Court of Queen’s Bench of Alberta  
Citation: Northland School Division v Auger, 2022 ABQB 459  
Date: 20220705  
Docket: 2109 00171  
Registry: Peace River  
Between:  
Board of Trustees of Northland School Division  
Applicant  
- and -  
Thomas Auger  
Respondent  
_______________________________________________________  
Reasons for Decision  
of the  
Honourable Madame Justice Tamara L. Friesen  
_______________________________________________________  
INTRODUCTION  
[1]  
On October 18, 2021, Mr. Thomas Auger, was elected as the Ward 6 Trustee for the  
Board of Trustees of Northland School Division (Northland School Board).  
[2]  
The Northland School Board subsequently sought an Order pursuant to s 126(1) of the  
Local Authorities Election Act, RSA 2000 c L-21 (LAEA), declaring the Ward 6 School Trustee  
Election invalid and directing that a new election be held. On December 8, 2021, Justice Hayes-  
Page: 2  
Richards granted a fiat under s 127(2) authorizing the Applicant to procced with their  
application.  
[3]  
The Board alleged that the Ward 6 Trustee Election was not conducted in accordance with  
the requirements of the LAEA due to the following alleged election irregularities:  
voters were confused as to whether they were eligible to vote at the Mistassiniy  
School polling station;  
on the day of the election, the Main Door to Mistassiniy School ‘self-locked’  
which may have prevented eligible voters from entering the school to vote; and  
there was a low voter turnout for the Ward 6 Trustee Election compared to the  
voter turnout for the municipal election held on the same day at the Municipal  
District Polling Station.  
[4]  
Mr. Auger opposed the Board’s application and asked the Court to uphold the election.  
His de facto position was: first, that no irregularities occurred; and second, that even if  
irregularities occurred, the election was held substantially in accordance with the requirements of  
the LAEA and the irregularities did not have any material impact on the outcome.  
[5]  
For the reasons that follow, the Board’s application is denied.  
LEGISLATION  
Local Authorities Elections Act  
[6]  
Municipal elections in Alberta are governed by the LAEA. Part V of the LAEA deals with  
the procedure that must be followed in the case of controverted elections.  
[7]  
Pursuant to s 126 of the LAEA, the elected authority – in this case, the Board - has  
standing to challenge the validity of an election. Section 127 gives the Court of Queen’s Bench  
jurisdiction to conduct a trial to determine the issue of validity. If, after trial, the Court  
invalidates the election, then pursuant to s 138, the Court may order a new election to be held.  
[8]  
Section 137 addresses the procedure to be followed in conducting a validity “trial,”  
referred to in that section as a “hearing”:  
Hearing  
137  
(1) The judge shall without formal pleadings hear and determine  
a) the validity of the voting on the bylaw or question or in the  
election, or  
b) the right of the respondent to sit,  
and may inquire into the facts on affidavit or affirmation or by oral testimony.  
(2) If the validity of an election is contested before a judge on the grounds  
of  
a) a contravention of this Act or of any other Act applicable to  
Page: 3  
(i)  
the election,  
(ii)  
(iii)  
the procedure at the voting station, or  
the counting of the votes,  
a) a mistake in the use of any of the forms required in  
connection with the election, or  
b) any other irregularity,  
the judge, in the judge’s discretion, may adjudge the election invalid.  
(3) If the validity of an election is contested before a judge on the grounds  
mentioned in subsection (2) and it appears to the judge that the election was  
conducted substantially in accordance with the requirements of this Act and that  
the contravention, mistake or irregularity did not materially affect the result of the  
election, the judge may adjudge the election valid.  
ISSUES  
[9] In the present case, the Board has brought its validity challenge pursuant to s 137(2)(c),  
alleging three “other irregularities.” I must therefore determine:  
1. Did any acts or omissions constituting “election irregularities” occur?  
2. Was the election conducted substantially in compliance with the LAEA despite  
any proven irregularities? and  
3. Was the result of the election materially affected by any proven irregularities?  
PRELIMINARY ISSUES  
[10] Mr. Auger was self-represented throughout these proceedings. He is not a lawyer. He was  
advised several times during the various pre-trial applications to retain a lawyer, but chose not to  
do so. The day before the hearing he was in the hospital, dealing with health issues which have  
plagued him throughout these proceedings.  
[11] Counsel for the Board characterized the Board’s challenge to Mr. Auger’s election as a  
“friendly application.” In keeping with that approach, the Board presented the Court with  
detailed evidence on the issue of Board compliance with the LAEA in running the election.  
However, because the application was friendly, Mr. Auger attended the hearing virtually from  
the offices of McLennan Ross in Edmonton, where he sat at a table together with representatives  
of, and witnesses for the Board, as well as legal counsel and co-counsel for the Board throughout  
the proceedings.  
[12] Unfortunately, the practical impact of this was an adversarial hearing process where  
evidence was presented to the Court, but where no one appeared on behalf of the Respondent to  
challenge that evidence, or to cross-examine the witnesses, or to provide any legal arguments or  
submissions in favour of maintaining the validity of the election as a valid expression of “the will  
of the people,” a principle discussed below.  
Page: 4  
[13] The legislature, through s 137(1), gave the Court jurisdiction to “inquire” into the facts  
brought before it in relation to an election validity challenge. In Bellerose v East Prairie Métis  
Settlement, 2005 ABQB 597 at para 36, Belzil J interpreted the specific statutory wording as  
“meaning that the Court should adopt a functional and pragmatic approach to the hearing of  
evidence which approach must meet the factual exigencies of the particular election challenge.” I  
endorse that approach. Relying on this section, and considering the purpose of the legislation as a  
whole and the context in which this validity challenge arose, I decided to take a more active role  
in questioning witnesses and challenging Board counsel’s arguments than I normally would in a  
trial setting. In fairness to the Board, I attempted to put any questions or contrary positions I  
might be contemplating to Board counsel for their consideration and comment during the  
hearing.  
JURISPRUDENCE  
[14] Public trust in the election process is vital to the healthy functioning of a democracy and  
election results should be respected if possible. By the same token, there must be means by  
which citizens can challenge election results which are unfair and undemocratic as a result of  
malfeasance, or incompetence, or for some other valid reason. As Justice Kent stated in Vogel v  
Brazeau No 77 (Municipal District), 1996 19875, 183 AR 121, 32 MPLR (2d) 195,  
[1996] AJ No 319 (QB) at para 7:  
. . .The democratic process for choosing our governments by a vote of the  
citizens is one of the most fundamental principles upon which this country is  
built. It is a process which should not be interfered with lightly by the court.  
While this statement may seem trite, it must be repeated often to ensure that the  
power given to judges is not used too often or without very good reason. That  
said, there must be someone who does have the power to review elections to  
ensure that the true will of the people has been done. That will can be wrongfully  
avoided by incompetence or design; in either case the lawful will of the people  
must be protected.  
This principle has been regularly reiterated in cases involving election challenges: see  
Bellerose at para 26; Durocher v Fishing Lake Metis Settlement, 2003 ABQB 944 at  
para 10; Gordon v Bourque, 2001 ABQB 1001 at para 72; Anderson v Laderoute, 2001  
ABQB 961 at para 70 at para 5; and Shaw v Gift Lake Metis Settlement, 2015 ABQB  
470 at para 109.  
[15] The term “irregularity” is not defined in the LAEA or analogous legislation across  
Canada. InOpitz v Wrzesnewskyj, 2012 SCC 55 at paras 24. 39-43 and 51, [2012] 3 SCR 76, a  
case involving the analogous Canada Elections Act, SC 2000, c 9, Rothstein and Moldaver JJ  
described “irregularities” as “serious administrative errors that are capable of undermining the  
electoral process”.  
[16] The jurisprudence identifies a two-step process in considering an application under s 137 of the  
LAEA. First, the Applicant, in this case the Board, bears the onus of proof, on a balance of  
probabilities, of establishing the alleged irregularities. If the Board can meet that burden of  
proof, the burden then shifts to the Respondent, in this case Mr. Auger, who must prove: i) that  
the election was conducted substantially in accordance with the requirements of the electoral  
process and ii) that any irregularity or irregularities established by the Board did not materially  
Page: 5  
affect the result of the election: see Durocher at paras 10-14; Dumont v Fayant, 1995  
9216 at para 7, [1996] 1 WWR 691, 175 AR 283, [1995] AJ No 895 (QB); Leroux v  
Molgat (1985), 1985 229, 67 BCLR 29, [1985] BCJ No 45, [1985] CarswellBC 292  
(SC), per McLachlin J (as she then was); and Laboucan v Loonskin, 2008 FC 193 at para 14.  
[17] To set aside an election, the challenging party must show that the irregularities are  
substantial and not merely inadvertent, informalities or technical breaches: see Anderson at para  
70; Anderson v Stewart and Diotte (1921), 62 DLR 98 (NBCA); and Chan v Chin Wing Chun  
Tong Society, [1999] BCJ No 1472 (SC). In Bhagria v 316697 Ontario Inc, 2015 ONCA 243 at  
para 4, the Ontario Court of Appeal stressed that it is essential that the allegations of irregularity  
are established with “clear, relevant evidence” because, once the burden has shifted, the onus on  
the respondent is onerous.  
