College boards: The validity of voting proxies and the power of registrars to supervise or cancel elections

The BC Supreme Court found that a registrar under the Health Professions Act empowered to supervise a board election did not have a power to cancel the election based on proxy irregularities, or to dictate a mail-in ballot not authorized by the college’s bylaws, in Marchand v. College of Massage Therapists of British Columbia, 2012 BCSC 703.

In that case, five candidates were running for three vacancies on the College’s Board. Two candidates were incumbents who had previously voted to reduce the minimum number of curriculum hours required for entry into the practice. The reduction had been opposed by the Massage Therapists Association of BC, who joined with a group of massage therapists, RMT Respect, to support a slate of candidates for the Board. The Association and RMT Respect solicited proxies from members unable to attend but wanting to vote for the slate of candidates. As a member could hold a limited number of proxies, RMT asked that proxies be sent in blank, so that it could fill in the name of the proxy holder.

RMT Respect provided 222 out of 414 proxies. Of the 396 valid proxies received by the College, the registrar concluded that some 200 had been completed by someone other than the registrant who had inserted the name of the appointed proxy after the registrant signed the proxy form. The registrar concluded that the proxy gathering process was so tainted that allowing the proxies to be exercised would result in an invalid election. [23] The registrar determined that a proper exercise of her discretion would be to declare the proxies invalid, postpone the election and have a mail-in ballot in which all members could participate. [23]

The question of the registrar’s jurisdiction was not premature. [38] The court determined that the issues of the registrar’s jurisdiction were questions “of general application which apply to all health professions regulated by the Act.” Accordingly, the court reviewed the registrar’s decision on a correctness standard. [33] The court went on to find, however, that the College’s bylaws did not give the registrar an express or implied power to postpone or cancel an election ordered by the board. [39]

(We query whether an interpretation of a particular College’s bylaws can be said to be of a matter of general application applying to all health professions, rather than an interpretation of a “home” statute warranting a review on for reasonableness.  The year of 2011 saw the Supreme Court of Canada deliver key cases on the “home” statute advantage: see our 2011 Administrative Law Round Up here)

The registrar was empowered to supervise the election, to review proxy forms, and to determine if a proxy had been properly completed. If a proxy form was not properly completed, she could determine the proxy was invalid, but some or all of the proxies being invalid did not give the registrar the power to cancel the election. [41] “Proxy holders who failed to complete the proxy in a proper manner disenfranchised themselves.” [42] The court went on to determine that the proxy form “requires the registrant to name the person who will exercise the proxy. Proxies that are signed in blank and subsequently filled in by a third party are not valid. Accordingly, many of the proxies that were solicited prior to the March 25, 2012 election are not valid and the Registrar was correct to invalidate those proxies.” [57]

The court also found that the bylaws of that particular College did not authorize a mail-in ballot. The registrar had no authority to order such a vote. [46] The court therefore ordered a new election within 75 days, [61] and anyone soliciting proxies would know that “the registrant must fill in the name of the proxy holder if they want the proxy to be valid.” [59]

Marchand v. College of Massage Therapists of British Columbia, 2012 BCSC 703