Part 47 published on 01/09/14
Meeting chair improperly “de-certified” election results
Two directors were elected at a meeting of owners. The chair of the meeting had reviewed the proxy votes, and confirmed the results. Several weeks after the meeting, the chair was asked to again review the proxy votes. Furthermore the corporation’s president asserted that one of the elected directors had altered some proxies, prior to the meeting. As a result of this assertion, the chair concluded that the result of the vote was unreliable (due to questionable proxies) and called for a new meeting in order to hold a fresh election. The two elected directors applied for an order confirming their election. The Court granted their application. The Court’s reasons including the following:
- A person’s role, as chair, is concluded once the meeting is complete. In this case, the chair’s role was ended when the chair first confirmed the election results. Any subsequent challenge to the meeting’s process was then a matter for the Courts.
- An election should be set aside only if the voting results can be shown, on a balance of probabilities, to be inaccurate. A mere allegation or possibility of a voting irregularity is not sufficient. Furthermore, the votes in question must be shown to have a “material impact on the results of the Election”.
- In this case, on a balance of probabilities, the election results initially declared by the chair should not be disturbed because there was insufficient evidence to disturb those results. “The law is that proxies are prima facie valid if they are in proper form and appear to have been executed by a person qualified to vote. As well, the improper rejection of a proxy is as potentially significant to an election as the improper admission of one. Proxies appearing to bear an amendment are not automatically improper; for example, the amendments may well have been placed on the proxy by the owner or his power of attorney.”
- Concerns about proxies or voting rights should be made promptly – normally at the meeting itself.
[Editorial Note: In this case, the chair (when initially confirming the results of the vote) had properly rejected other proxies, apparently based upon more reliable evidence that those proxies had been altered prior to the meeting.]