Lubik v. The City of Port Moody, 2022 BCPC 240

Citation: Lubik v. The City of Port Moody 2022 BCPC 240 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 DECISION OF THE HONOURABLE JUDGE W. LEE Counsel for the Claimant: S. Anderson Counsel for the Defendants: A. Carricato Place of Hearing: Brovold Room at Port Moody City Hall, B.C. Date of Hearing: October 27, 2022 Date of Judgment: November 1, 2022 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 ”) .

I followed this up with written reasons to provide additional details for my decision to allow a judicial recount. [ 2 ] The terms of the Order made on October 26, 2022, were 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.” [ 3 ] These written reasons now set out the results of the judicial recount held at Port Moody City Hall on October 27, 2022, which completed at 7 p.m. that evening. Ascertaining Voter Intent [ 4 ] During the recount, six ballots were pulled for a manual count. In each case, the vote counting machine had difficulty reading the ballots. It appeared that the difficulty was caused by how the ballots were marked. Accordingly, it was necessary to review the ballots to determine the voter’s intent.

In each case, the scrutineers, Mr. Lo and the legal counsel all agreed with me as to the intent of each of these ballots and the votes were recorded based on our agreed conclusions. [ 5 ] Despite the agreements regarding these ballots, it is worthwhile to discuss relevant criteria to ascertain voter intent based on how a ballot is marked. [ 6 ] I start by noting that the instructions for the acceptable marking of ballots are inconsistent. [ 7 ] Section 129(1) (

b) of the Local Government Act says a ballot is to be marked by a cross in the blank space opposite the name of the candidate. [ 8 ] Section 139(1)(

a) also confirms that a cross, as referred to in s. 129(1)(b), is an acceptable mark. [ 9 ] Section 139(1)(

b) states that a tick mark in the blank space opposite the name of the candidate can be used on a ballot. [ 10 ] Section 139(1)(

c) states that a cross that is completely or partially out of the location on the ballot where the mark is to be placed is acceptable so long as the mark is placed in such a way as to show the clear intent of the voter. [ 11 ] Section 139(1)(

d) states that a tick mark that is completely or partially out of the location on the ballot where the mark is to be placed is acceptable so long as the mark is placed in such a way as to show the clear intent of the voter. [ 12 ] Port Moody Bylaw 3367 states that an “acceptable mark” is one the vote-tabulating unit can identify and has been made by an elector in the designated space on the ballot opposite the name of the candidate. [ 13 ] The standard form ballot used by Port Moody instructs a voter as follows:

Mark your ballot by completely filling in the circle to the left of the candidate of your choice. Do not make any marks outside of the circle. [ 14 ] As is evident, the Act , the Bylaw and the ballot provide different instructions on how to mark a ballot. [ 15 ] As set out in British Columbia (Chief Election Officer) v. Wade , [2002] B.C.J. No. 2943 , which I referred to earlier, ascertaining the intent of the voter is important in a judicial recount. In Jones v. Mumford , 2019 BCPC 223 , at para. 22 , Judge Ormiston provided helpful guidance on ascertaining voter intent based on the markings on a ballot: [22] I applied consistent tests in my

interpretation of voter intention on these ballots, designed to be read by the machines. The following is a

summary of my conclusions: • Valid votes were counted if an allowable number of either check marks or crosses were uniformly used opposite a candidate’s name. • Valid votes were counted if an allowable number of circles were filled in, and in addition to each circle a check mark was consistently placed beside the same candidate’s name. • Where an allowable number of check marks appear to have been marked in the circle opposite a candidate’s name, but then each check was coloured over to complete the circle, I counted valid votes. • Where an allowable number of circles were consistently marked with sparse scribbles mostly contained in the circular space provided, I counted valid votes. • Where unreadable inconsistent marks were made for a different election on the same ballot, the consistent marks for the School Board election were counted. • Where filled in circular marks were consistently made beside the candidate’s name, but not within the circular lines provided, these were counted as valid votes. • Where the outline of a circle was hand drawn on the wrong side of the candidate’s name, and the voter had made this indication next to too many candidates, no votes were counted. • Where the circular spaces were consistently filled in, and there was also a small irregular mark next to the name of one candidate (that would not have resulted in an over-vote if it had been counted), the irregular mark was not counted as a vote, but the others were. • Where the mark beside one candidate’s name appeared significantly smaller compared to the others, the smaller mark was not counted as a vote.

In making this decision I considered the fact that the smaller mark was notably anomalous when compared not only with the marks for other School Board candidates, but also when compared with the marks for candidates in other races included on the same ballot. • If there was an over-vote, any type of mark in a circle led me to find that voter intention could not be determined and no votes were counted. [ 16 ] In the case before me, based on the Act , the Bylaw and the ballot instructions, an acceptable mark may be made on a ballot by (

a) filling in the circle that is beside a candidate's name; (

b) placing a mark such as a dot, a cross or a tick mark in the circle; or (

c) placing a mark such as a dot, cross or tick mark beside the circle in such a way that voter intent can be ascertained. [ 17 ] Where there is any mark across from but not inside a circle beside the name of a candidate, the entire ballot needs to be reviewed to determine if there is any consistency in the placement of the marks on the ballot that allows voter intent to be ascertained. [ 18 ] Where a mark extends beyond the boundaries of the circle beside the name of a candidate, the mark will be accepted as a vote for that candidate. [ 19 ] Where the number of marks beside candidate names exceeds the number of available positions, which I have referred to as an “overvote,” all votes for that particular position will be rejected.

In such a case, there is no way to determine which of the candidates has been selected. Judicial Recount Results [ 20 ] The recount arrived at a result where each candidate received 3,597 votes. [ 21 ] As a result of the tie, s. 151 of the Local Government Act and clause 12.4 of Bylaw No. 3367 required that the result be determined by lot between Ms. Lubik and Mr. Stuart. [ 22 ] I directed Mr. Lo to draw the lot. The name of Ms. Lubik was drawn. [ 23 ] I declared Amy Lubik to have been elected to the sixth and final councillor position for the City of Port Moody. Costs

[ 24 ] After the recount, I heard submissions regarding costs. Local Government Act s. 150(3) allows the Court to make an order regarding the costs, charges and expenses of the application, including the recount. Both the City of Port Moody and Ms. Lubik were content with an order that each party bear their own costs. In light of the closeness of the original final vote tally, the public interest in confirming the election results, and the result of the judicial recount in favour of Ms. Lubik, it is appropriate that each party bear their own costs and I order as such. Closing Comments [ 25 ] I commend Mr.

Lo, his election staff and the representatives from the City of Port Moody. Throughout this proceeding, they acted fairly, professionally and with utmost devotion to duty. The City of Port Moody and its residents are truly well-served by them. [ 26 ] The representatives and scrutineers for each candidate must be acknowledged for their time and participation in the judicial recount. They stood by as each ballot was processed and did so with respect and grace. I thank them for their involvement. [ 27 ] I also have to thank the candidates.

There was no animosity involved in this application; this was simply a sincere wish on both their parts to confirm election results and to serve the public. [ 28 ] Lastly, I am grateful for the involvement of the counsel involved in this application. Each of them was fair and provided helpful reviews of the legislation and caselaw in an area that judges have limited familiarity with.

Summary [ 29 ] My order is as follows:

a) I declare Amy Lubik to have been elected to the sixth and final councillor position for the City of Port Moody.

b) Each party will bear their own costs of and incidental to the judicial recount application, as well as the recount itself. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia