Lewis v Gitxaala Nation

The applicant was elected chief councillor of Gitxaala Nation’s governing council by a margin of thirteen votes. Various members of Gitxaala Nation appealed the election result on the grounds that the mail-in ballots were improperly handled (three unopened ballots were found in the band office), the ballot featured a withdrawn candidate’s name (six electors voted for the withdrawn candidate), and there was a failure to update electors’ addresses (four people did not receive their ballot). The Gitxaala Justice Tribunal’s inquiry determined that thirteen ballots had errors that could have influenced the election’s outcome. Since the applicant won by thirteen votes, the tribunal allowed the appeal and ordered a new election.

In its analysis, the Court referred to the Gitxaala Nation Custom Election Code which establishes the tribunal’s roles, responsibilities and ability to investigate such matters. The Court determined that the standard of review for assessing the decision of the tribunal in this case was reasonableness. Accordingly, the tribunal’s decision-making process must be justified, transparent and intelligent, must fall within an acceptable range of outcomes, and be defensible, both factually and legally.

The applicant argued the tribunal had acted in a procedurally unfair manner by excluding him from its investigation. However, the Court agreed with the tribunal that including him would have been unhelpful to both the investigation and its ultimate determination. The applicant also argued that the tribunal had erred by not reading the unopened ballots that were discovered after the election. The Court rejected this arguments as well, finding that the election code allowed for an appeal if an error was found that might have affected the outcome of an election; the Court noted that there was no provision requiring the tribunal to definitively determine if the election outcome was, in fact, affected.

The applicant further submitted that the allegedly withdrawn candidate whose name still appeared on the ballot had not actually withdrawn from the election. Contrary to this position, the Court accepted evidence that established as fact that the candidate had withdrawn prior to the vote, thus supporting this part of the tribunal's decision. In regards to the four voters that did not receive their ballots, the applicant argued that further investigation by the tribunal was necessary in order to determine whether this had been the fault of the electoral officer, due to use of an incorrect address or caused by some other issue. The applicant also noted that more than just four electors who had requested mail-in ballots claimed not to have received them, arguing that the tribunal had failed to undertake an adequate investigation of this issue before deciding the matter. The Court found that the tribunal had undertaken a fair and reasonable level of investigation and it was reasonable for the tribunal to have ceased its investigation as soon as it found that the number of electors affected was the same number as the margin of victory.