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Close Election Equals Closer Scrutiny

In Hara v. Khalsa Diwan Society - New Westminster (decided 1996), the British Columbia Court of Appeal upheld a trial court decision setting aside the 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).

Two factions, the Kangura group and the Johal group, contested control of the society. The elections of the society were hotly contested.

In 1995, the Johal faction succeed by a narrow margin of about 100 votes out of approximately 4,800 (or about a 2% margin of victory) and considerable litigation ensued (including one action that was appealed to the British Columbia Court of Appeal, followed by a second action).

The next election was scheduled for late 1997, but Justice Preston postponed it because of irregularities in compiling the voter list.

Both groups actively solicited members who held views similar to their own. Two lists resulted: the society's list and the accountant's list, which may be summarized as follows:

● the society's list had about 14,000 names but not addresses;

● at least 121 individuals had more than one membership;

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

● there were at least 156 names on the accountant's list that were not on the society's list.

2. Rulings

(a) Decision of the Supreme Court of British Columbia

Justice Preston held that the defects, errors and irregularities in the society's list were such that a fair election could not be held. It is implicit in the requirement for an election that the voter list be accurate enough to allow a fair election to be held. The narrow margin of victory in the previous election magnified the importance of even a small number of irregularities.

Accordingly, Justice Preston cancelled the society's list and held that the list of members in existence before the preparation of the cancelled list would remain the society's list until a new list was prepared.

Finally, he emphasized the financially ruinous litigation arising from similar situations in other Sikh temple societies - a situation he wished to avoid recurring.

(b) Decision of the British Columbia Court of Appeal

In short reasons, the British Columbia Court of Appeal unanimously affirmed the decision of the chambers judge, with the Chief Justice adding that it was incumbent on the parties to take whatever steps they considered necessary to ensure that the list of members entitled to vote at the meeting was properly prepared so that this difficulty could be avoided in the future.

3. Key Observations

These are wise judgments. They take into account the extent of the known or likely irregularities and compare them to both the total number of members on the list of members and the closeness of past board election results. Where there is a history of close elections, the degree of tolerance of irregularities will be lower. In this case, a discrepancy of at least 584 members was considered significant in light of the previous margin of victory (100 votes).

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, 25 members, 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 25 votes, it would seem that nothing turned on the irregularities. Even if the votes of all members whose application forms (that is, the entire 25) are deficient were 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 status of 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 the election at all. While the extent of the irregularities observed in Hara v. Khalsa Diwan Society measured against the previous margin of victory 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.

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