How have courts considered the distinction between mandatory and directory provisions in legislation?

Flookes v. Shrake discussed in more detail below, relied on the distinction between “mandatory” and “directory” provisions in legislation in finding the election valid. It explained that mandatory provisions must be obeyed or fulfilled exactly, but directory enactments need only be obeyed or fulfilled substantially; there is no general rule as to when statutes are mandatory or directory; and in determining whether a statute or a provision in a statute is mandatory or directory the court must look at the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the statute. It noted that where a statutory provision imposes a public duty and declaring an act invalid because of the failure of the person entrusted with the duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without promoting the aims of the statute, such a provision seems to be generally understood as directory only.

O’Brien v. Hamel involved a federal election. The applicable legislation provided that, in urban areas, electors could vote only if on the voters’ list for the poll. The legislation provided only two exceptions to this. The first was for election officials required to be at another polling station on election day. The second was that, if not on the voting list, the elector could apply to the returning officer and obtain a certificate which would permit him or her to vote and be added to the official list. The process was different for rural voting divisions. A person resident in a rural polling division not on the voters’ list was entitled to vote upon being vouched for by an elector whose name appeared on the voting list, was ordinarily resident in the polling division and personally attended with the person at the polling station and took an oath in prescribed form. The applicant was also required to take an oath. Twenty people who were not on the voters’ list for urban polling divisions, and were not added to the list in accordance with the statutory procedure, were permitted to vote after producing identification. One hundred and one people at a rural polling division were permitted to vote although vouched for by persons not on the voting list for that polling division. The election, decided by a margin of 77 votes, was declared invalid.