Fells v. Barrington (Municipality), 2013 NSSC 331

SUPREME COURT OF NOVA SCOTIA Citation: Fells v. Barrington (Municipality), 2013 NSSC 331 Date: 20131015 Docket: Yar. No. 408934 Registry: Yarmouth Between: MICHAEL FELLS Applicant - and - BRIAN K.

HOLLAND, Clerk of the Municipality of Barrington; PENNY SMITH, Clerk of the Municipality of Shelburne; LINDA FRASER, Clerk of the Municipality of Digby; CONNIE SAULNIER, Clerk of the Municipality of Clare; KEN MOSES, Clerk of the Municipality of Yarmouth; ALAIN MUISE, Clerk of the Municipality of Argyle, JEFF GUSHUE, Clerk of the Town of Yarmouth, EDWIN OSSINGER, Clerk of the Town of Digby; LISA DOUCET, Superintendent of Schools, Tri-County School Board; DARLENE LAWRENCE, candidate; MARIE ATKINSON, returning officer; JOYCE Y.

YOUNG, Town Clerk of the Town of Lockeport; and, BRIAN CROWELL, Town Clerk of the Town of Clarks Harbour Respondents __________________________________________________________________ LIBRARY HEADING __________________________________________________________________ Judge: The Honourable Justice Pierre L. Muise Heard: October 15, 2013 at Yarmouth, Nova Scotia

Summary: The Applicant was one of two candidates for the position of African Nova Scotian ( “ ANS ” ) member on the Tri-County Regional School Board, in the October 2012 Election. He received 223 votes less than the successful candidate. 247 of the individuals who voted electronically for the ANS member confirmed that they: were not qualified to vote; only assumed they were entitled to vote because a ballot for that election was offered to them; and, found the electronic voting system generally confusing. In addition, multiple municipal units used electronic voting without passing by-laws meeting the requirements of

Section 146A of the Municipal Elections Act ( “ MEA ” ). Issue: Wether the election should be declared void. Result: At least 247 voters were ineligible to vote. They did not provide good faith confirmation of eligibility by requesting an ANS ballot. The ANS ballot was presented to them as a voting option in the electronic voting script, contrary to the requirements of S. 42A of

the Education Act . These 247 votes were invalid, leaving the result of the election uncertain. The election was declared void on that basis. It was unnecessary to consider whether the failure of certain municipal units to pass electronic by-laws meeting the requirements of the MEA rendered the election one that was not conducted in accordance with the principles of the MEA . SUPREME COURT OF NOVA SCOTIA Citation: Fells v. Barrington (Municipality), 2013 NSSC 331 Date: 20131015 Docket: Yar. No. 408934 Registry: Yarmouth Between: MICHAEL FELLS Applicant - and - BRIAN K.

HOLLAND, Clerk of the Municipality of Barrington; PENNY SMITH, Clerk of the Municipality of Shelburne; LINDA FRASER, Clerk of the Municipality of Digby; CONNIE SAULNIER, Clerk of the Municipality of Clare; KEN MOSES, Clerk of the Municipality of Yarmouth; ALAIN MUISE, Clerk of the Municipality of Argyle, JEFF GUSHUE, Clerk of the Town of Yarmouth, EDWIN OSSINGER, Clerk of the Town of Digby; LISA DOUCET, Superintendent of Schools, Tri-County School Board; DARLENE LAWRENCE, candidate; MARIE ATKINSON, returning officer; JOYCE Y.

YOUNG, Town Clerk of the Town of Lockeport; and, BRIAN CROWELL, Town Clerk of the Town of Clarks Harbour Respondents Judge: The Honourable Justice Pierre L. Muise Heard: October 15, 2013 at Yarmouth, Nova Scotia Counsel: Brent H. Silver, for the Applicant

No other parties or counsel were in attendance. INTRODUCTION [ 1 ] The Applicant, Michael Fells, was one of the two candidates for the position of African Nova Scotian ( “ ANS ” ) member on the Tri-County Regional School Board, in the October 2012 Election.

He received 223 votes less than the successful candidate, the Respondent, Darlene Lawrence. 247 of the individuals who voted in that African Nova Scotian School Board Member Election by telephone or computer have, by sworn affidavit filed in this Application, confirmed that they: were not qualified to vote; only assumed they were entitled to vote because a ballot for that election was offered to them; and, found the electronic voting system generally confusing. The Applicant is of the view that a further 63 ineligible individuals also voted. However, he has been unable to obtain affidavits from them.

In addition, he submits multiple municipal units used computer and telephone voting without passing by-laws meeting the requirements of

Section 146A of the Municipal Elections Act , R.S.N.S. 1989, c. 300 (the “ MEA ” ). [ 2 ] As a result, the Applicant filed the within Application in Court for an Order, pursuant to Section 158(1) of the Municipal Elections Act , voiding the African Nova Scotian School Board Member Election results on the grounds that: the number of votes cast by ineligible voters makes it impossible to determine who won; the electronic voting system was confusing and offered ballots to all voters; and, multiple municipal units had inadequate electronic voting by-laws. [ 3 ] The Respondents, Linda Fraser, Connie Saulnier, Alain Muise, Jeff Gushue, Edwin Ossinger, Darlene Lawrence, and Marie Atkinson filed notices of contest which they subsequently withdrew.

The proceedings against Brian Holland, Penny Smith, Ken Moses, Joyce Young, and Brian Crowell were dismissed without costs. Lisa Doucet did not file a notice of contest. Therefore, the Application is not contested. [ 4 ] None of the evidence presented in this Application was challenged, and there is no dispute in relation to the facts. ISSUES [ 5 ] The ultimate issue is whether the election should be declared void. Determining that issue, involves consideration of the following questions: 1. Whether there was non-compliance with the MEA ; 2.

Whether any such non-compliance was of a type listed in s. 164 of the MEA ; 3. Whether any such non-compliance affected the result of the election; and, 4. If the result was not affected, whether the election was conducted in accordance with the principles of the MEA . LAW [ 6 ] Subsection 158(1) of the Municipal Elections Act provides: “ Where an election or a vote of the electors for the determination of any matter that the council has directed be put before the electors has not been conducted in accordance with this Act, the Supreme Court may, upon application, declare the election or the vote to be void.”

[ 7 ] The relevant portions of

Section 164 of the MEA provide: “ No election shall be declared invalid …. (

d) by reason of non-compliance with the provisions of this Act or a by-law made pursuant to this Act as to the taking of the poll, as to the counting of the votes or as to limitations of time; .... if it appears to the judge that the election was conducted in accordance with the principles of this Act or a by-law made pursuant to this Act and that the irregularity, failure, non-compliance or mistake did not affect the result of the election.” [ 8 ] In Madden v. Muise , 2013 NSSC 35 , at paragraphs 23 to 35 , I discussed the principles and interpretive guidelines outlined in Warrington v.

Lunenburg (Municipality) , 2006 NSCA 78 , and in Opitz v. Wrzesnewskyj , 2012 SCC 55 as being applicable to applications to annul elections. Those which are relevant to the case at hand can be summarized as follows. 1. Section 158(1) of the MEA gives this Court discretion to void an election which “ has not been conducted in accordance with ” the MEA . The Applicant bears the legal burden of establishing, on a balance of probabilities, that the election should be voided. However, once non-compliance is shown, the onus is on the responding party to satisfy the Court that the election is saved under

Section 164. 2. An election is saved under

Section 164, and cannot be declared void, if the party opposing the declaration satisfies the Court that: “ the election was conducted in accordance with the principles of ” the MEA ; and , the non-compliance “ did not affect the result of the election ” . 3. Deficiencies which “ affect the result of the election ” cannot be accepted as being “ in accordance with the principles of ” the MEA . 4. The election will not have been “ conducted in accordance with this Act ” if the deficiencies amount to substantial or serious breaches of the principles in the electoral legislation.

However, an election may comply with the principles in the Act despite “ technical non-compliance with procedures ” . 5. In determining whether deficiencies affected the result of an election, there can be no intrusion on ballot secrecy by way of a questioning voters about who they voted for. In addition, if, after excluding votes cast by ineligible voters, the Court is left in doubt regarding who the winner was, the election should be declared void. It must be assumed that all invalid votes were cast for the successful candidate. This is referred to as the “ magic number test ” . 6.

In determining which votes should be invalidated, a “ substantive ” approach, focussing on substantive voting rights, should be used, rather than a “ strict procedural ” approach. [ 9 ] The case at hand involves the election of an ANS member for a school board. Therefore, the following comments at paragraphs 2 and 3 of Warrington , dealing with voter qualification, are directly applicable: “2.

Section 42A of the Education Act S.N.S. 1995-96, c. 1, as amended S.N.S. 2000, c. 11, s. 7 and S.N.S. 2003, c. 9, s. 45, provides for the election of an African Nova Scotian ("ANS") to each regional school board. One ANS member is to be elected by "African Nova Scotian electors" in each school region.

Section 42A(1) defines "African Nova Scotian" as "a person who is African Nova Scotian or a black person", and defines "African Nova Scotian elector" as a person qualified to vote in a school board election who is either an African Nova Scotian or the parent of an African Nova Scotian.

Section 42A(4) says that the election of the ANS member is to be held at the same time as the regularly scheduled election of the school board.

Section 45A(10) permits an ANS elector to vote for either an ANS member or a non-ANS member, but not both.

Section 42A(5)(

c) states how an elector is identified at the poling station as an ANS elector. (

c) where a person intends to vote in an election of an African Nova Scotian to a school board, that person shall not be required to take an oath or make an affirmation in a form attesting to that person's status as an African Nova Scotian elector, but shall be required to confirm the person's status as an African Nova Scotian elector as defined in the Education Act and, where a person wishes to provide the confirmation, the person may provide the confirmation by requesting the ballot to vote for the African Nova Scotian elector and that request constitutes the confirmation.

Section 42A(8) says that such a confirmation in good faith is "conclusive evidence that the person is an African Nova Scotian elector." [ 10 ] In addition, as noted at paragraph 8 of Warrington : “

Section 42A(9) of the Education Act says that the Municipal Elections Act ... applies to the election of ANS members to school boards. ” [ 11 ] Further, Section 2(2) of the MEA provides that: “ Subject to the Education Act , [the MEA ] shall mutadis mutandis apply to the election of any member of a school board as if such member were a councillor. ” ANALYSIS 1. Whether There was Non-Compliance With the MEA [ 12 ] As noted at paragraph 33 of Opitz , “ [t]he purpose of procedural provisions in [electoral legislation] is to enfranchise those persons having a right to vote ..., and to prevent persons without the right to vote, from voting. ” [ 13 ]

Section 42A(1) provides that, to be eligible to vote for an ANS member of a school board, a voter must be an African Nova Scotian or a black person, or a parent of same, and otherwise qualified to vote in a school board election. That means he or she must also meet the basic qualification requirements of

Section 14 of the MEA . However, those basic qualification requirements are not at issue in this proceeding.

Section 42A(5)(c)also provides that the voter must confirm his or her eligibility by requesting a ballot for the election of an ANS member to a school board.

Section 42A(8) further provides that such confirmation, given in good faith, is conclusive evidence of eligibility. [ 14 ] The Court in Warrington upheld the trial judge ’ s ruling that giving electors the ANS ballot, without it being requested, invalidated the votes cast on those ballots because the qualifying condition of a request under

Section 42A(5)(

c) had not been satisfied. [See paragraphs 5 and 22.] [ 15 ] In the case at hand, 247 voters confirmed by affidavit that they voted in the October 2012 Election for the ANS member on the Tri-County Regional School Board, even though they did not meet the eligibility requirements in

Section 42A(1), and did not intend to represent or imply that they did. They all voted by telephone or computer and found the electronic voting system confusing. They assumed they were entitled to vote because the ANS ballot was offered to them. In my view there was no good faith confirmation of eligibility. [ 16 ] The telephone and computer voting scripts used for the 2012 School Board Elections in the Municipalities of Digby, Clare and Argyle, and the Towns of Digby and Yarmouth are attached to the Affidavit of Dean Smith, President and Founder of Intelivote Systems Inc., dated March 26, 2013. All scripts present casting a vote for the African Nova Scotian Member of the Tri-County Regional

School Board as one of the voting options, and ask the voter to select one of the options presented. The telephone voting scripts ask the voters to please ensure they “ have reviewed and meet the School Board qualifications listed on [their] Voter Instruction Letter before proceeding to the selection ballot ” . The computer voting scripts state the qualification criteria outlined in

Section 42A(1) of the Education Act . However, neither script states that, if the voter intends to vote in the ANS member election he or she must confirm eligibility by requesting a ballot for that election, and the mechanism for doing so. They simply provide the ANS ballot as one of the options to select. In my view, that has the same effect as presenting the ANS ballot to a voter who has appeared in person, which, in Warrington , at paragraph 22 , was held to have ignored “ eligibility qualifications of electors ... a cornerstone principle of elections legislation ” .

Further, the 247 ineligible voters did not take note of any warnings about qualifications to vote in an ANS school board member election. [ 17 ] Therefore, at least in relation to those 247 voters,

Section 42A of the Education Act was not complied with. As a result, at least 247 ineligible voters cast ballots. Over 60 other voters in the ANS member election verbally confirmed to Brent Silver, counsel for the Applicant, that they were not qualified to vote. However, they either refused to sign an affidavit, or have not done so. [ 18 ] Section 2(2) of the MEA incorporates the eligibility and eligibility confirmation provisions of the Education Act .

Therefore, in my view, the voting by ineligible voters resulting from the electronic voting process outlined above constitutes irregularity resulting from non-compliance with the MEA . [ 19 ] The practicalities of an electronic voting system require direction regarding the availability of an ANS ballot, and how to access it. Otherwise, a qualified voter, intending to cast a vote for an ANS school board member will not know how to confirm his or her eligibility by requesting an ANS ballot.

However, the direction must make it clear the ANS ballot is not a voting option for those who are not qualified to vote for an ANS member. [ 20 ] To comply with the eligibility and eligibility confirmation provisions of the Education Act , as they currently read, and attempt to avoid confusion resulting in voting by ineligible voters, the script should: A.

Inform the voter that, if he or she is qualified to vote for a candidate for election as the ANS member of the school board, and intends to vote in that election, and not for a candidate for election to the school board other than the ANS member, he or she can confirm his or her qualification to vote, and obtain a ballot, by requesting a ballot for the election of the ANS member of the school board; B. State the eligibility criteria which must be met to be qualified to vote in the election of the ANS member of the school board; C.

Emphasize that only qualified voters may vote in the election of the ANS member of the school board, and that, if they choose to vote in that election, they will not be permitted to vote in the election of school board members other than the ANS member; D. Direct the voter as to how he or she requests a ballot for the election of the ANS member of the school board; E. Direct the voter as to how he or she proceeds if he or she is not qualified to vote in the election of the ANS member of the school board, or does not intend to vote in the election of the ANS member of the school board; and, E.

Where the ANS ballot is requested, provide instructions for voting. [ 21 ] The electronic voting system should have a mechanism and directions for backing out of the ANS ballot prior to having cast a vote, in case the voter requests an ANS ballot in error. In addition, the electronic voting system should prevent a voter who has requested an ANS ballot, and voted in that election, from voting in the election of school board members other than the ANS member.

2. Whether Such Non-Compliance With the MEP Was of a Type Listed in S. 164 of the MEA [ 22 ] In my view, the failure of the electronic voting system to require confirmation of eligibility by requesting an ANS ballot amounts to non-compliance with the provisions of the MEA “ as to the taking of the poll ” , including the provisions incorporated into the electoral process from the Education Act . Therefore, it is a non-compliance of the type listed in s. 164. 3.

Whether Such Non-Compliance Affected the Result of the Election [ 23 ] The “ magic number test ” , which I am directed by the Supreme Court of Canada to use, assumes all invalid votes were cast for the successful candidate. [ 24 ] At least 247 votes are invalid because they were cast by ineligible voters, who did not intend to confirm eligibility in good faith, and did not do so, and who were presented with ANS ballots without having requested them, contrary to the requirements of the electoral legislation. The successful candidate, Ms. Lawrence, won by 223 votes.

