In Chan v. Chin Wing Chun Tong Society of Canada (a 1999 decision), the Supreme Court of British Columbia set aside the election of directors of a society because it was heavily rigged, and ordered a new election.
Chin Wing Chun Tong Society of Canada was incorporated in BC in 1919 and subject to the BC Society Act. A feud developed between two factions within the society. The dissident faction decided to take over the society and employed several dirty tricks to elect its members to the board, ousting the chair and the directors who supported the chair.
First, the dissident faction foiled the attempt of nominees of the incumbent group to obtain nomination forms. The individual handing out nomination forms was not present when the incumbents sought their forms. Then, when the nomination forms were obtained, the dissidents wrongly took the position that the nomination forms were obtained past the deadline.
Even though the nominees submitted their completed forms on time, the dissidents refused to accept them because the deadline for obtaining the forms had passed.
When election day came, the ballots excluded the names of the incumbent nominees. Therefore, members had no means to vote for the nominees and the nominees were deprived of the opportunity to be re-elected as directors.
Also, the dissidents mixed up the ballot numbers so that voters (many of whom were elderly and could read neither English nor Chinese) would be intentionally confused as to the candidates, and leaflets were distributed to them listing only the candidates supported by the dissident group.
As a result, the dissidents won a majority of the seats on the board.
The former chair and another applicant applied to set aside the election and have the court order a new election.
(a) Exclusion of Nominees
Justice Shaw of the Supreme Court of British Columbia had no difficulty setting aside the election and ordering a new one.
He found that the election notice setting out the time for picking up nomination forms was only directory and, therefore, not fatal in the case of non-compliance. There was nothing in the notice stating that the failure to pick up the nomination forms at the set times would result in the disqualification of a candidate.
Further, he ruled that directors cannot exclude duly qualified candidates from the election process. To do so would allow directors to control the outcome of elections and that would destroy the election process.
(b) Tactics of Confusion
Justice Shaw found that the dissidents carried out tactics of confusion with the intent of causing confusion and with full knowledge of the likelihood of confusion. These tactics included deliberately mixing up the numbers on the posted nomination forms (so that illiterate voters could not match the candidates on the ballot to the photographs posted on the walls of the society's office) and handing out to members as they arrived to vote leaflets listing the candidates supported by the dissident group under the new numbers. Justice Shaw described the tactics of the dissident group as making a travesty of the election process.
(c) Onus of Proof on Winning Side
Justice Shaw held that, once irregularities in the conduct of an election have been established, the onus shifts to those responsible for the conduct of the election to show that the irregularities were not calculated to affect the result.
3. Key Observations
The ruling in this case was clearly justified. The election was seriously rigged and the winning faction won the majority of the board seats. An election involving circumstances much less egregious than those in Chan would still have been set aside. The only surprise in the case is that Justice Shaw allowed the directors purportedly elected at the nullified election to remain in office until a new election could be held, which he set at 45 days from the date of his judgment. One of the factors he weighed was the fractured loyalty of the former board, which had been unable to effectively operate the society. Another was the election as a new chair of an individual who had been president of the society for 21 straight years.