Lubik v. The City of Port Moody, 2022 BCPC 239

Citation: Lubik v. The City of Port Moody 2022 BCPC 239 Date: 20221101 File No: C19471 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: Amy Lubik CLAIMANT AND: The City of Port Moody DEFENDANTS AND: Philip Lo, Chief Election Officer, City of Port Moody WRITTEN REASONS FOR DECISION OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimant: S. Anderson Counsel for the Defendants: A. Carricato and R. Vallance Appearing on his own behalf: David Stuart Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 26, 2022 Date of Judgment: November 1, 2022 Introduction

Introduction [ 1 ] On October 26, 2022, I gave oral reasons regarding the application of Amy Lubik for a judicial recount under s. 148 of the Local Government Act, R.S.B.C. 2015, c. 1 (“ the Act ” ) . [ 2 ] These are written reasons setting out further details of my decision to allow a judicial recount. Background [ 3 ] On October 15, 2022, a municipal election was held in Port Moody for mayor, six councillors and two school trustees. [ 4 ] A preliminary count of ballots cast on October 15, 2022, saw David Stuart receiving 3,596 votes and Amy Lubik receiving 3,594 votes. If this result stood, Mr.

Stuart would have been elected to the sixth and last councillor position by two votes over Ms. Lubik. [ 5 ] Philip Lo is the Chief Election Officer for Port Moody. His evidence was set out in an affidavit filed on October 26, 2022. [ 6 ] Mr. Lo stated that in light of the close result, it was prudent to undertake an initial review to verify the results and decide whether a recount was warranted. [ 7 ] The review commenced on October 17, 2022. It was not completed though, out of concern that the review may be characterized as a determination of the final election results under s. 145 of the Local Government Act .

Under that section, candidates and their scrutineers were entitled to be notified and be present during a recount. [ 8 ] Mr. Lo stopped the review and gave notice to the candidates of a recount to occur on October 18, 2022. The recount was completed on October 19, 2022. The final tally now saw the following results: David Stuart 3595 Amy Lubik 3593 [ 9 ] Each candidate now received one less total vote, but the two-vote difference between the two continued. [ 10 ] The final vote result was announced on October 19, 2022. Application for Judicial Recount [ 11 ] On October 24, 2022, Ms.

Lubik applied for a judicial recount. If that order were granted, the recount had to be completed by the end of the day October 28, 2022. [ 12 ] The test for a judicial recount is set out at s. 148(2) of the Local Government Act , which states: 148

(2) Except as provided in subsection (5), an application may be made only on one or more of the following bases: (

a) that votes were not correctly accepted or ballots were not correctly rejected as required by the rules of

section 139 [rules for accepting votes and rejecting ballots] ; (

b) that a ballot account does not accurately record the number of valid votes for a candidate; (

c) that the final determination under

section 145 [determination of official election results] did not correctly calculate the total number of valid votes for a candidate. [ 13 ] Section 148(6) of the Local Government Act states that the document commencing an application for a judicial recount “must set out briefly the facts on which the application is based and must be supported by an affidavit setting out those facts”. [ 14 ] The affidavit filed in support of Ms. Lubik’s application was from Neal Nicholson, the financial agent for Ms. Lubik. The facts set out in support of the application were sparse at best. However, paragraph 15 of Mr.

Nicholson’s affidavit did refer to the discrepancy between the first and second counts. This was confirmed by the counsel for the City of Port Moody and in Mr. Lo’s affidavit. [ 15 ] The evidence shows that in the recount, Mr. Stuart lost a single vote at vote counting machine # 1 used at the Kyle Centre polling station. [ 16 ] Ms. Lubik lost a single vote at the recount for the Heritage Mountain Community Centre polling station. [ 17 ] The comparison between the preliminary and the final votes showed a total of five changes in the voting results at the Heritage Mountain Community Centre polling station.

This affected five candidates, four for councillor and one for school trustee. [ 18 ] That same comparison showed only Mr. Stuart being affected by the recount involving vote counting machine # 1 at Kyle Centre. [ 19 ] Given these changes in vote results, however small, I was satisfied that there was a concern raised under s. 148(2) (

b) that a ballot account does not accurately record the number of valid votes for a candidate. [ 20 ] I now turn to Local Government Act s. 149(7) (b), which says that if I find that the results of a recount would not materially affect the results, I can deny the request for a recount. Where the margin is only two votes, I cannot say if the recount would not make any difference in the result. As such, I held that this was not a basis to refuse a recount.

[ 21 ] Based on the above reasons, I ordered a judicial recount pursuant to s. 148(2) (b). [ 22 ] I restricted the recount to only the votes cast at Heritage Mountain Community Centre and vote counting machine # 1 at the Kyle Centre polling station. For all other voting stations or vote counting machines, the results relating to Ms. Lubik and Mr. Stuart did not change between the two counts. As such, I saw no need for a third count involving any other voting stations or vote counting machines. Application for Manual Recount [ 23 ] Ms.

