Smith and Finkbeiner v. The District of West Vancouver, 2018 BCPC 326

Citation: Smith and Finkbeiner v. The District of West Vancouver 2018 BCPC 326 Date: 20181213 File No: 1826262 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MICHAEL SMITH and JIM FINKBEINER APPLICANTS AND: THE DISTRICT OF WEST VANCOUVER RESPONDENT APPEARING: MARY-ANN BOOTH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Applicants : K. Westell Counsel for the Respondent: P. Hilderbrand, R. Vallance Counsel for Mary-Ann Booth: M. Rowan Place of Hearing: North Vancouver , B.C. Date of Hearing: 29 th and 31 st October, 2018 Date of Judgment: 13 th December, 2018

[ 1 ] The applicants applied for a judicial recount pursuant to ss.148(2)(

b) and (

c) of the Local Government Act (the Act) with respect to the results of the municipal election held October 20 th 2018. Michael Smith was the incumbent Mayor of West Vancouver and Jim Finkbeiner was a candidate for council. The results in issue were for the position of Mayor as between Mary Ann Booth who received 4,394 votes and Mark Sager who received 4,373 votes and for a position on council as between Sharon Thompson who received 4,942 votes and Jim Finkbeiner who received 4,922 votes.

One concern identified by the applicants was that there were apparently 68 valid ballots where there was no vote registered for a mayoral candidate. [ 2 ] Due to the status of the persons applying, the application by Jim Finkbeiner was governed by s. 7.1 of West Vancouver By-law 4139, 1999 (the By-law) which applies to applicants who are candidates. The application by Michael Smith was governed by s. 148 of the Act which applies to applicants who are electors. [ 3 ] The application was filed on October 29 th and was heard on October 31 st .

I gave oral reasons at that time due to statutory time constraints and advised that written reasons would be provided at a later date. [ 4 ] A judicial recount was ordered to occur pursuant to s.148 respecting both applicants with the procedure set out under s.149 applying to the recount respecting the mayoral results and the procedure under s.7.1 of the By-law to applying to the council results. The recount took place November 1 st 2018. [ 5 ] The relevant legal framework under the Local Government Act and relevant by-law are: Use of voting machines 112

(1) A local government may, by bylaw, provide for the use of automated voting machines, voting recorders or other devices for voting in an election, subject to any requirements, limits and conditions established by regulation under

section 168 [election regulations] .

(2) A bylaw under subsection (1) must include the following: (

a) procedures for how to vote, to be used in place of those established by

section 129 [how to vote by ballot] ; (

b) the form of ballot, if this is to be different from the form of ballot otherwise required by this Act; (

c) procedures, rules and requirements regarding the counting of votes, if these are to be different from those established by Division 14 [Counting of the Votes] of this Part.

(3) If a bylaw under subsection (1) includes only provisions referred to in subsection (2), to the extent there is an inconsistency between the procedures, rules and requirements established by the bylaw and the procedures, rules and requirements established under this Part, the bylaw prevails .

(4) If a bylaw under subsection (1) includes provisions other than those referred to in subsection (2) and is approved by the minister, to the extent that there is an inconsistency between the procedures, rules and requirements established by the bylaw and the procedures, rules and requirements established under this Part, the bylaw prevails. Determination of official election results 145

(1) As the final counting proceeding subject to a judicial recount, the chief election officer must determine the results of an election in accordance with this section.

(2) The chief election officer must notify the candidates in an election of the date, time and place when the determination is to be made and the candidates are entitled to be present when those proceedings take place.

(3) The chief election officer must begin the determination by reviewing the ballot accounts or by having them reviewed by election officials authorized by the chief election officer.

(4) The chief election officer may verify the results indicated by a ballot account by counting the votes on all or some of the ballots for the election, including reviewing the decision of a presiding election official regarding the acceptance of some or all of the votes or the rejection of some or all of the ballots.

(5) The chief election officer may be assisted in counting under subsection (4) by other election officials, but must personally make all decisions regarding the acceptance of votes or the rejection of ballots that were subject to objection under

section 140.

(6) The chief election officer may reverse a decision of another election official regarding the acceptance of a vote or the rejection of a ballot made at the original consideration of the ballot and, if this is done, the chief election officer must endorse the ballot with a note of the reversal.

(7) The chief election officer or an election official authorized by the chief election officer must either mark on the original ballot accounts any changes made under this

section or prepare a new ballot account of the results of the counting under subsection (4).

