affected the outcome of the election. Acquiescence by a candidate does not on its own justify a departure from the constating documents that affect the members as a whole.

This case also demonstrates the importance of conforming the electoral process to established practice rather than perpetuating deviations. Had the election by-law been amended before the contested election, the court challenge all the way to the Manitoba Court of Appeal could have been avoided.