Vous êtes sur la page 1sur 15

1

Decision of the Judicial Board: Gummett v Elections Committee May 8, 2013

Gummett v Elections Committee 2013 DSUJB 1 Dalhousie Student Union Judicial Board Halifax, Nova Scotia Hunter Parsons (Chair), Chelsey Roy and Patrick Cashin (Members) Heard: April 15, 2013 Decision: May 8, 2013

Upon Submissions of: Josh Gummett, Appellant Thomas Hansen, agent for the Respondent, the Dalhousie Student Union Elections Committee Ramz Aziz, Respondent

Decision of the Judicial Board rendered by: Hunter Parsons, Chelsey Roy and Patrick Cashin

Background [1] Josh Gummett (the Appellant) and Ramz Aziz (Mr. Aziz) ran as candidates for the position of Dalhousie Student Union Vice President Internal during March 2013 (the Election). Prior to the announcement of the Election results, the Appellant made a number of complaints to the Dalhousie Student Union Elections Committee (the Elections Committee) regarding the conduct of the Mr. Aziz during the course of the campaign. On March 21, 2013, the Elections Committee met to discuss the Appellants complaints. At that time, the Elections Committee decided that Mr. Aziz did not violate any of the rules in the Elections Policy of the Dalhousie Student Union (the Elections Policy) and did not fine Mr. Aziz. [2] The Appellant informed the Elections Committee that he would like to appeal their initial decision. Pursuant to s. 13(f)(b) of the Elections Policy, the Elections Committee met on March 30, 2013 to hear the appeal. On appeal, the Elections Committee determined that Mr. Aziz committed two Elections Policy violations and levied two fines against him, totalling $40. [3] Pursuant to s. 13(f)(c) of the Elections Policy, the Appellant brought an application to the Dalhousie Student Union Judicial Board (the Judicial Board) on April 6, 2013. The Elections Committee was immediately added as a Respondent, and they filed their pre-hearing submissions pursuant to s. 17 of the Judicial Board Regulations (the Regulations) on April 12, 2013. In order to receive a full adjudication of the issues in this appeal, the Judicial Board decided to add Mr. Aziz as a Respondent on April 11, 2013. Mr. Aziz filed his pre-hearing submissions with the Judicial Board on April 13, 2013. [4] Issues [5] In the Appellants application to the Judicial Board, he identified five issues. On April 14, 2013, the Judicial Board issued a pre-hearing memorandum to all of the parties that characterized the issues on appeal. Upon a motion from Mr. Aziz at the start of the hearing on April 15, 2013, issue three was re-characterized. The Appellant and the Elections Committee, represented by Thomas Hansen (Mr. Hansen), consented to the amendment as proposed by Mr. Aziz. [6] The issues in this appeal are as follows: (1) Mr. Azizs signs outside of the Student Union Building: (a) Was the warning issued by the Elections Committee immediately complied with? The Judicial Board held a hearing for this matter on April 15, 2013.

(2)

Mr. Azizs chalking outside of the period prescribed by the Elections Committee:

(a)

Did the Elections Committee err in issuing Mr. Aziz a $20 fine for his failure to remove chalk after the Elections Committees warning? Did Mr. Aziz gain an illegitimate advantage in the election for Dalhousie Student Union Vice President Internal by failing to comply with the Election Committees warning?

(b)

(3)

Campaigning after the campaign period: (a) Was Sharique Haider Khan (Mr. Khan) a campaign worker, as defined by the Elections Policy, and if so, was he campaigning after the postcampaign period began by having his Facebook profile picture and cover photo depicting support for Mr. Aziz after the campaign period ended?

(4)

Mr. Azizs post in the Dalhousie Science Societys Facebook page: (a) Is a student societys Facebook group a society resource as defined by the Elections Policy? Is Mr. Azizs title of DSS Treasurer a society resource as defined by the Elections Policy?

(b)

(5)

Bias/ Impartiality on behalf of the Elections Committee: (a) A candidate for a different position in the election, Matthew FitzGeraldChamberlain, received a fine from the Elections Committee for inappropriate comments that were made during the election. This fine was later overturned on appeal. Mr. Aziz received a warning from the Elections Committee in the first instance for his signs outside of the Student Union Building. Does this constitute impermissible bias on behalf of the Elections Committee?

