Election lawful despite Election By-laws missing several provisions: Alberta Court of Appeal

The Alberta Court of Appeal ruled that Election By-Laws missing several provisions did not invalidate an election conducted in compliance with both the by-laws and the Local Authorities Election Act.

A municipal election was held in Calgary on October 18, 2021. Larry Heather and Carolina Evers challenged the legality of this election and the validity of the victor local officials. They filed their application on November 23, 2021.

The Local Authorities Election Act (LAEA) required that the challenge be brought within six weeks from election day. The application was filed in time but made returnable outside the six-week window.

The chambers judge heard the application on January 4, 2022. However, the chambers judge dismissed the application not for being late but on the merits.

On appeal, Heather, who had similarly tried to overturn Calgary’s 2017 mayoral election, raised three of their six grounds of objection to the election. They alleged that the City of Calgary By-Law failed to conform with the LAEA, that the use of voting machines was suspect, and the chambers judge erred in dismissing their complaint on a lack of a verified voters list.

The appellate court disagreed.

Despite By-Laws missing several provisions, elections conducted in compliance with both By-Laws and LAEA is lawful.

In Heather v Elections Calgary, 2023 ABCA 24, the appellate court held that the chambers judge did not err in ruling that there was no conflict between the LAEA and the Election bylaws. “The mere fact that provisions were missing from the Election Bylaw did not prevent the election from being conducted in a manner that complied with both the Election Bylaw and the LAEA,” said the court.

The chambers judge made no palpable and overriding error when it ruled that Heather failed to produce evidence to establish reasonable grounds, said the court.

On the issue of voting machines, the chambers judge ruled that Heather failed to meet the threshold for reasonable grounds under the LAEA. The appellate court ruled that Heather failed to show palpable and overriding error on this ruling, and as such, the chambers judge is entitled to deference.

Lastly, Heather alleged that the chambers judge erred by referring to the wrong section of the LAEA. While the chambers judge did make this error, the appellate court ruled that this was harmless error.