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Monday
Aug272012

College Board election procedures limited to express bylaw provisions

Marchand v. College of Massage Therapists of British Columbia, 2012 BCSC 703, involved a decision by the CMTBC registrar to postpone a board election as a result of concerns about the solicitation of proxies for that election.

Apparently, there was disagreement within the CMTBC arising out of a previous board decision to reduce the number of education hours required to qualify for registration. A group opposed to that decision formed a voting bloc, with the object of promoting candidates who would restore the prior, more-demanding education requirement. The efforts of this group included solicitation of proxies from registrants who would not be attending the AGM. The registrar received complaints from registrants about how this solicitation was being carried out, and upon reviewing the proxies received, decided a number were inappropriately completed. Eventually, she concluded the entire proxy gathering process was so tainted that if the proxies were exercised in the election, the result would be invalid. As a result, the registrar postponed the AGM election in favour of a mail-in ballot.

The registrar’s decision was challenged by a registrant who brought a petition for judicial review.

In hearing the petition, the court decided that the fundamental issue before it was whether or not the registrar had the authority to cancel the AGM election and conduct a mail-in ballot. Given this was a question of the registrar’s authority or jurisdiction, the court determined, in accordance with the SCC’s 2008 decision in New Brunswick (Board of Management) v. Dunsmuir, that the matter should be reviewed according to a correctness standard.

Applying that standard, the court concluded that the CMTBC bylaws did not give the registrar the authority to postpone or cancel an election ordered by the board. The court was prepared to imply a power to postpone or cancel an election, but only when “extraordinary and unforeseen circumstances” arose that made it impossible to proceed with the election (for example, “if weather conditions made travel to the site of the meeting impossible or if the location of the meeting was somehow rendered uninhabitable”). Absent such extraordinary events, “the Registrar's power is limited to supervising the election which the Board has ordered”. In this case, the registrar had the power to review the proxies received to determine whether or not they were valid, but even if she decided they were all invalid, she did not have authority to cancel the election.

While the court agreed that a mail-in ballot offered practical advantages in the circumstances, it was not something contemplated by the bylaws, and therefore, could not proceed.

The court ordered a new election to take place in accordance with the procedures outlined in the bylaws. It also concluded that the proxies previously deemed invalid could not be used in that election. The court provided directions for the submission of new proxies in conjunction with the new election, including a process for involving scrutineers to screen the proxies received.

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