In Ngouandi v. Assemblée communautaire fransaskoise (A.C.F.) Inc. (released July 2018), the Saskatchewan Court of Queen's Bench applied broad pro-enfranchisement principles to overturn the results of the election of the president and regional board member of a Saskatchewan non-profit association representing the Francophone community in Saskatchewan.
The Assemblée communautaire fransaskoise Inc. (ACF) is the governing association of the Francophone community of Saskatchewan. It was incorporated under the Saskatchewan Non-profit Corporations Act, 1995 (Act).
In November 2017, ACF held an election for its president and the regional representatives forming its 12-member board of directors.
Some members opted to vote by advance mail-in ballot. However, 66 of the otherwise valid advance ballots were delivered to a dormant mail box, which was not discovered until three days after the election was held. The ACF's independent committee decided to reject all 66 otherwise valid ballots, with the result that Mr. Gauthier was elected president and Ms. Prolx-Cullen as Saskatoon representative. Had the 66 ballots been counted, the elected president would have been Mr. Simard and Mr. Afaine would have been elected as Saskatoon representative.
The 66 misdirected ballots arose because the advance-ballot package provided to members did not include a return address for the ballots and the deputy returning officer (DRO) inadvertently provided the address of the dormant mail box.
(a) The Validity of Mailed-In Ballots
Justice Chicoine of the Saskatchewan Court of Queen's Bench considered the issues anew and gave no deference to the decision of the independent committee to declare the 66 ballots invalid.
The purpose of the advance poll was to enable as many members as possible to vote in the election, including those who are physically disabled and those who for any reason cannot make it to the polling station on election day.
A ballot could not be invalidated on the basis that the member entrusted a third person to take the completed sealed envelope containing the completed ballot to the post office.
It would be unfair to an elector to invalidate his or her vote for having followed the instructions provided by the chief elections officer (CEO). It would also be fundamentally unfair to the members who used the mailing address provided to have their votes impugned or declared invalid because of the error of an election official.
Only votes cast by persons who are not entitled to vote should be declared invalid. All persons entitled to vote should be allowed to express their democratic preferences.
Ambiguities in election rules should be interpreted in a way that is enfranchising. Conversely, restrictions on the right to vote should be narrowly interpreted and strictly limited. The basic democratic right to exercise the franchise should not be interfered with by merely formal or immaterial matters that have not affected the integrity of the electoral process.
Accordingly, the court held that there were no irregularities in the conduct of the election which would justify disenfranchising all 66 members whose ballots were found in the ACF mailbox. These ballots should have been included in the total count for the election of president and for the election of the community representatives for Saskatoon.
Justice Chicione held that this was not a case where a new election should be ordered. Annulling an election disenfranchises not only those persons whose votes were disqualified but every member who voted in the election.
Also, a new election can never be run on a clean slate because it will always be coloured by the perceived outcome of the election it superseded.
In this case, the results of the election are known because the ballots were counted. If the 66 ballots are counted, Mr. Simard wins the presidency because he had the plurality of votes and Mr. Afaine wins the Saskatoon seat on the board. The office-holders declared by the independent committee must relinquish their offices.
The court ruled that the applicant was entitled to complete indemnification for his costs in bringing the application. The case was described as akin to a dispute over an estate where an issue arises because of some ambiguity in the will of the deceased. In some cases, it is common to award reasonable substantial indemnity costs to all parties, with the costs to be paid out of the estate.
3. Key Observations
The judge in this case does an admirable job in dissecting the issues and applying pro-democratic principles to restore the votes of the members who, through no fault of their own, sent their completed ballots to an incorrect address for the corporation. His decision to not require another election but to instead declare the results based on the known results was wise and his decision to award the applicant complete indemnification for his costs is just.
The court might have accorded deference to the independent committee, had the by-laws properly provided for its mandate and composition. However, the by-laws were deficient in spelling out the authority of the independent committee. In theory, however, it would be possible for the by-laws to provide for an independent elections committee to make rulings on contested ballots and the outcome of elections. The courts or an arbitrator could be given the role of reviewing the decision of the independent committee on any issues requiring an interpretation of the election rules.
In this case, the rulings of the independent committee were fundamentally flawed and produced an unfair result. It took the intervention of the court to set matters right.
Finally, the award of complete indemnity for the costs of the applicant encourages applicants to make meritorious applications to court. Otherwise, the financial disincentives to an applicant, even if successful, would act as a strong deterrent against ensuring that non-profit corporations adhere to fundamental democratic values.