Position of the Parties (i) The Appellant

[7] For issue one, the Appellant argues that Mr. Aziz did not immediately comply with the Election Committees request to take down three signs that he put in the planter outside of the Student Union Building. He alleges that the signs were left up for several hours, and as such, Mr. Aziz gained an unfair advantage in the election. The Appellant asks the Judicial Board to reconsider the Election Committees decision not to fine Mr. Aziz for this issue. [8] For issue two, the Appellant alleges that Mr. Aziz failed to comply with the Elections Committees warnings to remove his chalking on campus. The Appellant argues that the $20 fine that was ultimately issued by the Elections Committee to Mr. Aziz is insufficient.

[9] For issue three, the Appellant alleges that Mr. Khan was an unregistered campaign worker for Mr. Aziz. He argues that, by Mr. Khan using his Facebook profile and cover pictures to depict support for Mr. Aziz after the campaign period ended, Mr. Khan was acting as a campaign worker for Mr. Aziz in violation of the Elections Policy. [10] For issue four, the Appellant argues that a student society Facebook page is a society resource as defined in the Elections Policy. He alleges that Mr. Aziz posted in the Dalhousie Science Societys Facebook page, and in doing so, utilized a society resource in violation of s. 13(c)(g) of the Elections Policy. [11] For issue five, the Appellant alleges that the Elections Committees practice of fining some candidates in the first instance for a violation of a section of the Elections Policy while issuing a warning to other candidates for a different breach constitutes impermissible bias or lack of impartiality. He argues that the Elections Committee was biased in their decision making, and for this reason, their decisions regarding his complaints should be set aside. (ii) The Respondents

[12] For issue one, the Elections Committee says that, on March 12, 2013, Mr. Hansen noticed that Mr. Aziz had three campaign signs in the planter outside of the Student Union Building in violation of a rule articulated at the Candidates Caf at the start of the Election. Mr. Hansen says that he asked Mr. Aziz to remove the signs and that Mr. Aziz immediately removed the signs so as to be compliant with the relevant rule. Since the three signs were only up for a short period of time, and since Mr. Aziz ultimately complied with the rule, the Elections Committee argues that a fine is not warranted in this situation. [13] For issue one, Mr. Azizs submissions are largely the same as the Elections Committee.

[14] For issue two, the Elections Committee says that, during the Candidates Caf, Mr. Hansen told all candidates that existing chalk could be left up, but no additional chalking could be done after March 15, 2013. On March 15, 2013, there was a snowstorm during the morning/ early afternoon in Halifax, Nova Scotia, which washed away much of the existing chalk. On the morning of March 16, 2013, a member of the Elections Committee saw that there was a great deal of fresh chalk promoting Mr. Aziz on campus. At that time, Mr. Aziz informed the Elections Committee that the chalking was done after the snowstorm on March 15, 2013. After receiving a complaint from the Appellant on this issue, the Elections Committee requested that Mr. Aziz remove all of the fresh chalking so as to ensure an equal playing field. Mr. Aziz was asked to remove the chalk twice, but he did not comply with the request. The Elections Committee initially issued a warning to Mr. Aziz for this incident. Following the Elections Committees appeal meeting on March 30, 2013, they issued a $20 fine to Mr. Aziz since he was asked to remove the chalk, and he subsequently agreed to do so, but ultimately failed to comply with this request. The Elections Committee argued that this conduct warrants a $20 fine.