(8) On the basis of the ballot accounts, as amended or prepared under subsection (7) if applicable, the chief election officer must prepare a statement of the total number of votes for each candidate in the election.

(9) A decision of the chief election officer under this

section may be changed only on a judicial recount.

(10) If a ballot box or ballot package is opened for the purposes of subsection (4), the contents must be replaced and it must be resealed during any adjournment and at the end of the review of the contents. Declaration of official election results 146

(1) Before 4 p.m. on the 4th day following the close of general voting, the chief election officer must declare the results of the election as determined under

section 145.

(2) The results must be declared as follows: (

a) in the case of an election for an office to which one person is to be elected, the chief election officer must declare elected the candidate who received the highest number of valid votes for the office; (

b) in the case of an election for an office to which more than one person is to be elected, the chief election officer must declare elected the candidates who received the highest number of valid votes for the office, up to the number of candidates to be elected.

(3) As an exception, if a candidate cannot be declared elected because there is an equality of valid votes for 2 or more candidates, the chief election officer must declare that the election is to be referred to a judicial recount. Judicial recount procedure 149

(1) A judicial recount must be conducted in accordance with this

section and completed by the end of the 13th day after the close of general voting.

(2) The person who made the application for the recount, the chief election officer, the candidates in the election and the official agents and counsel of the candidates are entitled to be present at a judicial recount and other persons may be present only if permitted by the court.

(3) The chief election officer must bring to the recount all ballot accounts used for the determination of official election results under

section 145 and the ballot boxes containing the ballots for which the recount is requested.

(4) In conducting a recount, the court must open the ballot boxes containing the ballots for which the recount is requested, count those ballots in accordance with sections 138 [procedures for counting] and 139 [rules for accepting votes and rejecting ballots] and confirm or change the ballot accounts in accordance with the counting.

(5) In its discretion, the court may count other ballots in addition to those for which the recount was requested and, for this purpose, may require the chief election officer to bring other ballot boxes.

(6) The court may appoint persons to assist in the recount.

(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, the court 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 not materially affect the results of the election, the court may confirm the results of the election and take no further action under this section.

(8) Unless otherwise directed by the court, the ballot boxes at a judicial recount must remain in the custody of the chief election officer.

(9) During a recess or adjournment of a judicial recount and after the completion of the judicial recount, the ballot boxes must be resealed in accordance with

section 121 [sealing of ballot boxes containing ballots] by the person having custody of them and may be additionally sealed by other persons present. Results of judicial recount and orders as to costs 150

(1) At the completion of a judicial recount, the court must declare the results of the election.

(2) The results declared under subsection (1) or following a determination by lot under

section 151 are final, subject only to a declaration under

section 155 [power of court on application respecting validity of election] that the election was invalid, and may not be appealed.

(3) All costs, charges and expenses of and incidental to an application for judicial recount, including the recount and any other proceedings following from the application, must be paid by the local government, the applicant and the persons notified of the application under section 148 (8) [application for judicial recount] , or any of them, in the proportion the court determines.

(4) At the conclusion of a judicial recount, the court must make an order for the purposes of subsection (3) having regard to any costs, charges or expenses that, in the opinion of the court, were caused by vexatious conduct, unfounded allegations or unfounded objections on the part of the applicant or the persons who were given notice.

(5) In relation to subsection (3), the court may order that the costs be determined in the same manner as costs within the meaning of the

Supreme Court Civil Rules. Determination of results by lot if tie vote after judicial recount 151

(1) A local government may, by bylaw, provide that, if at the completion of a judicial recount the results of the election cannot be declared because there is an equality of valid votes for 2 or more candidates, the results will be determined by lot in accordance with this

section 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 are to 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 the determination; (

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 their distribution 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. Runoff election if tie vote after judicial recount 152

(1) If at the completion of a judicial recount the results of the election cannot be declared because there is an equality of valid votes for 2 or more candidates, a runoff election must be held in accordance with this

section unless a bylaw under

section 151 [determination by lot] applies.

(2) Except as provided in this section, this Part applies to a runoff election under subsection (1).

(3) The candidates in the runoff election are to be the unsuccessful candidates in the original election who do not withdraw, and no new nominations are required or permitted.

(4) As soon as practicable after the judicial recount, the chief election officer must notify the candidates referred to in subsection (3) that an election is to be held and that they are candidates in the election unless they deliver a written withdrawal to the chief election officer within 3 days after being notified.