[18] Counsel for the Board provided me with three cases dealing with s 137 challenges:  
Durocher; Dumont; and Gordon.  
[19] In Durocher, the Applicants alleged that the following contraventions invalidated the  
election (at para 14):  
1) Ineligible persons who were not members of the settlement voted in the  
election;  
2) Ineligible persons who were not residents of the settlement voted in the  
election;  
3) [One of the respondents] was an ineligible candidate.  
[20] Justice Sulyma accepted that ineligible persons had voted in the election and determined  
that this constituted a contravention of the LAEA. She further determined that because the  
number of ineligible voters exceeded the margin of victory with respect to one of the challenged  
candidates, the contravention had a material impact on the outcome of the election it related to  
that candidate. The first candidate’s election was declared invalid (para 44). With respect to the  
other challenged candidate, because the number of ineligible voters did not exceed the margin of  
victory, the contravention did not have a material impact on the outcome of the election as it  
related to the second candidate. The second candidate’s election was declared valid (paras 116 -  
117).  
[21] In Dumont, the following election irregularities were alleged (at para 2):  
(a)  
(b)  
The polls did not remain open on election day until 8:00 p.m.  
Qualified electors who were in the voting station and wishing to vote prior  
to the scheduled close of polls at 8:00 p.m. were not permitted to vote.  
(c) The names of two ineligible candidates remained on the ballot,  
notwithstanding that they had withdrawn from the election.  
(d) Public notice and posting of notice concerning the withdrawal of  
candidates was not given in accordance with the Metis Settlements Act such that  
ballots were spoiled.  
(e)  
One or more qualified electors were prevented from casting their ballot.  
Page: 6  
[22] Justice Costigan, as he then was, carefully assessed the evidence that had been provided  
in support of the challenge and found that the alleged irregularities were not substantiated, and  
thus the Applicants had not met their onus of proof that any mistake, contravention or  
irregularity had occurred (at para 91).  
[23] In Gordon, the alleged contraventions or irregularities included the following (at para 3):  
(a)  
(b)  
ineligible persons were allowed to vote;  
ballots were marked in such a way that the voter could be identified, thereby  
destroying the secrecy of the ballot; and  
(c)  
one voter was given two ballots.  
[24] Justice Slatter, as he then was, assessed the facts and determined that 11 ineligible people  
had voted in the election, which constituted a contravention of the LAEA. He was not satisfied  
that the election “was conducted substantially in accordance with the Act” because “the number  
of ineligible voters exceed[ed] the margin of victory in the election” (at para 73), He declared the  
election invalid and ordered a new election to be held.  
[25] There are several other similar decisions from Alberta dealing with the impact of  
ineligible voters, or ineligible candidates, on otherwise compliant or valid elections. In Auger v  
Grouard Northland School, 2014 ABQB 506, after considering the evidence before him, Justice  
Graesser identified the following “mistakes or irregularities” (at para 43):  
(a)  
(b)  
(c)  
Late appointment of deputy returning officer;  
Appointment of only one deputy returning officer;  
Failure to require production of identification by the electors who attended  
to vote;  
(d)  
(e)  
(f)  
Failure of the returning officer to initial or sign all of the ballots;  
Initialling or signing the ballots after the ballot box was opened;  
Counting (or failing to reject) the un-initialed ballots.  
[26] He determined that due to these mistakes and irregularities, the election was not  
conducted substantially in compliance with the requirements in the LAEA and therefore, the  
results were invalid, and a new election needed to be held.  
[27] In Re R ex rel Marquette and Skaret (1981), 1981 1147, 119 DLR (3d)  
497 (AltaQB), the Court similarly quashed the election because of multiple errors:  
(a)  
(b)  
Four ineligible persons were allowed to vote;  
Two eligible voters declined to vote because they believed themselves to  
be ineligible based on an erroneous notice in a newspaper; and  
(c) Three eligible voters did not vote because the returning officer erroneously  
indicated that they were ineligible.  
Page: 7  
[28] Other cases considering electoral challenges under s 137 include: Bellerose; Shaw; East  
Prairie Métis Settlement v Aiken, 2010 ABQB 665; Chalifoux v Northland School Division  
#61, 2015 ABQB 51; St Paul (County) v St Paul (County), 2008 ABQB 284; Danielson v  
Calgary (City of), 2004 ABQB 783; and Bellerose v Patenaude, 2004 ABQB 706. None of these  
cases deal with the somewhat unique “irregularities” alleged in the present case.  
