Standard Bylaw 27(7) refers to holding a vote by “secret ballot”. In fact, it makes it mandatory to do so if one is requested by an eligible voter. But what exactly is a secret ballot? Most owners and councils presume it is the act of handing out ballot forms (either at the start of the meeting or during), having owners mark them and then collecting them to be counted. However, a secret ballot is much more than that.
In Imbeau v. Strata Plan NW971, 2011 BCSC 801, the Court considered whether a ballot vote taken at a general meeting was truly “secret”; having been conducted in the manner described above. The Court concluded that it was not “secret” for the following reasons:
17 Petitioners' counsel relies upon a decision of McLachlin J. (as she then was) in Leroux v. Molgat, [1985] B.C.J. No. 45, 67 B.C.L.R. 29 (B.C. S.C.). That decision concerned a union election for which a declaration that it was null and void was sought from the court.
18 The union's business manager said that people were voting in circumstances where their votes could be seen by their neighbour and that no divisions to ensure privacy were provided at the advance polls notwithstanding the complaints.
19 The plaintiff there testified that at a number of advance polls no partitions were provided and members voted by placing their ballots on open tables or against the wall where their marks could be observed.
20 Madam Justice McLachlin concluded that the vote was not conducted by secret ballot and secrecy of ballot is one of the most fundamental principles in elections. Breach of this principle is regarded as more than a mere irregularity; it is always viewed as serious and substantial.
21 She said it follows from the fact that it was quite possible for members to observe how other members were voting at a number of the advance polls that members could be identified with their votes contrary to the constitution of the local union.
22 I see no material difference between the importance of a secret ballot at a union election and the importance of a secret ballot for a special resolution at a strata corporation meeting, where that method of voting was required by the Chair of the meeting.
In response to the Imbeau decision many Strata Corporations adopted a process whereby they made voting booths available if an owner wanted to use them. Ballots could still be marked by owners in their seat if they wanted. However, the case law requires much more than that.
In Leroux many of the members who voted didn’t wait to use the voting booths, choosing instead to mark “their ballots on open tables or against walls”. The Court concluded that “…it follows from the fact that it is quite possible for members to observe how other members were voting at a number of the advance polls and members could be identified with their votes contrary to article 12, s. 6 of the constitution. The contention that they could have voted secretly had they been willing to wait for a private area to be free provides no answer to the actual absence of privacy which occurred in the course of the voting. It was up to the persons in charge of the election to ensure that all votes were cast secretly.” (Emphasis added)
That final conclusion means that secret ballots must be conducted in a very controlled manner. Ballots cannot be provided in advance, lest an owner complete it before going to the booth to mark it. The proper process (which was approved by the CRT in The Owners, Strata Plan NW 2243 v. Cole, 2018 BCCRT 823) is as follows:
1. Call each owner (or their proxy) up, one at a time;
2. Give them a ballot;
3. Have them go behind a privacy screen and mark their ballot;
4. Have them place the marked ballot in the ballot box;
Only in that way can the strata corporation (being the person in charge) … “ensure that all votes were cast secretly”. Strict compliance with that obligation is required. The fact that most of the voters were satisfied with a flawed process doesn’t save the vote – Hong v. Young Kwang Presbyterian Church of Vancouver 2007 BCSC 502.
Given the importance of “secret” aspect, courts have been unwilling to overlook the error. In Imbeau the resolution was set aside. That can have significant consequences if the strata corporation has acted on the vote. It can be dangerous if the vote was close. There is no guarantee it will pass again.
For strata corporations who do not want to engage in such a formalized process the answer is to simply amend their bylaws to eliminate the reference to “secret”. A ballot (marked and folded) can still provide an alternative to a public declaration.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or shawn@clevelanddoan.com. He can be followed on Twitter @stratashawn.