[15] For issue two, Mr. Aziz argued that all fresh chalk was put up before the March 15, 2013 deadline, and therefore, he should not have been fined for the alleged violation in the first place. He argues that, since he put up chalk in compliance with the edict at the Candidates Caf, he should not have been fined. However, Mr. Aziz says that he did not appeal the Elections Committee decision since the limitations period for an appeal has since expired. Further, Mr. Aziz argues that he did attempt to comply with the Elections Committees request to clean up the fresh chalk on March 16, 2013 and that he cleaned up as much as he could. [16] For issue three, the Elections Committee argues that Mr. Khan is not a registered campaign worker for Mr. Aziz, and accordingly, the fact that Mr. Khan had his Facebook profile and cover pictures depicting support for Mr. Aziz was not worthy of a fine. [17] For issue three, Mr. Aziz says that Mr. Khan was not a campaign worker as defined in the Elections Policy. However, Mr. Aziz says that he instructed Mr. Khan to remove the Facebook pictures in question on two occasions, but he did not comply with this request. [18] For issue four, the Elections Committee believes that a Facebook group is not a society resource as defined in the Elections Policy since Facebook groups are available for everyone to join. The Elections Committee argues that a Facebook group page is analogous to a candidate attending a society meeting, which is a practice that the Elections Committee has long deemed ok. Further, the Elections Committee argues that a candidates society title is not a society resource, but rather, it is a description of a position and the candidates experience. Society titles are not owned by the society, but rather, earned by the individual who has the title. The Elections Committee argues that using ones society title during the course of an election is a permissible practice, and accordingly, it does not warrant a fine. [19] For issue four, Mr. Azizs submissions are largely in agreement with the Elections Committees submissions. [20] For issue five, the Elections Committee states that they have treated every candidate in the Dalhousie Student Union elections fairly, and that no candidate has been treated unjustly. [21] For issue five, Mr. Aziz argues that the Elections Committee did not exhibit bias in his favour since he has already received two fines totalling $40. Mr. Aziz says that this is inconsistent with preferential treatment, and that generally speaking, all candidates were treated fairly by the Elections Committee. Summary of the Judicial Boards Decision (i) Issue One

[22] The Judicial Board upholds the Elections Committees decision on this issue. The evidence supports the Elections Committees determination that Mr. Aziz immediately complied with Mr. Hansens request to remove the three signs in the planter outside of the Student Union

Building. The Elections Committees decision to not issue a fine based on this finding of fact is within their discretion, and since their discretion was not improperly exercised, there is no basis for the Judicial Board to overturn their decision on this issue. (ii) Issue Two

[23] The Judicial Board upholds the Elections Committees decision on this issue. Given the difficulty of ascertaining the truth of when chalking exactly took place, the Elections Committee properly exercised their discretion by requesting that Mr. Aziz remove his chalking in order to allow for an equal playing field. Mr. Aziz stated that he scrubbed as much as [he] could in his attempt to remove his chalk, but nonetheless failed to remove it all. The $20 fine levied by the Elections Committee was not unreasonable. Further, the evidence presented at the hearing suggests that the snowstorm ended early enough in the evening to allow at least two candidates to apply new chalk before the end of the campaign period at midnight on March 15. This opportunity was equally available to the Appellant; therefore, it cannot be said that Mr. Aziz gained an illegitimate advantage by having fresh chalk up after the March 15 snowstorm. (iii) Issue Three

[24] The Judicial Board allows the appeal on this issue in part. Based upon the evidence adduced during the hearing, Mr. Khan was a campaign worker for Mr. Aziz despite the fact that he was not so registered. Mr. Khan helped design Mr. Azizs campaign website, and on a balance of probabilities, this meets the definition of campaign worker pursuant to the definition in the Elections Policy. As Mr. Khans Facebook profile visibly promoted Mr. Aziz after the end of campaigning, Mr. Khan did engage in post-campaigning. However, as Mr. Aziz has made out the available defense of due diligence, the Judicial Board finds that he is not liable for the actions of Mr. Khan, and accordingly, the Judicial Board will not issue a fine. (iv) Issue Four

[25] The Judicial Board upholds the Election Committees decision on this issue. A Facebook group, particularly one with an open membership where members are able to post freely, does not come under the definition of society resource as outlined in the Elections Policy. Further, a society title, such as the one enjoyed by Mr. Aziz during the election, does not meet the definition of society resource in the Elections Policy. A society resource requires elements of materiality and exclusive ownership, such that the use of the resource would provide an unfair advantage to the society member running as a candidate. Neither the Facebook group nor Mr. Azizs title provides any such unfair advantage. (v) Issue Five

[26] Based on the evidence presented at the hearing, the Elections Committee did not suffer from a reasonable apprehension of bias in their treatment of the Appellants complaints. A

reasonable person, reasonably informed of the situation would not have a reasonable apprehension of bias based upon the evidence presented at the hearing. Mr. Gummett did not meet his burden of showing that it was more likely than not that the Elections Committee suffered from a reasonable apprehension of bias. A reasonable person, reasonably informed, would not view an offhand comment made by a member of the Elections Committee as giving rise to a reasonable apprehension of bias. Further, the fact that the Elections Committee sometimes issues a warning in the first instance for a violation of the Elections Policy and sometimes issues a fine in the first instance is not an indication of bias. Rather, this is an example of the Elections Committee exercising its discretion in accordance with the jurisdiction it enjoys under the Dalhousie Student Union Constitution. There is nothing on the record before the Judicial Board to suggest that this discretionary exercise was tainted by bias. Accordingly, the appeal for this issue is dismissed. Reasons for Decisions (i) Issue One