(5) The chief election officer must set a general voting day for the runoff election, which must be on a Saturday no later than 50 days after the completion of the judicial recount.

(6) If advance registration would otherwise be permitted, the closed period under section 71 (4) [closing of advanced registration] extends until the day after the close of general voting for the election under this section.

(7) No new list of registered electors is required and sections 77 to 80 do not apply.

(8) So far as reasonably possible, election proceedings must be conducted as they were for the original election except that, if voting under

section 112 [use of voting machines] was used for the original election, it is not necessary to use this for the election under this section.

(9) Without limiting subsection (8), so far as reasonably possible, voting opportunities equivalent to those provided for the original election must be held and, for these, no new bylaws under this Part are required. [ 6 ] District of West Vancouver – Automated Vote Counting System Authorization and Procedure By-law 4139, 1999 provides: Recount Procedure S.7.1 If a recount is requested by a candidate under

Section 148 of the Local Government Act , it shall be conducted under the direction of the chief election officer, using the automated vote counting system, and generally in accordance with the following procedure: (

a) the memory packs for all vote counting units will be cleared; (

b) a vote counting unit will be designated for each voting place; (

c) all voted ballots will be removed from the sealed election materials boxes, except spoiled ballots and reinserted in (sic) the chief election officer; (

d) any ballots returned by the vote counting unit during the recount process shall, through the use of the ballot return override procedure, be reinserted in the vote counting unit to ensure that any acceptable marks are counted; and (

e) to obtain election results, the chief or deputy election officer shall place the results of each voting place on spread sheet so as to tally the total election results.

Bases for the Ordering of a Recount [7] The Act sets out mandatory procedures to be followed in any recount. According to s.148 (2) an application may be made onlyon the three bases specified, all of which are related to the counting of valid ballots. The Act is otherwise silent with respect to any othergrounds or criteria for the ordering of a recount. Unlike many election related statutes, there is no requirement that the margin of victorybe less than a certain percentage before a recount is allowed.

The by-law is also silent in this regard. [8] It is clear from s.112 of the Act that automated voting machines are an acceptable means of tabulating ballots. In this matter,the District of West Vancouver conceded that, although generally very reliable, the machines are not infallible. No evidence was beforeme as to any known margin of error with respect to the particular machines utilized in the subject election. If automatic voting machineswere infallible, the legislation respecting the availability of recounts would presumably be much more limited in scope where suchmachines are utilized.

In particular, the machines may not record a vote for which a visual inspection can determine the voter intent. [9] In Vicktor v. Lanktree 2008 BCPC 358 , 2008 BCPC 0358 the applicant deposed that he believed the automatedvoting machines used were unacceptably unreliable and therefore a manual recount should be conducted. The court found that theapplication was speculative with respect to the bases set out in then s.138 (now s.148) of the Act and declined to order a machine ormanual recount. In that matter there was a less than 1% margin of victory.

With the greatest of respect I do not agree that the court isgiven discretion under the Act, or in this matter the By-law, to require an evidentiary basis to support one of the bases. In my view, theapplication need only allege that the request for a recount is related to the counting of valid ballots. [10] In Dhaliwal v. Comis and Spitz, 2005 BCPC 589 the court was again dealing with a very narrow margin of victory andautomated voting machines. At paragraph 4 the court found: [4] Counsel for Mr. Dhaliwal says there are two issues of concern with respect to the accuracy of the ballot count.

He says firstlythat the automated machines used to tabulate the vote have a margin of error and that the three vote lead of Ms. Spitz is well within thatmargin of error. Secondly he says that the automated machines only read whether a vote is properly recorded on the ballot and does notaccount for situations where the machine has not recorded the vote but the intention of the voter is clear on the face of the ballot.

I amsatisfied on the evidence before me that there may be legitimate concerns about the accuracy of the tabulating machine on both issues inthe particular circumstances of this case. [11] In my view, this reasoning is correct. If the application is based on a concern about the counting of valid ballots and thatconcern is “legitimate” the court must order a recount. [12] It may be that applications could be made which purport to be concerned with the bases set out in s.148 but which do notlegitimately arise from concerns about the full and accurate counting of valid ballots.

In such cases the court could and should deny theapplication. [13] I find support for this conclusion from the provisions of s.148 (7) which provides that the court can review the ballot accountsand determine that a recount would not materially affect the results of the election. Nothing in the Act suggest this procedure could notbe dealt with as a preliminary matter and could occur immediately after the court commenced a recount. Furthermore, ss.150 (3) and (4)provide that the Court can make an order for expenses to be paid.

