Village of Slocan v. Berinstein, 2022 BCPC 233

Citation: Village of Slocan v. Berinstein 2022 BCPC 233 Date: 20221024 File No: 22448 Registry: Nelson Registry IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Civil Division) BETWEEN: CHIEF ELECTION OFFICER FOR THE VILLAGE OF SLOCAN APPLICANT AND: NICOL BERINSTEIN and EZRA BULLER RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.D. SICOTTE Appearing for the Applicant: R. Vallance (via telephone) Appearing in person: M. Gordon, Chief Election Officer Appearing on her own behalf: N. Berinstein Place of Hearing: Castlegar , B.C. Date of Hearing: Date of Hearing: Date of Judgment: October 24, 2022 x

[1] Pursuant to s. 148(5) of the B.C. Local Government Act the Chief Election Officer for the Village of Slocan filed an applicationfor a Judicial Recount based on the equality of valid votes for the last counsellor position. Ezra Buller and Nicol Berinstein eachreceived 72 valid votes. [2] This application was brought within the proper timeframe with the appropriate documentation being filed. [3] I note that ss. 148(7) and 148(8) state: (7)At the time an application is commenced, a time must be set for the recount that is adequate to allow the court to complete the recountwithin the time limit set by

section 149. (8)The person making the application must notify affected persons (a)by immediately notifying the chief election officer and the affected candidates in the election, if any, that a judicial recount will beconducted at the time set under subsection (7), and (b)within 24 hours of filing the document commencing the application, by delivering to these persons copies of that document, theaccompanying affidavit and a notice of the time for the recount. [emphasis added] [4] These subsections are problematic. [5] Before any recount can take place, the court must determine whether the application is validly commenced under ss. 148(2-6).Potentially affected parties may wish to make submissions to the court regarding the validity of the application and how the recount, ifany, should be conducted.

Decisions such as those contemplated in ss. 149(5) and 149(7) may impact the length of time needed for therecount. [6] Depending on the volume of ballots to be counted and the method of counting, many hours or even days of judicial time may berequired and need to be scheduled with input from the court. [7] An applicant at the time of filing of the initial application is not in a position to determine these issues and set the timing of therecount. [8] It is for those reasons that ss. 148(7) and 148(8) must be interpreted as referring to the date and time for hearing the applicationfor a recount rather than to the actual recount itself.

The timing of the recount, if any, must be determined by the court after hearingsubmissions from potentially affected parties. Polly Palmer, CEO for Peachland v. Fortin & Gough, 2018 BCPC 265 , 2018B.C.P.C. 265; Smith and Finkbeiner v. The District of West Vancouver, 2018 BCPC 326 , 2018 B.C.P.C. 326. [9] In the case before me, the Chief Election Officer testified that she notified Ezra Buller and Nicol Berinstein of the timing of thisapplication. She also produced affidavits from both candidates confirming that notification. Those affidavits were filed as exhibits.

NicolBerinstein was also present in court for the application. [10] Counsel for the Chief Election Officer submitted that the court should follow the process set out in s. 149(7) and s. 151 of theLocal Government Act.

Those sections read: 149 (7)As exceptions to the obligation to conduct a recount in accordance with the other provisions of this section, (a)if the person who made the application for the recount, the chief election officer and the candidates present at the recount agree, thecourt may restrict the ballots to be recounted as agreed by these persons at that time, or (b)if the court determines on the basis of the ballot accounts that the results of a recount of the ballots, if it were conducted, would notmaterially affect the results of the election, the court may confirm the results of the election and take no further action under this section. 151 (1)A local government may, by bylaw, provide that, if at the completion of a judicial recount the results of the election cannot bedeclared because there is an equality of valid votes for 2 or more candidates, the results will be determined by lot in accordance with thissection rather than by election under

section 152. (2)If a bylaw under subsection (1) applies and there is an equality of votes as described in that subsection, the results of the election areto be determined, as the conclusion of the judicial recount, by lot between those candidates in accordance with the following: (a)the name of each candidate is to be written on a separate piece of paper, as similar as possible to all other pieces prepared for thedetermination; (b)the pieces of paper are to be folded in a uniform manner in such a way that the names of the candidates are not visible; (c)the pieces of paper are to be placed in a container that is sufficiently large to allow them to be shaken for the purpose of making theirdistribution random, and the container is to be shaken for this purpose; (d)the court is to direct a person who is not a candidate or candidate representative to withdraw one paper; (e)the court is to declare elected the candidate whose name is on the paper that was drawn. [11] The Corporation of the Village of Slocan has, in bylaw #698, clause 5, adopted the process set out in s. 151 above.

[ 12 ] After hearing from Counsel for the Chief Election Officer, the Chief Election Officer and Nicol Berinstein, I chose to proceed under s. 149(7) to examine only the four spoiled ballots. I did so in the courtroom in the presence of Nicol Berinstein with the Chief Election Officer handling the ballots. I came to the same conclusion as indicated by the Chief Election Officer, that nothing on those ballots would resolve the tied vote. [ 13 ] Having noted that conclusion on the record, with the consent of everyone present, I proceeded to deal with the matter as set out in s. 151 of the Local Government Act .

The procedure set out therein was followed closely. The deputy sheriff drew the lot indicating that Ezra Buller was the winner. [ 14 ] Pursuant to s. 151(2)(e), I declare Ezra Buller the winner of the election and pursuant to s. 150(3), I order that all costs related to the judicial recount are the responsibility of the Corporation of the Village of Slocan. ______________________________ The Honourable Judge C.D. Sicotte Provincial Court of British Columbia