[27] The first issue in this appeal asks whether the warning issued by the Elections Committee to Mr. Aziz regarding the signs in front of the Student Union Building was immediately complied with. The Judicial Board heard a great deal of evidence and argumentation from the parties regarding the length of time that the signs were up. However, in our view, this line of argument speaks more to the reasonableness of the Election Committees decision to warn and not fine Mr. Aziz, rather than the immediacy of his compliance with the request. The Judicial Board finds that the Elections Committee did not act unreasonably by determining that the warning was complied with immediately. Since the Elections Committees decision falls within a range of reasonable outcomes, the Judicial Board must show deference to this decision, and accordingly, the first issue in this appeal is dismissed. [28] The evidence presented to the Judicial Board indicates that, despite knowledge of the relevant rule to the contrary, Mr. Aziz placed three signs in the planter outside of the Student Union Building. Whether or not the signs were fixed in the planter is not consequential as the mere presence of the three signs is a violation of the relevant rule. Prima facie, this is sufficient to warrant sanction. [29] The relevant aspect of this issue is no whether Mr. Aziz violated the relevant rule, but rather, whether he complied with Mr. Hansens request to remove the signs immediately. The Judicial Board heard evidence from the Appellant that indicates the signs were in the planter with neither Mr. Hansen nor Mr. Aziz present. Despite the Appellant submitting a photograph of the signs in the planter, it remains unclear if the unattended signs were seen before or after Mr. Hansen asked Mr. Aziz to take them down. [30] The Appellants submissions demonstrate that the signs were up for a period of time no less than one hour, and that they were unattended for a period of time. However, the Appellants

submissions did not demonstrate, on a balance of probabilities, that the signs remained in place after Mr. Hansen issued the warning and asked Mr. Aziz to remove them. [31] The Appellant is required to demonstrate that, in fact, the signs were not removed from the planter immediately. As a finding of fact, the Elections Committee found that the signs were removed immediately. As established by the Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 (Dunsmuir), a finding of fact by an administrative decision maker is presumptively subject to the reasonableness standard of review. A court reviewing a finding of fact by an administrative decision maker will be deferential to the finding so long as it falls within a range of reasonable outcomes. The Appellant was unable to demonstrate that the Elections Committees finding of fact of this issue was unreasonable, and since the Judicial Board must be deferential to the Elections Committees decision, we uphold the finding that the signs were immediately removed. The appeal on issue one is dismissed. [32] The bulk of the partys submissions did not concern the immediacy of the signs removal, but rather, the Election Committees decision to not fine Mr. Aziz for violation of the rule in the first instance. While this is technically not at the core of the issue on appeal, given the extensive submissions on this point, we will comment on this issue. The Elections Committee, and in particular Mr. Hansen as Chief Returning Officer, has discretion to interpret rules as necessary, as granted by the Elections Policy in s. 6(b)(e). The decision to issue a warning rather than a fine to Mr. Aziz for a violation of an elections rule was a discretionary one. In Dunsmuir, the Supreme Court of Canada established that a discretionary decision from an administrative decision maker is subject to the reasonableness standard of review. So long as the Elections Committee exercised its discretion appropriately, then a reviewing court, such as the Judicial Board, will apply a deferential approach to the resulting decision. [33] The Appellant did not present evidence that shows the Elections Committee exercised its discretion improperly. The factual record indicates that the signs were up for no more than one or two hours, and were all in one location. Thus, the effect of three signs versus one was minimal. The Appellant submitted that the two hours that Mr. Aziz had the three posters up gave Mr. Aziz an unfair advantage. However, the Judicial Board did not hear any compelling submissions on the nature or extent of any advantage. Given the discretionary nature of the decision, the Election Committees decision to issue a warning and require immediate removal was reasonable, and accordingly, the Judicial Board will not overturn that decision. (ii) Issue Two

[34] The second issue on appeal is divided into two sub-issues. First, did the Elections Committee err in issuing Mr. Aziz a $20 fine for his failure to remove chalk after the Elections Committees warning? Second, did Mr. Aziz gain an illegitimate advantage in the Election by failing to comply with the Election Committees warning?