These provisions are the appropriate means of dealing with frivolousor vexatious applications for a recount. Discretionary Matters Respecting the Recount Procedure [14] S.149 of the Act provides the court with discretion as to who may be present at the recount, what ballots will be recounted andmay appoint persons to assist.

In this matter the parties consented to the following orders in this regard: • As determined by the Chief Election Officer of the District of West Vancouver, the Judicial Recount shall occur commencing at 8:30 AM, November 1st, 2018 at the Gleneagles Community Centre at 6262 Marine Drive in West Vancouver, BritishColumbia and shall continue thereafter until complete. • The Chief Election Officer of the District of West Vancouver shall be authorized to appoint up to thirty Election Officials toassist in the recount. • The Election Officials will examine each ballot to determine whether with respect to the election for Mayor the ballotcontains an apparent irregularity on its face that might make the ballot subject to erroneous

interpretation by the machine or which doesnot appear to cast any vote for the Office of Mayor. • All such ballots will be segregated by the Election Officials and delivered to the Chief Election Officer. All other ballotswill be processed by the automated vote counting machines. • The Chief Election Officer will conduct a hand count of the segregated ballots, both with respect to the Election for Mayorand the Election for Councilors.

Upon completion of the above, the Election Officials will give the Chief Election Officer the outputfrom the automated voting machines. • The Chief Officer will take the output from the automated voting machines and the results of the hand count of thesegregated ballots, and prepare the result of the election. • Each candidate for Mayor shall be entitled to have up to fourteen scrutineers present during the process. • Each candidate for Mayor and for election of Municipal Council shall also be entitled to be present during the recount inthe company of a single representative.

• Should the Judicial Recount not be concluded by a reasonable hour on Thursday November 1 st 2018 it will continue on Friday, November 2 nd , 2018 by 10:00 AM. The Chief Election Officer and any other affected parties shall attend the North Vancouver Provincial Court.

The Chief Election Officer shall bring with him or her all automated voting machine outputs and results of the election and all segregated ballots. • Staff of the District of West Vancouver will notify each of the candidates and applicants for the offices of Mayor or Council members and the Presiding Judge Challenger of the time and location of the Judicial Recount by electronic mail. • Accredited members of the media may be present at the Judicial Recount. Each member would make a solemn declaration to preserve the secrecy of the ballots.

No one shall publish or make public in any way or in any way disclose the name of a voter revealed during the Judicial Recount or any information that would identify such a voter. • Cameras, photographic, or auto-recording devices may be used within the room where the Judicial Recount is taking place before the recount begins and after it is completed but are prohibited during the Judicial Recount. • If the Judicial Recount results in a tie, the media are permitted to record drawing of votes and declaration of the elected Candidates. • Members of the media may not sit or stand at the tables where the ballots are being counted but may observe the proceedings including any ballots that do not identify the voter involved and may position herself or himself as close as necessary to clearly hear the submissions on behalf of the parties or others in attendance to the Judge as well as the decisions rendered and reasons given by the Judge in the instance. • The media are permitted to leave the room to report from time to time on the Courts decisions regarding any disputes ballots, so long as the identity of the voter is not disclosed but are prohibited from reporting any information regarding the tallying of the totes or other recount proceedings until the Court declares the result of the election pursuant to

section 150 of the Local Government Act. [ 15 ] The recount concluded on November 1 st and the Court declared the results to be as follows: MAYOR 1 Mayor total BOOTH, Mary-Ann 4,397 CASSIDY, Christine 2,610 JAFARI, Rosa 235 SAGER, Mark 4,376 STRONG, Nolan 140 COUNCILOR Councilor total CAMERON, Craig 5,384 FINKBEINER, Jim 4,923 GAMBIOLI, Nora 5,359 JONES, David 2,127 KRAWCZYK, Andy 3,744 LAMBUR, Peter 5,560 LOREN, Gabrielle 4,348 MANVELL, Kate 1,830 MERSEY, Heather 3,142 REYNOLDS, Carol 1,699 SOPROVICH, Bill 4,954 THOMPSON, Sharon 4,943 WONG, Marcus 6,232 [ 16 ] The issue of expenses was adjourned generally, by consent, with leave to all parties to apply to the court for a determination of the proportion to be paid by each party. _____________________________ The Honourable Judge J.

Challenger Provincial Court of British Columbia