Foreign-Based Organization Not Added As Party To First-Past-The-Post Court Challenge

• Law Firm: Gardiner Roberts LLP
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Civil Law
• Author: Mr Stephen Thiele
• Published date: 05 May 2023

Democracy is not easy. Canada's first-past-the-post electoral system means that the candidate with the most votes in an electoral district is declared the winner even if the candidate does not obtain a majority of the votes and that a majority government can be formed without the winning party securing more than 50 percent of the popular votes of all ballots cast in an election. While this system has enabled the formation of stable governments, it has also been repeatedly criticized by specialized interest groups who advocate that proportional representation is a fairer electoral system because it permits each ballot to have meaningful input in the composition of the representatives who ultimately govern us.

Currently, Fair Vote BC has brought a constitutional challenge to the first-past-the-post electoral system. Fair Vote BC contends that section 313 of the Canada Elections Act (the "Act"), which legislatively, enshrines this electoral system, breaches sections 3 and 15(1) of the Charter of Rights and Freedoms because it violates the rights to meaningful participation, fair and legitimate elections, and effective representation.

Section 313(1) of the Act directs a returning officer to declare elected the candidate who obtained the largest number of votes after the sixth day that follows the completion of the validation of election results.

Given the issues raised by Fair Vote BC's constitutional challenge, unsurprising other organizations involved in the debate about the way winning candidates are chosen and governments are formed wanted to intervene in the application, including the Electoral Reform Society (UK) ("ERS UK"). ERS UK wanted to intervene as an added party in the application, and only in the alternative as a friend of the court.

In Fair Voting BC v. Canada (Attorney General), 2023 ONSC 2182 (CanLII), the court rejected ERS UK's desire to be allowed to intervene as an added party. The court also rejected ERS UK's requests to file additional affidavit evidence in the proceeding and to include a "record of secondary resources" in its Book of Authorities.

Under rule 13 of the Rules of Civil Procedure, a court has the discretion to permit a person to intervene in a proceeding either as a friend of the court or as an added party. More specifically, rule 13.01(1) provides that a person can be added as a party if the person:

a) has an interest in the subject matter of the proceeding;

b) that the person may be adversely affected by a judgment in the...