[29] The jurisprudence highlights the need to respect the LAEA’s requirements and reveals  
that elections will be quashed when they are conducted in ways that significantly interfere with  
people’s right to participate in the electoral process. Such interference will not be tolerated.  
However, when allegations of irregularities are unsubstantiated or when those irregularities are  
mere informalities or could not have impacted the results, then the elections will be upheld.  
FACTS AND EVIDENCE  
[30] In support of their application to have the Ward 6 Trustee election invalidated, the Board  
provided affidavit and oral evidence from Mr. Douglas Aird, Secretary Treasurer and Returning  
Officer of the Northland Board Trustee election; Ms. Martina Merrier, head custodian at  
Mistassiniy School; and Ms. Stephanie Sutherland, Director of Student Services for the  
Northland School Division and Deputy Returning Officer for the Ward 6, Mistassiniy School  
Polling Station on the day of the election. In addition, affidavit evidence only was provided by  
Mr. Leonard Mineault, a Ward 6 voter. The unsuccessful Ward 6 Trustee candidate, Chief Silas  
Yellowknee, gave brief oral testimony at the hearing, as did the successful Ward 6 candidate,  
Mr. Auger.  
[31] The evidence was not substantially in dispute; however, I was asked to draw inferences  
with respect to a number of facts and assertions. In the summary that follows, I have noted the  
instances in which I inferred or made a finding of fact.  
[32] Mr. Aird’s evidence is set out in a lengthy affidavit, sworn November 29, 2021. He  
provided detailed evidence in the following areas:  
Creation, purpose and role of the Northland School Division  
[33] Located in Northern Alberta, Northland School Division covers a large geographic  
distance of approximately 288,347 square kilometres. Northland School Board operates twenty-  
one local schools. Most of these school operate in remote areas. Some are located in  
municipalities, but many are located in First Nations communities and Metis settlements. Of the  
School Board’s two thousand plus students, 95% are Indigenous children.  
History and evolution of Northland School Division governance from 1987 to present  
[34] Given the evidence regarding potential confusion on the part of voters based on past  
voting practices, it is useful to review Mr. Aird’s evidence regarding the history of the Northland  
School Division governance system.  
[35] From 1983 to 2010, the Northland School Division governance systems was community,  
rather than Ward based. Local School Board Committee members were elected to each Local  
School Board Committee, with elections taking place at each Local School. These Committees  
Page: 8  
were made up of three to five members. The Chair of each Committee sat as a Trustee on the  
Northland School Board. In total, there were 23 School Trustees.  
[36] Regardless of whether a voter lived in Wabasca or Demerais, they were able to vote in  
the Local School Board Committee Elections at either, or both Mistassiniy School in Desmarais  
or St. Theresa school in Wabasca.  
[37] In 2010, the Northland School Board was dissolved, and the Government of Alberta  
appointed one Official Trustee to oversee the entire Northland School Division. Local School  
Committee elections continued to be held, though the Chairs of no longer sat as Trustees.  
Transition to the Trustee Election Ward System in October of 2017, focusing on Wards 6  
and 7  
[38] In 2017, Alberta reinstated the Northland School Board for the Northland School  
Division. The first election took place on October 16, 2017. Eleven Wards were created within  
the Division, with one trustee to be elected in each ward. Local School Board Committees were  
discontinued. This meant that, in some wards, more than one local community was included.  
[39] Under the 2017 ward system, Ward 6 and Ward 7 were adjacent to one another. Ward 6  
was comprised of lands including the communities of Desmarais and Sandy Lake. Ward 7 was  
comprised of the communities of Wabasca and Chipewyan Lake.  
[40] In 2017, the Trustee for Ward 6, Chief Yellowknee, won by acclamation. While the  
evidence on this point was not entirely clear, it appears that the Trustee for Ward 7 was also  
acclaimed in 2017 since no vote was held in either Ward.  
[41] In 2020, the ward boundary between Wards 6 and 7 was further adjusted so that it would  
follow a clear boundary (Highway 813 and other roads) and the number of School Board  
Trustees was reduced from 11 to 10.  
[42] Ward 7 is still comprised of lands within the communities of Wabasca and Chipewyan  
Lake (Bigstone Cree Nation) and includes St. Theresa School. Ward 6 now includes the  
communities of Desmarais and Sandy Lake (Bigstone Cree Nation), Peerless Lake and Trout  
Lake (Peerless Trout First Nation) and Little Buffalo (Lubicon Lake Band Woodland Cree First  
Nation) and includes Mistassiniy School (Desmarais) and Pelican Mountain School (Sandy  
Lake).  
[43] Following these changes, a new “2021 School Trustee Election Ward Map” was  
produced, which could be relied on by voters and Election Staff to clarify Ward boundaries and  
voter eligibility. Eligible voters are required to vote only at the polling station or stations located  
within their Ward.  
Preparation for the October 2021 Ward 6 Trustee Election  
[44] Evidence regarding preparations for the election was also provided by Mr. Aird.  
Page: 9  
[45] The 2021 School Trustee Election for Northland School Division took place on October  
18, 2021. In preparation for the Election, Mr. Aird oversaw the Election Notice requirements in  
his role as Returning Officer.  
[46] Concerned about the possibility of voter confusion over eligibility to vote in Ward 6 or  
Ward 7, Mr. Aird hired a professional cartographer to create a new Ward map, which was then  
made available to voters at Mistassiniy School on election day.  
[47] To facilitate the Election in Ward 6, two polling stations were assigned, one to each of the  
school located in that ward: Mistassiniy School (Demarais) and Pelican School (Sandy Lake).  
[48] As the Ward 7 trustee won by acclamation, no polling station was assigned in Ward 7. If  
the Ward 7 election had been contested than a polling station would have been set up at St.  
Theresa School (Wabasca).  
[49] Mr. Aird, as Returning Office, complied with the requirements of section 37(1) and 53(1)  
of the LAEA in ensuring polling stations were set up, and proper voter identification protocols  
were followed.  
[50] The Northern School Board has a duty to give notice of an election, pursuant to s 14(h) and  
26 of the LAEA. In order to meet this duty, the Division advertised the election in several ways,  
which are described in Mr. Aird’s affidavit at para 47. Advertising included:  
1. A notice published in the local newspaper ‘The Fever” which circulates in  
the Wabasca-Demarias region, on October 7, and October 14, 2021,  
indicating who was running for Trustee in Ward 6 (Incumbent Chief  
Yellowknee and Mr. Auger), and where people were to go if they wanted  
to vote in the Ward 6 elections (Mistassiniy School or Pelican Mountain  
School);  
2. A notice on the Northland School Division website providing Ward voting  
information for the 2021 School Board Election, posted October 13 – 18,  
2021. In addition to the information contained in the newspaper notice,  
this notice also included a link to the Ward map;  
3. A notice on the Northland School Division Facebook page providing  
Ward 6 voting information for the 2021 School Board Election, posted  
October 12 – 18, 2021, including a link to full election information page;  
4. Detailed election correspondence from the School Division sent home  
with each Mistassiniy School student, which included the following  
information:  
Attached to this letter are two electoral maps. One version outlines Ward 6  
(Desmarais and Sandy Lake) and the second version outlines Ward 6 and  
Ward 7 (Wabasca and Chipewyan Lake). If you live in the Ward 6  
boundaries, you are eligible to vote. Robin Guild was declared the Ward 7  
Trustee by acclamation in September.  
Page: 10  
i.  
Similar correspondence from the School Division sent home with each St.  
Theresa School student.  
ii.  
A notice on St. Theresa School’s Facebook page providing Ward 6 voting  
information for the 2021 School Board Election, posted October 12, 2021,  
repeating the information set out in the correspondence sent home with  
each child;  
iii. A notice on Mistassiniy School’s Facebook page providing Ward 6 voting  
information for the 2021 School Board Election, posted October 15 - 18,  
2021 repeating the information set out in the correspondence sent home  
with each child;  
iv.  
A notice on Career Pathways School’s Facebook page providing Ward 6  
voting information for the 2021 School Board Election, posted October 15  
- 18, 2021;  
v.  
Posters in Mistassiniy School and St. Theresa School advertising the Ward  
6 2021 School Board Election, including names of candidates and polling  
locations.  
[51] No information was provided to the Court with respect to what correspondence, if any,  
was posted by or within Pelican Mountain School or sent home with Pelican Mountain School  
students during the same time period. Similarly, no information was provided as to whether the  
new Ward 6 map was also provided for eligible voter reference at the Pelican Mountain School. I  
assume that it was.  
[52] No information was presented about any advertising, other than in the newspaper,  
provided for eligible voters from the Peerless Trout First Nation and Lubicon Lake Band  
Woodland Cree First Nation.  