[35] On the first sub-issue, the Elections Committees decision to issue a $20 fine to Mr. Aziz was not unreasonable. The fine was the direct result of Mr. Azizs failure to comply with the Elections Committees request that he remove his chalking. This request was made following the Appellants complaint that the chalking was done outside the period prescribed by the Elections Committee. Since it was unclear at the time whether the chalking happened before the March 15th deadline or after, the Elections Committees request for removal was a good faith attempt to level the playing field during the voting period. This is well within its discretionary rule-making power, supra, and consistent with the purpose of the Elections Policy in s. 1. The core of this sub-issue is not whether Mr. Aziz in fact chalked outside the acceptable period. Since the Elections Committees decision was a discretionary one, and subject to the reasonableness standard of review, the core of this sub-issue is whether the $20 fine was within a range of reasonable outcomes. The Judicial Board did not hear evidence or submissions from the parties that suggests this decision was unreasonable. Therefore, we dismiss the appeal on this sub-issue. [36] Mr. Aziz submitted that a typical campaign strategy is to mix chalk with water before applying it, making it more difficult to remove. He used this strategy during his campaign, which made it nearly impossible to remove his chalking at the request of the Elections Committee. Mr. Aziz provided little evidence as to the methods he employed in his attempts, beyond stating that he used a Scotch Brite pad and water to scrub the chalked surfaces. Despite his attempts, the chalk could not be removed, and the Elections Committee chose to impose a $20 fine as a result. It was within their discretionary power to make this decision. Since there is nothing on the factual record to suggest that this discretion was exercised inappropriately, the Judicial Board must be deferential to the decision to issue a fine to Mr. Aziz. [37] As for the size of the fine itself, the Appellant argued that it should have been higher as a result of Mr. Aziz having his chalk up for a full five days after the Elections Committees request. Given the deferential approach demanded by the reasonableness standard of review, we disagree. First, it must be re-emphasized that Mr. Azizs fine was a result of non-compliance with an Elections Committee request, not for illegal campaigning. Therefore, while s. 13(e)(g)(v) of the Elections Policy permits the Elections Committee to impose higher fines for gross violations of a post-campaigning nature, Mr. Azizs fine was not actually for postcampaigning and cannot be viewed in this light. Even if it could be, the fact that the chalk was up for 5 days would not warrant a higher fine because it would still amount to one incident. Section 13(e)(g)(iii) sets the mandatory fine at $20 per incident. [38] The fine imposed on Mr. Aziz was within the Elections Committees discretion pursuant to s. 13(e)(g)(v) of the Elections Policy. The Appellant did not show that the fine levied on Mr. Aziz was unreasonable. The facts show that Mr. Aziz rallied a team of campaign workers and attempted to remove his chalking as per the Committees request. He failed in his attempts, and accordingly, he incurred a fine. We fail to see anything particularly gross or egregious in Mr. Azizs conduct. This supports our determination that the Elections Committee exercised its

10

discretion in a reasonable way. Therefore, the Judicial Board will not disturb the amount of the fine. [39] With regard to the second sub-issue, we find that Mr. Aziz did not gain an illegitimate advantage by failing to comply with the Elections Committees request. The Appellant submitted that five days of non-compliance could have swayed the 272 voters who separated himself and Mr. Aziz in the election. With respect, this bare assertion, without more, is insufficient to prove that Mr. Aziz enjoyed an unfair advantage in the election. Short of interviewing all 272 voters, there is no way to prove any of them even saw the chalk, let alone were swayed by it. Furthermore, candidates in the Dalhousie Student Union election utilize a number of campaign strategies, including creating websites, promotion on Facebook, giving oral presentations in classrooms, and placing posters in school buildings across campus. In order to conclude that Mr. Azizs chalk swayed 272 voters in his favour, we must accept the proposition that all other campaign strategies employed by the Appellant and Mr. Aziz proved equal. This proposition is simply unacceptable without complicated statistical evidence of voter decisionmaking. Therefore, while we can certainly agree with the suggestion that Mr. Azizs chalk could have swayed any number of voters, without more, we cannot accept that Mr. Aziz gained an illegitimate advantage in the Election as a result. (iii) Issue Three

