Mike Mangan has updated TCM Online, the electronic version of The Condominium Manual, to include the recent developments from Imbeau v. Strata Plan NW971, 2011 BCSC 801, a recent case overturning a $3 million dollaw special levy because the secret ballot lacked sufficient secrecy.

A Secret Ballot Must Provide Privacy

Recently, the Supreme Court of British Columbia overturned a $3 million dollar special levy because the secret ballot held to approve the levy lacked sufficient secrecy. As each eligible voter’s ballot was collected, his or her voting choice could by seen by that person’s neighbours and by the individual collecting the ballot. Since people could see how others voted, the ballot was not secret.

Background
A strata corporation’s bylaws may dictate voting procedures at general meetings, so long as those procedures comply with the Strata Property Act. For instance, the Standard Bylaws set out the following procedures:

  • Voting cards must be issued to eligible voters;
  • A vote is decided by show of voting cards, unless an eligible voter requests a precise count;
  • If a precise count is requested, the chair must decide if it will be by show of voting cards, by roll call, secret ballot or some other method;
  • The outcome of each vote must be announced by the chair and recorded in the minutes. If a precise count was requested, the chair must also announce the number of votes for and against the resolution;
  • If an eligible voter requests that a vote be held by secret ballot, the vote must be held by secret ballot; and
  • If there is a tie vote, the president, or, if the president is absent or unable or unwilling to vote, the vice-president, may break the tie by casting a second, deciding vote. This tie-breaker provision does not apply if there are only two strata lots in the strata plan.

 

A Recent Case

In Imbeau v. Strata Plan NW971, the Supreme Court of British Columbia invalidated a vote where eligible voters were not given sufficient secrecy in a secret ballot.    The strata corporation held a general meeting to decide whether to approve a $3 million dollar special levy for repairs. Just as in the Standard Bylaws, the strata corporation‘s bylaws permitted a voter to ask for a precise count, in which case the chairperson must decide if the vote will be held by show of voting cards, by roll call, secret ballot or some other method. When one of the voters requested a precise count, the chairperson ordered that the vote take place by secret ballot. It appears that ballots were handed out to the eligible voters, who marked them. The chairperson and the strata corporation’s lawyer collected the ballots and counted the votes. At the meeting, the eligible voters approved the special levy.

Afterwards, several owners asked the court to declare the vote invalid. The owners claimed that the ballot was not held in secret because there was no facility to mark and deposit votes in private. Two of the owners claimed that as each eligible voter’s ballot was collected, his or her voting choice could by seen by that person’s neighbours and by the individual collecting the ballot. In an attempt to preserve their privacy, some voters folded over their ballot to prevent others from seeing it.

Citing an earlier decision of the court involving voting in a labour-union election, the court emphasized that secrecy of ballot is one of the most fundamental principles in elections.  In Imbeau, it was no answer for the strata corporation to say that the bylaws did not require a voting booth for a secret ballot, or that the ballots did not identify the person who marked it. Breach of the secrecy principle is more than a mere irregularity; it is always viewed as serious and substantial. In this case, a secret ballot did not occur because people could see how individuals voted. The court found the vote invalid for failure to provide a secret ballot in accordance with the bylaws. This meant that the owners did not have to pay the $3 million dollar special levy.

 

The Following Section of TCM Online Have Been Updated

http://condomanual.ca/tcm3/voting/