Voting day  
[53] Evidence regarding the conduct of the election was provided by Ms. Sutherland.  
[54] Ms. Sutherland, acting as a Deputy Returning Officer, was present at the Mistassiniy  
School polling station throughout the day on October 18, 2021. She said that voters came in and  
went at a fairly steady pace throughout the day and she did not notice any significant lulls.  
[55] Ms. Sutherland further testified that upon entry to the school, each voter was shown the  
Professional Ward 6 and 7 map which clearly delineated the boundaries between the two Wards.  
Ms. Sutherland then relied on the potential voters to identify where they lived on the map in  
order to determine whether they were eligible to vote in Ward 6. !! voters indicated they did not  
live in Ward 6, and therefore were determined to be ineligible to vote in the Ward 6 election.  
[56] While no evidence was presented to show that these 11 individuals were Ward 7 voters, I  
find, in all the circumstances, it is likely that they were.  
[57] Ms. Sutherland gave further hearsay testimony that some of these 11 ineligible voters had  
indicated to her that they were confused as to why they could not vote at Mistassiniy School as  
they had previously been able to vote at either Mistassiniy or St. Theresa under the “old”  
Page: 11  
Committee System. Chief Yellowknee gave hearsay testimony to similar effect in relation to his  
mother and her caregiver Lois McCleod trying, but being unable to vote for him on election day  
after consulting the Ward map, although his sister was apparently able to vote.  
[58] Three witnesses gave evidence with respect to issues with the front door of Mistassiniy  
School being locked at certain points in the day on October 18, 2021.  
[59] Mr. Mineault filed affidavit evidence indicating that some time between 11 AM and  
noon, he tried to vote for School Trustee and found the front door locked. A student came and  
opened the front door for him and he was able to come into the school and vote.  
[60] Chief Yellowknee likewise testified that around 4 PM, he attended the school and could  
not get in the front door. There was a door on the left and he was able to pry that door open and  
enter the building to cast his vote.  
[61] Ms. Merrier, who has worked as a custodian at Mistassiniy school for 29 years, several of  
those as head custodian, testified that she worked a split shift the day of the election, meaning  
she worked prior to the children coming at approximately 8 AM, and then returned around 2 PM.  
She said that around 3:20 PM the day of the election, she heard knocking on the front door. She  
attended and let two women into the building. She checked the locking mechanism and saw it  
was sticking, so she unlocked it from the inside. She indicated that the door was open at 6:30 PM  
when she left for the day  
[62] Voting hours were from 10 AM to 8 PM that day. Ms. Merrier indicated there was an  
operational phone in the room in which the voting occurred, which was the drama room. Calls  
could be forwarded there from the front office. A person could not see the front doors of the  
school from the drama room.  
Results of the Ward 6 Trustee Election  
[63] According to Mr. Aird, Mistassiniy School has a student population of approximately 285  
students. Pelican Mountain School has a student population of approximately 16 students,  
[64] The tallied votes from the two polling stations in Ward 6 were as follows:  
CANDIDATE  
MISTASSINIY  
SCHOOL POLL  
PELICAN MOUNTAIN TOTAL VOTES  
SCHOOL POLL  
RECEIVED  
Thomas Auger  
Silas Yellowknee  
TOTAL VOTERS  
4
23  
7
27 (Winner by 5)  
15  
19  
22  
49  
30  
Page: 12  
Results of the official election of Municipal District of Opportunity.  
[65] The municipal election also took place on October 18, 2021. One of the polling stations  
for the MD of Opportunity was located in the community hall across the stress from Mistassiniy  
School.  
[66] Mr. Aird reviewed the official election results for the MD of Opportunity and noted that  
500-600 people attended to vote at the community center’s polling station, while only 30 voters  
attended at the Mistassiniy School polling station – only 19 of whom were actually eligible to  
vote at that polling station.  
ANALYSIS  
1. Did any acts or omissions constituting election irregularities occur?  
[67] As mentioned above, the Board alleged that the following acts or omissions constituted  
election irregularities sufficient to call into question the validity of the results:  
1) voters were confused as to whether they were eligible to vote at the Mistassiniy  
School polling station;  
2) on the day of the election, the Main Door to Mistassiniy School ‘self-locked’  
which may have prevented eligible voters from entering the school to vote; and  
3) there was a low voter turnout for the Ward 6 Trustee Election compared to the  
voter turnout for the municipal election held the same day at the Municipal  
District Polling Station.  
[68] I accept that these items are concerning.  