[40] The third issue on appeal consists of three sub issues. First, was Mr. Khan a campaign worker? Second, if he was, did he engage in post-campaigning? And third, if he did, does the defense of due diligence save Mr. Aziz from liability? The Judicial Board has determined that the Elections Committee erred in its interpretation of Campaign Worker. When a correct interpretation is applied to the evidence adduced at the hearing, Mr. Khan is clearly a campaign worker, and did indeed engage in post-campaigning. However, Mr. Aziz has satisfied the Judicial Board on the defense of due diligence, and thus no liability shall accrue to Mr. Aziz for the actions of Mr. Khan. [41] The first sub-issue pertains to the appropriate interpretation of Campaign Worker. As established by the Supreme Court of Canada in Pezim v Superintendent of Brokers (British Columbia), [1994] 2 SCR 557, an expert administrative decision maker that interprets its home statute will be reviewed on the reasonableness standard. However, an administrative decision maker that is not considered to be expert will be subject to a correctness standard of review for an interpretation of its home statute. In Dunsmuir, the Supreme Court of Canada notes that the correctness standard is not deferential to the administrative decision makers decision. Although the interpretation of campaign worker relates to the Election Committees enabling policy, it cannot be said that the composition of the committee is expert. The Elections Committee is comprised of volunteer students who do not have any special expertise in student elections. Accordingly, the standard of review of this sub-issue is correctness. Therefore, if the Judicial Board arrives at a different interpretation of campaign worker than the Elections Committee

11

did, then we will substitute our interpretation over the Election Committees interpretation. The Elections Committee defined a campaign worker as someone who was registered as such with the CRO. However, the elections policy at s. 3(g) defines campaign worker as: Campaign Worker a person who has been asked by a candidate and has agreed to assist that candidate with campaigning in any capacity. A list of campaign workers must be submitted to the CRO prior to the commencement of the campaign period. (Emphasis added) An appropriate reading of the definition indicates that for someone to be considered a campaign worker, there are two requirements: (1) The candidate must ask the potential worker for their assistance (on the campaign); and (2) The worker must agree to assist the candidate with their campaign in some capacity. [42] The status of a person as a campaign worker is a question of fact, satisfied when the requirements are met on a balance of probabilities. The requirement that a list of campaign workers should be submitted to the Chief Returning Officer has no bearing on whether or not a person is, in fact, a campaign worker. We note here that there is no minimum amount of assistance required to become a campaign worker, and the ease with which a person can become a campaign worker could result in such large numbers of people becoming so. The inability of a candidate to determine whose actions he or she may be liable for could make the due diligence defense illusory at best. [43] In theory, failure to supply an accurate list of campaign workers could be an offense if the Chief Returning Officer should choose to exercise his or her discretion pursuant to s. 6(b)(f)(viii) of the Elections Policy. Since it was not argued before either the Elections Committee or Judicial Board that Mr. Aziz should be fined for failing to adhere to the Elections Policy requirement to submit an accurate list of campaign workers, we will not make a determination on this issue. A person can be a campaign worker pursuant to the Elections Policy regardless of whether they are on the list of registered campaign workers. [44] As the Elections Committee erred in its interpretation of campaign worker, on this issue we shall engage in a new analysis based upon the correct definition. It should be noted, the evidence before the Judicial Board is significantly different than that before the Elections Committee, and so even with the correct definition, it is unlikely that the Elections Committee could have reached an accurate result. [45] A correct interpretation of campaign worker reveals that Mr. Khan was indeed a campaign worker. It is unclear to what extent Mr. Khan assisted Mr. Aziz with his campaign; however, what is clear is that prior to the beginning of his campaign, Mr. Aziz asked Mr. Khan for assistance with his website. There is no minimum amount of assistance required to bring someone within the definition of campaign worker. Regardless of the actual work done by Mr.

12

Khan, he was asked by Mr. Aziz for help on the campaign website, and did indeed provide some assistance. Thus, Mr. Khan is a campaign worker, as defined. [46] Having determined that Mr. Khan is indeed a campaign worker, the Judicial Board asks whether he engaged in post-campaigning. The Elections Policy defines campaigning at s. 3(f) as advertising [] designed to influence voters. Here we also substitute our own interpretation of advertising, different from that of the Elections Committee. [47] The interpretation of advertising chosen by the Elections Committee is also different than the definition we adopt. The Elections Committee seeks to draw a distinction between supporting and campaigning in their submissions, however this distinction is not inherent in the definition of campaigning as laid out in the Elections Policy. The Elections Policy explicitly includes advertising in social media platforms. Advertising has been defined as the action of calling something to the attention of the public especially by paid announcements. (Merriam Webster Dictionary, sub verdo advertising (27 April 2013), online: <http://www.merriamwebster.com/dictionary/advertising>) Read in context, it can be described as any public notification of ones beliefs with intent to persuade others to vote in the same manner as the advertiser. [48] Defined as above, the question becomes did Mr. Khan engage in advertising? He described his cover photo, which remained the same despite requests from the Aziz campaign to change it, as a way of expressing support for a position. On a balance of probabilities, the Judicial Board finds that, by changing his cover photograph to support Mr. Aziz, this was designed with the intent of persuading others to vote for the candidate he supported. As this occurred even after the time at which campaign workers were required to cease campaigning, Mr. Khan engaged in post-campaigning, for which Mr. Aziz is strictly liable per Elections Policy s. 13(a)(e). [49] As a strict liability offense, candidates have the defense of due diligence at their disposal, which consists of two defenses. In R v Sault Ste Marie, [1978] 2 SCR 1299, at page 1299, the Supreme Court of Canada noted that the due diligence defence can be established in one of two ways: the defence of reasonable belief in a mistaken set of facts, or the defence of reasonable care. On the evidence submitted at the hearing, once Mr. Aziz was made aware of the offending cover photo and profile photo of Mr. Khan, his agents contacted Mr. Khan multiple times requesting its removal. The Appellant did not dispute this submission, and accordingly, the Judicial Board must accept Mr. Khans assertion on this point as a finding of fact. We find that, on a balance of probabilities, Mr. Aziz made all reasonable attempts to have Mr. Khan change his profile to be in conformity with the Elections Policy. As such, we find that Mr. Aziz has satisfied the requirements for the due diligence defense, and no liability shall be imposed on Mr. Aziz. (iv) Issue Four

13

[50] The fourth issue requires us to consider whether or not society Facebook groups or society titles amount to society resources, the use of which is prohibited by s. 13(c)(g) of the Elections Policy. The Appellant has expressed concern that Mr. Aziz, the treasurer of the Dalhousie Science Society (the DSS), posted a campaign message to the DSS Facebook group, referring to himself as DSS Treasurer in the process. The appellant argues that this violates the rule against using society resources in the course of an election by a candidate. [51] Section 3(k) of the Elections Policy defines resource as any material or asset which provides a benefit to a person or organization. Further, s. 13(c)(g) sets out examples of society resources: society funds, websites, email accounts and distribution lists. Taken together, these sections clearly indicate that society resources are things which provide an unfair advantage to a candidate who happens to be a member of that particular society. Understandably, such resources are forbidden. [52] An illustrative example of what constitutes a society resource would be where Candidate A, being a member of Society B, uses the button-maker owned by Society B to create buttons bearing her face, name, and/or campaign slogan to hand out to potential voters. Candidate As counterparts in the election, not being members of Society B, do not have access to a free buttonmaker, and therefore they are put at a disadvantage. Society Bs button-maker is clearly a society resource, and Candidate A would be in violation of s. 13(c)(g) by using it. [53] This example is helpful by demonstrating that a society resource requires, by definition, aspects of material benefit and exclusive ownership. These aspects are what give the society resource its usefulness, and justify its exclusion from campaigning by the Elections Policy. Where this categorization becomes complex is when the resources in question are of a more abstract nature. Section 13(c)(g) is of some assistance in this regard by enumerating certain nonphysical resources such as email accounts and distribution lists. However, it must be noted that this list is non-exhaustive and we now live in a world with Facebook groups, fan pages, and Twitter accounts. Many Dalhousie Student Union societies host such pages as a means of garnering interest and keeping in touch with members. Whether or not they constitute society resources as defined and prohibited by the Elections Policy was hotly debated before us at the Judicial Board hearing. [54] Given the evidence presented by all parties at the hearing, and in light of our own interpretation of the meaning of society resource, we find that neither the DSS Facebook group nor Mr. Azizs title as treasurer of that society constitute society resources. First, the societys Facebook group is an open group, meaning it is clearly visible by anyone with a Facebook account. While membership is limited in the sense that individuals must ask to join and be approved by an administrator, there is nothing to suggest that only society members are allowed to join. In other words, non-society members can theoretically be added as members of the group if, for instance, they merely have an interest in following the goings-on of the DSS. Furthermore, once a member is added any one of them can post to the group about any topic of