Assuming all 247 invalid votes were cast for her, expunging those votes would leave the Applicant having received more votes than the successful candidate. As such, expunging those invalid votes, leaves the Court uncertain about whether or not the successful candidate would have received more votes than the Applicant, but for the votes of the ineligible voters. [ 25 ] Therefore, the non-compliance affected the result of the election. 4.

Whether the Election Was Conducted in Accordance With the Principles of the MEA [ 26 ] As noted in Warrington , where deficiencies affected the result of an election, it cannot be saved by

Section 164 of the MEA . It is only where the deficiencies do not affect the result that an election may be saved by a finding that it was “ conducted in accordance with the principles of ” the MEA . Therefore, it is unnecessary for me to determine whether the October 2012 Election for the African Nova Scotia Member of the Tri-County Regional School Board was conducted in accordance with the principles of the MEA . [ 27 ] The Municipality of Digby and the Town of Digby passed by-laws purporting to authorize voting by internet and telephone in the 2012 Municipal Elections. Neither by-law contains the types of provisions mandated by

Section 146A(2) of the MEA . However, the electronic voting scripts used in those municipal units were like those used in other municipal units, such as the Municipalities of Clare and Argyle, who passed electronic voting by-laws which contained the types of provisions mandated by

Section 146A(2). [ 28 ] The Applicant asks the Court to find that these deficiencies in the by-laws passed by the Municipality of Digby and the Town of Digby are a “ substantial breach of the statutory requirement ” rendering the election one that was not conducted in accordance with the

principles of the MEA , and thus one that cannot be saved under

Section 164, irrespective of whether the result of the election is affected. [ 29 ] Since I have already determined that the election cannot be saved because the 247 invalid votes affected the result, it is unnecessary for me to determine whether the deficiencies in the by-laws render the election one that was not conducted in accordance with the MEA principles. However, I note that: these deficiencies clearly constitute non-compliance with the requirements of the MEA ; and, the Town of Digby and Municipality of Digby can avoid such deficiencies from becoming an issue in any future election by rectifying them. 5.

Whether the October 2012 Election for the African Nova Scotian Member of the Tri-County Regional School Board Should be Declared Void [ 30 ] In deciding whether the election should be declared void, I bear in mind the impact of doing so, as I discussed in Madden v. Muise , at paragraphs 61 and 62 , and that it is not something to be done lightly.

However, where there are deficiencies which “ affect the result ” of an election, voiding an election protects “ the integrity of the electoral process ” and safeguards the democratic right to vote. [ 31 ] In the case at hand, the non-compliance affected the result of the election.

Therefore, s. 164 of the MEA does not abrogate my authority to void the election. [ 32 ] At paragraph 75 of Opitz , it is stated: “[I]f a court is satisfied that, because of the rejection of certain votes, the winner is in doubt, it would be unreasonable for the court not to annul the election.” [ 33 ] In the case at hand, because of the invalid votes which must be expunged, “ the winner is in doubt ” . Therefore, it would be unreasonable not to declare the election void, and I must do so.

CONCLUSION [ 34 ] In light of the foregoing, pursuant to s. 158(1) of the Municipal Elections Act , I allow the Applicant ’ s Application and declare the October 2012 Election for the African Nova Scotian Member of the Tri-County Regional School Board void. COSTS [ 35 ] Whereas several parties have reserved the right to make submissions on the issue of costs, and the Applicant has requested

[ 35 ] Whereas several parties have reserved the right to make submissions on the issue of costs, and the Applicant has requested that the issue of costs be set over to a later date to allow that to occur, the issue of costs is set over for hearing to a date to be set after consultation with the other parties. ORDER [ 36 ] I ask the lawyer for the Applicant to prepare the Order. [ 37 ] Section 160(1) of the MEA states: “ At the conclusion of the hearing of an application pursuant to subsection (1) of

Section 158, the judge shall cause a copy of the judge's decision and of the final order to be forwarded to the clerk of the municipality or the superintendent of the school board, as the case may be, and to the Minister.” [ 38 ] Therefore, once the Order is issued, I direct that a copy of this decision, along with a copy of the order, be forwarded to the Superintendent of the Tri-County Regional School Board and to the Minister of Service Nova Scotia and Municipal Relations. In addition, in accordance with the usual practice, copies will be sent to all parties. __________________________ MUISE, J