If a recent Osoyoos trustee by-election is going to be reset, a challenge will have to come from either a candidate or the community.
The Okanagan Similkameen School District Friday declined to ask the B.C. Supreme Court to take a look at the by-election and a discovered irregularity.
“The recent trustee by-election process appears to satisfy the requirements in Section 155.3 (of the Local Government Act),” reads an information release signed by the District’s Secretary Treasurer Lynda Minnabarriet.
“However, candidates have been notified of the omission in the event they wish to make an application to the BC Supreme Court.”
The “omission” to which Ms. Minnabarriet refers involves advanced polling for the Nov. 5 by-election, which was called when Osoyoos-area trustee June Harrington suddenly resigned last summer.
The provincial Local Government Act requires two advance polls; only one advance poll was held.
Candidate Penny Dupperon, who finished second to elected trustee Casey Brouwer, brought the irregularity to the District’s attention. She made an impassioned plea Nov. 23 for trustees and the District to “declare the election invalid” and restart the election process.
“It was an honest mistake, but it was a mistake, nonetheless,” Ms. Dupperon told trustees and SD53 administration Nov. 23. “Would this have impacted the results? No one can say. There’s absolutely no way to determine this.
“What can be said though, is that the election wasn’t conducted in accordance with the Local Government Act, the School Act, or even the School District Number 53’s own trustee by-election bylaw No. 20.”
The District’s administrative team is declining to act on Ms. Dupperon’s request.
“The application to the BC Supreme Court would not necessarily result in the by-election being declared invalid,” the release reads. “However, the Act does anticipate the possibility of errors or oversights.”
The release then cites Section 153(3) of the Act, which provides direction to the court:
“the court must not declare an election invalid by reason only of an irregularity or failure to comply with this Act or a regulation or bylaw under this Act if the court is satisfied that
(a) the election was conducted in good faith and in accordance with the principles of this Act, and
(b) the irregularity or failure did not materially affect the result of the election.”
An application would allow the Supreme Court several options:
- declare that the election is confirmed as valid;
- declare that the election is invalid and that another election must be held to fill all positions for that office that were to be filled in the election that was declared invalid;
- declare that the election of a candidate is invalid and that the office is vacant; or
- declare that the election of a candidate is invalid and that another candidate is elected in place of that candidate.
Board chair Marieze Tarr, when asked to comment on the irregularity, provided an email in response.
“The Board of Education, according to the local Government Act, does not make the decision to make an application to the Supreme Court as we do not direct the election process,” she said in the email.
“It is up to the Chief Election Officer, a candidate in the election or at least four electors in the electoral area for which the election was held to bring the application to the Supreme Court to challenge the validity of the election.”
Ms. Tarr adds the caution a challenge “will not necessarily result in the by-election being declared invalid.
“Looking at Section 155(3) of the act, the Board believes that the election was conducted in good faith and in accordance with the principles of the Act and that the irregularity or failure did not materially affect the result of the election,” she concludes.
The School District’s release suggests it would not be appropriate for trustees “to comment on any further actions regarding this issue.”
That would appear to include Mr. Brouwer, who has declined to respond to an opportunity to comment. John Redenbach, a third candidate in the by-election, has also declined to comment.
In the November 5 by-election, the winning candidate, Mr. Brouwer, received 251 votes — including 83 cast at an October 26 advance polling opportunity. Ms. Dupperon received 211 votes, including 27 cast during advanced polling. Mr. Redenbach received 87 votes.
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