[69] I begin by considering the last asserted irregularity. I accept that there was a low voter  
turnout for the Ward 6 Trustee Election compared to the voter turnout for the municipal election  
the same day: 30 Ward 6 voters and 500-600 municipal voters. On its face, this statistic could be  
some evidence pointing to voter confusion. It is not, however, an “irregularity” as that term is  
used in the context of the LAEA.  
[70] I say it is “some evidence” because it remains an asserted statistic, albeit from a credible  
and reliable source in the person of Mr. Aird. However, this statistic is unsupported by other  
relevant context which might help give it meaning. For instance, how many eligible voters live in  
Ward 6? Of the 500-600 municipal voters, how many of them were also Ward 6 voters? What  
were the past levels of voter turn-out for election of members of Local School Committee  
members for Mistassiniy School, St. Theresa School or Pelican Mountain School as compared to  
past MD of Opportunity municipal elections? Did the 2021 election results reflect a marked  
departure from past elections, or has there always been a difference between voting in the school  
and municipal elections?  
[71] Without that additional evidence, I cannot conclude that the fact 500 people voted in the  
municipal election but only 30 voted in the Ward 6 Board election is proof that the Ward 6  
election was flawed or irregular. It has no real significance beyond being surprising, anomalous  
or odd.  
Page: 13  
[72] Turning next to the first asserted irregularity, I accept the evidence of some voters’  
confusion about where to vote. It is reasonable to infer that the 11 voters, including Chief  
Yellowknee’s mother, who were informed that they could not vote in the Ward 6 election were  
surprised and upset. The possibility that they might have been prevented from exercising their  
democratic right to vote is troubling, though, as will be discussed below, no such interference  
actually occurred. An act or omission by the Board in running the election that resulted or could  
have resulted in Ward 6 voters being confused and thereby disenfranchised would constitute an  
irregularity, which could impact on the results of the election and thereby render it invalid  
(Marquette and Skaret). However, confusion about where to vote can only constitute an  
“irregularity“ if the Board, as overseer of the election, caused or significantly contributed to that  
confusion.  
[73] The Board’s evidence with respect to preparing for and running the Ward 6 and 7  
elections did not reveal any such acts or omissions; in fact, the opposite is true. Anticipating that  
Ward 6 and Ward 7 voters might be confused because of past practices and changes in Ward  
boundaries, the Board took ample and reasonable steps to prevent voter confusion, including  
sending targeted and general letters, paying for public advertisements, and hiring a special  
mapmaker. Significantly, the Board did not suggest any alternative or additional steps that could  
have been taken to prevent voter confusion, nor did the Board suggest that the steps taken were  
insufficient.  
[74] The Board was entitled to change Ward boundaries and voting locations. Such changes  
may indeed have resulted in voter confusion for Ward 6 and Ward 7 voters. Perhaps the low  
voter turnout for the Ward 6 election relative to the municipal election is some evidence of that  
confusion. But, where the Board exercised due diligence in advising voters of the changes, and  
prepared and ran the election in keeping with the requirements of the LAEA, the Board can not  
be held responsible for that confusion.  
[75] Considering all the evidence in this case, I find that the Board exercised due diligence in  
advising voters of where to vote, how to vote, what Ward they should vote in, and who the  
candidates were in their Wards.  
[76] Evidence of voter confusion came in the form of hearsay evidence from Ms. Sutherland  
and Chief Yellowknee. They testified that some Ward 7 voters thought they were Ward 6 voters,  
and could vote at Mistassiniy School. They were advised by Ms. Sutherland that they could not.  
Those Ward 7 voters were not actually disenfranchised or prevented from voting as a result of  
showing up at the Ward 6 polling station: they did not need to proceed to another location to  
exercise their right to vote because the Ward 7 candidate won by acclamation.  
[77] Importantly, no evidence was provided of any eligible Ward 6 voter being unable to cast  
a vote the day of the election – i.e. there was no evidence that, because of confusion about where  
to vote, they attended and attempted to vote at St. Theresa School in Ward 7, where a polling  
station had been located in the past but where there was no polling station on election day  
because of the acclamation.  
[78] There was no evidence provided of any Ward 6 voter, or any other person trying to  
contact the School Board, Mistassiniy School, or St. Theresa School the day of the election, or at  
Page: 14  
any other time, because they were confused about the new Ward boundaries, or confused about  
where to cast their vote or complaining that they had tried to case a vote in either Ward 6 or  
Ward 7 but had been unable to do so.  
