Close Elections Equal Closer Scrutiny

In Garcha v. Khalsa Diwan Society - New Westminster (decided in 2006), the British Columbia Court of Appeal upheld a trial court decision setting aside a close election of directors of a religious institution governed by the British Columbia Society Act (now the Societies Act).

1. Facts

Khalsa Diwan Society was a religious society ministering the Sikh faith. The society was incorporated under the British Columbia Society Act (now the Societies Act).

The by-laws of the society provided that members must profess the Sikh faith, be at least 18 years of age and be Canadian citizens or landed immigrants. Due to litigation, the society had failed to have an election in three years.

On September 30, 2004, the society completed the enrollment of members for an election to be held on December 4 to elect the board (called the "executive" under the society's by-laws).

Justice Sigurdson heard the summary application and noted the following irregularities in the membership enrollment process:

● there were at least 419 duplicate membership applications. The number was likely higher but could not be conclusively determined because of the difficulties inherent in searching the lists by computer and the impracticability of searching them by hand;

● there were 83 individuals who appeared on the membership list for whom the society did not have supporting application forms;

● there were at least 307 names on the society's list that were not on the accountant's list and at least 156 entries on the accountant's list that were not on the society's list; and

● membership application forms were often not clearly filled out and the biographical information and identity of the application were often not scrutinized to ensure accuracy.

2. Rulings

On appeal, the appellants argued that the application judge found only 502 irregularities, and since the list of members comprised 5,838 members, the error rate was less than 10% of the total and could not be considered substantial.

The Court of Appeal noted that elections of the society were often closely contested. The difficulties concerning duplicate memberships and a lack of application forms for some members were such as to clearly justify an order cancelling the original enrollment. Members must have confidence that society elections would be conducted in a fair and orderly manner.

Finally, the court admonished the society because, five years earlier, the Chief Justice of British Colombia had instructed the parties to take whatever steps they considered necessary to ensure that the list of members was properly prepared so that this difficulty could be avoided in future. The Court of Appeal stated that the Chief Justice's advice had apparently fallen on deaf ears. There was an imperfect membership list and nothing had been done by the responsible parties to ensure that a proper electoral roll had been perfected.

3. Key Observations

This is a wise judgment of the British Columbia Court of Appeal. It takes into account the extent of the known or likely irregularities and compares it to both the total number of members and the closeness of past election results. Where there is a history of close elections, the degree of tolerance of irregularities will be lower. In this case, a margin of error of less than 10% was considered significant.

Implicit in the court's analysis is that perfection in membership lists is not required. Some level of irregularity may not rise to the level of being significant.

Had the margin of error been, say, less than 1%, the court's approach might have been different. It could have allowed the vote to proceed. If the margin of victory for the winning slate was more than 1%, it would seem that nothing would have turned on the irregularities. Even if the votes of all members whose application forms (that is, the entire 1%) were deficient was excluded from the vote tabulation, the outcome would have been the same. If, however, the margin of victory is less than the margin of error in the membership list, then the court should look into the validity of the disputed memberships more fully or appoint an expert or inspector to advise the court on the disputed members. In these circumstances, it may be a better option to let the election proceed and, if necessary, deal with the results later.

Holding an imperfect election may be better in some cases than never holding an election at all. While the extent of the irregularities observed in Garsha v. Khalsa Diwan Society measured against the total list of members fully justified cancelling the membership list, it is possible to conceive that the extent of irregularities in other cases may not always warrant the same remedy.