14

their choosing. While the administrator(s) of the group have the ability to delete messages after they have been posted, there is no pre-approval process. This is more commonly a characteristic of a discussion forum, rather than a distribution list. This lack of exclusivity and control negates any material benefit that the society would typically enjoy from a society resource. By way of comparison, a society distribution list is clearly a society resource because it is an asset that belongs to the society as it is comprised of a private, set list of members, and that the society executive alone is able to make use of. [55] Secondly, Mr. Azizs title as DSS Treasurer cannot be said to be either material or exclusive to the society. Rather, the title is both exclusive and materially beneficial to him, as an individual, in the same way as any other title or office that one would expect to find on a resume. Candidates in elections everywhere routinely refer to the titles they hold or have held as a means of bolstering their experience and credibility in the eyes of voters. We have not been made aware of any Elections Policy or rule of which this practice might run afoul. [56] In short, we uphold the Elections Committees decision that Mr. Aziz did not breach the Elections Policy by posting to the DSS Facebook group under his title of DSS treasurer. (v) Issue Five [57] The Appellant alleges that the Elections Committee acted with bias when they decided to give Mr. Aziz a warning in the first instance arising from the complaint regarding his chalking outside of the prescribed period. The Appellant argues that the fact that another candidate who is not a party to this appeal received a fine in the first instance is evidence that the Elections Committee gave preferential treatment to Mr. Aziz. The Elections Committee asserts that they treated every candidate fairly and in an even-handed manner during the election. Mr. Aziz points to the fact that he was fined $40 by the Elections Committee for his Elections Policy infractions as evidence that he was not the beneficiary of preferential treatment. [58] The Judicial Board dismisses the appeal on this issue as the Appellant has not established that the Elections Committee acted with impermissible bias. In administrative law, all boards and tribunals that make final decisions affecting an individuals rights, duties, or obligations owe that individual a duty of fairness. The duty of fairness requires that, inter alia, the decisionmaker acts in an unbiased and impartial manner. The standard for disqualifying bias was set out in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 by the Supreme Court of Canada. The onus is on the party alleging bias to prove, on a balance of probabilities, that a reasonable and fully informed person, viewing the matter realistically and having thought the matter through, would think it is more likely than not that the decision-maker, consciously or unconsciously, decided the issue unfairly. This standard is called reasonable apprehension of bias. [59] In the Judicial Boards opinion, the Appellant did not meet the standard of proving that the Elections Committee had a reasonable apprehension of bias before, during, or after the

15

Election. Based on the evidence presented by the parties during the hearing, a reasonable person would not conclude that the Elections Committee decided the issues unfairly as between the Appellant and Mr. Aziz. First and most importantly, it is within the discretion of the Elections Committee to decide whether to issue a fine or a warning in the first instance. The Judicial Board heard evidence from two candidates for other positions in the Election, Mr. Aaron Beale and Mr. Sager Jha, to the effect that they received a number of warnings in the first instance during the election. The reasonable person would not conclude that a reasonable apprehension of bias exists merely because one candidate received a fine in the first instance while another candidate received a warning for a completely separate and unrelated incident. The Elections Committee has wide discretion to issue a fine or warning in the first instance, depending on the severity of the infraction and the circumstances in which it took place. [60] The Appellant adduced evidence during the hearing to the effect that Mr. Hansen called Mr. Aziz a good guy, and with regard to an allegation that from the Appellant that Mr. Aziz violated an elections rule, Mr. Hansen said he wouldnt do that. Although this comment perhaps represents a momentary lack of judgment on behalf of Mr. Hansen, it does not amount to a reasonable apprehension of bias. The Judicial Board accepts Mr. Hansens oral evidence that this comment was made quickly and with the intention to diffuse a potentially contentious situation between two candidates during the Election. The Judicial Board does not find that this isolated comment would cause the reasonable person to believe that the Elections Committee considered the Appellants complaints against Mr. Aziz with a reasonable apprehension of bias. An isolated comment, made quickly in the heat of the moment, does not give rise to a reasonable apprehension of bias without more. The Appellant was unable to adduce additional evidence on this point, and as a result, he does not meet his burden for issue five.