[79] Given the history of School Board governance over the past 30 years, it is reasonable to  
infer that voters living in the affected areas might have been confused about what Ward they  
currently lived in, who they were voting for and where they were to cast their vote. However, I  
have found that the Board took diligent and reasonable steps to advise potential voters of the new  
Ward boundaries, polling stations and candidates. There is no evidence showing that eligible  
Ward 6 voters did not cast their vote in the Ward 6 election because they were confused.  
[80] The Board has not met its onus of proof that “voter confusion” prevented eligible Ward 6  
voters from casting their vote, therefore, the Board cannot meet its burden of proof that any  
irregularity related to voter confusion in fact occurred.  
[81] Finally, I turn to the third asserted irregularity of eligible Ward 6 voters having been  
prevented from casting their vote due to being locked out of the polling station. Clearly, a local  
authority is required to provide a polling station in a manner that can reasonably accommodate  
the voters: Bowerman v Bidlock (1993), 1993 6991 at para 11, 137 AR 388  
(QB). Evidence on this point was provided by three unimpeached, credible witnesses who  
testified that the main door to Mistassiniy School was locked at various times during voting day.  
On its own, this is very troubling evidence, and could lead to a reasonable inference that other  
people may also have been locked out that day, casting doubt on the proper administration of the  
election.  
[82] However, the two eligible voters who gave that evidence (Chief Yellowknee and Mr.  
Mineault) also indicated that they eventually gained entry to the school and were able to cast  
their vote. In other words: the front door was locked, but they were not locked out or prevented  
from voting because of that fact. The third witness, Ms. Merrier the school custodian, testified  
that when she noticed the door was locking automatically, she took steps to fix it. In other words:  
the door was locked, but it did not stay locked.  
[83] Furthermore, Ms. Sutherland’s evidence was that there had been a steady flow of voters  
at the voting station throughout the day. If eligible voters were locked out, then I would have  
expected there to be periods of time during the day when no one came in to vote. Further, there  
was no evidence that anyone at the School or the Board offices received inquiries or complaints  
from anyone either that day or afterward about being locked out of Mistassiniy School. If voters  
had been locked out, I would have expected them to call the school or the Board to complain.  
[84] The Board presented evidence of troubling issues with the front door of the Mistassiniy  
School. However, it would be speculative to infer from the evidence presented that eligible  
voters had been prevented from gaining access to the school and thereby prevented from voting.  
The Board did not present evidence from any eligible Ward 6 voters who had in fact been  
prevented from voting on election day because they had been locked out of Mistassiniy School.  
The mere possibility that someone might have been locked out and therefore unable to cast a vote  
does not rise to the level of establishing an “irregularity”, as that term is used in the LAEA. The  
Page: 15  
Board did not meet its obligation to establish the alleged irregularity based on “clear, relevant  
evidence”.  
[85] Since the Board has not established any “irregularities” within the meaning of the LAEA,  
it is not necessary to consider whether Mr. Auger has met has burden of establishing that the  
election was conducted substantially in compliance with the LAEA despite the irregularities, and  
that the results of the election were not materially affected by the irregularities. Even if the  
problem with the Mistassiniy School‘s self-locking door did constitute an irregularity, the  
evidence surrounding that problem leads to the conclusion that it is an insufficient basis to  
overturn what was otherwise a validly conducted election.  
[86] In sum, I am satisfied that the election in this case was run in compliance with the LAEA.  
The 49 votes that were cast reflect the will of the 49 people who turned up to cast their vote for  
either Chief Yellowknee or Mr. Auger on election day, and their will should be respected. The  
final tally was 27 votes for Mr. Auger, and 22 for Chief Yellowknee. The close margin in this  
case illustrates the maxim that every vote counts (Vogel).  
CONCLUSION  
[87] The Board has pointed to several anomalous occurrences during the Ward 6 School  
Trustee Election on October 18, 2021. On first glance, these are concerning. However, to cast the  
validity of an election into doubt, the LAEA requires the applicant to first establish that  
“irregularities” occurred. The items which the Board presented fall short of constituting actual  
“irregularities” within the meaning of the LAEA. Accordingly, the Board’s application for a  
declaration that the Ward 6 School Trustee Election is invalid is denied. The election results  
stand.  
[88] The parties will bear their own costs.  
Heard on the 17th day of March, 2022.  
Dated at Peace River, Alberta this 5th day of July, 2022.  
Justice Friesen  
J.C.Q.B.A.  
Page: 16  
Appearances:  
Teresa Haykowsky  
McLennan Ross LLP  
for the Applicant  
Thomas Auger  
Self-Represented Litigant  
for the Respondent  


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