Lubik requested a manual recount. [ 24 ] Local Government Act s. 112 permits the use of a vote counting machine if allowed by bylaw. City of Port Moody Bylaw 3367 permits the use of a vote counting machine even on a recount. The City of Port Moody has deemed this to be the best method to count votes. [ 25 ] If there is any inconsistency between a bylaw governing the use of a vote counting machine and the Act , ss. 112(3) and (4) state that the bylaw prevails. [ 26 ] The type of vote counting machine used by The City of Port Moody is described in Mr.

Lo’s affidavit starting at para. 15. [ 27 ] The method of voting required voters to place a mark in a circle beside a chosen candidate’s name. In this election, there were six councillor positions available. If a voter selected more than six candidates, the ballot was an “overvote.” If a voter selected fewer than six candidates, the ballot was an “undervote.” [ 28 ] The vote counting machine scans a ballot fed into it by the voter. [ 29 ] The machine will return a ballot if there is an overvote, an undervote or if no vote was cast for a position.

A warning will be displayed on a screen of the vote counting machine to show if the issue is with a vote for a particular position, such as mayor or councillor. The physical ballot can be inspected to determine the reason for the ballot return. The machine operator can then select to override the ballot return and require the vote counting machine to process the ballot. [ 30 ] According to paragraph 18 of his affidavit, Mr. Lo tested the voting machines and confirmed their accuracy.

There is no evidence suggesting the vote counting machines used by Port Moody are not reliable other than the small changes in the results. [ 31 ] In paragraph 54 of his affidavit, Mr. Lo provided a reasonable explanation of the changes in total votes cast between the two vote counts. The ballots used by Port Moody have a circle beside a candidate’s name. An elector is required to place a mark within the circle to vote for the candidate. Mr.

Lo said any discrepancies in the vote count may be the result of a circle in the ballot being marked or filled in a manner that is on the border of the vote counting machine’s capability for detection. Alternatively, the voter may have inserted the ballot into the vote-counting machine in such a way as to skew the result. [ 32 ] In light of the Bylaw mandating the use of vote counting machines on a recount and the evidence of the accuracy of these machines, I did not order a manual recount. [ 33 ] The decision British Columbia (Chief Election Officer) v. Wade , [2002] B.C.J.

No. 2943 , also reported under the name Simms v. Wade , 2002 BCPC 547 , emphasized the importance of ascertaining voter intention during a judicial recount. Given that focus, I ordered any ballot brought into question by the vote counting machine would be reviewed by Mr. Lo and the appointed scrutineers, and any disagreement about the handling of the ballot would be referred to the Court. The October 26, 2022 Order [ 34 ] The terms of the Order made on October 26, 2022, came after considerable discussion between all parties.

My Order was as follows: 1) The application for a judicial recount for election for councillor is granted. 2) The purpose of the judicial recount will be limited to determining the election of councillor as between David Stuart and Amy Lubik. 3) The judicial recount shall take place on Thursday October 27, 2022 in the Brovold Room at Port Moody City Hall, commencing at 10 a.m. 4) The recount will be conducted pursuant to clause 12.3 of the City of Port Moody Bylaw 3367, and will involve only the ballot boxes for machine 5 from the Heritage Mountain Community Centre and machine 6 from the Kyle Centre polling stations (“Kyle 1”).

The ballots are to be inserted into the automated vote counting machine face up. 5) If the automated vote counting machine displays a warning regarding a ballot, that warning will be reviewed by the scrutineers. 6) If the warning relates to the position of mayor or school trustee, then the ballot return override procedure will be followed and the ballot processed. 7) If the warning relates to the position of councillor, then the ballot will be inspected by the scrutineers.

If the warning relates to a ballot that does not involve David Stuart or Amy Lubik, then the ballot override procedure will be followed and the ballot processed. If the ballot relates to David Stuart or Amy Lubik, the Chief Election Officer or his delegate and the scrutineers may agree on the reinsertion of the ballot into the machine then the ballot return override procedure will be followed and the ballot processed. If the Chief Election Officer or his delegate and the scrutineers cannot agree on the treatment of the ballot, then the ballot will be submitted to the Court for determination and manual counting.

The manually counted ballots will be stored and tallied separately.

8) The Chief Election Officer Philip Lo is appointed to assist in the recount. He may utilize up to five additional election officials, if necessary, for the judicial recount. 9) Amy Lubik and David Stuart may attend the judicial recount along with one representative, legal counsel, and three scrutineers each. 10) The City of Port Moody may be represented at the judicial recount by the city clerk or nominee of the city clerk and up to two legal counsel. 11) In order to determine the total votes cast for Amy Lubik and David Stuart, the Chief Election Officer will add: (

a) the official election results for each of the two candidates from all polling stations except Heritage Mountain Community Centre and “Kyle 1”, (

b) the machine counted votes during the judicial recount from Heritage Mountain Community Centre and “Kyle 1”, (

c) the manually counted votes during the judicial recount from Heritage Mountain Community Centre and “Kyle 1.” _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia