Alison Coffin Applicant And: Sherry Morrissey First Respondent And: Lana collins Second Respondent And: Bruce Chaulk, in his capacity as the Chief Electoral Officer of the Province of Newfoundland v. Labrador, 2021 NLSC 65

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Coffin v. Morrissey , 2021 NLSC 65 Date : May 12, 2021 Docket : 202101G2488 Between: Alison Coffin Applicant And: Sherry Morrissey First Respondent And: Lana collins Second Respondent And: Bruce Chaulk, in his capacity as the Chief Electoral Officer of the Province of Newfoundland and Labrador Third Respondent And: John Abbott Fourth Respondent And: Vaughn Hammond Fifth Respondent Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 10, 2021

Appearances: Kyle R. Rees Appearing on behalf of the Applicant Andrew A. Fitzgerald Appearing on behalf of the First, Second and Third Respondents G. John Samms Appearing on behalf of the Fourth Respondent No appearance On behalf of the Fifth Respondent Authorities Cited: CASES CONSIDERED: Swansea Election, Re, (ON CA), [1963] 2 O.R. 525, 40 D.L.R. (2d) 282 (C.A.); Dauphin(Town), Re (1911), (MB KB), 21 Man. R. 629, 1911 CarswellMan 143; O’Grady v. Nantel, 2015 QCCS 5001; Mitchellv. Jackman et al (10 November 2011), St.

John’s 201101G6677 (N.L.S.C. (T.D.)); Cornwall Election, Re [1953] O.W.N. 281, 1953CarswellOnt 184 (H.C.J.) STATUTES CONSIDERED: Elections Act, 1991, S.N.L. 1992, c. E-3.1; Municipal Act, R.S.O. 1960, c. 249; Election Act, R.S.O.1990, c. E.6; Municipal Act, R.S.O. 1950, c. 243 REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] This is an application for a recount of the ballots cast in the electoral district of St. John’s East-Quidi Vidi in the 2021Newfoundland and Labrador General Election.

The application is brought by the New Democratic Party of Newfoundland and Labrador(NDP) candidate in that district, Alison Coffin. [2] On 27 March 2021 Elections NL announced the results of the election in St. John’s East-Quidi Vidi, as follows: Liberal John Abbott 2,447 NDP Alison Coffin 2,394 PC Vaughn Hammond 856 [3] The candidate for the Liberal Party of Newfoundland and Labrador, John Abbott, was declared elected by a margin of 53votes. The Applicable Legal Principles

Section 165 of the Elections Act [4] The within application is brought pursuant to s. 165 of the Elections Act, 1991, S.N.L. 1992, c. E-3.1 (the “Act”). [5]

Section 165 reads, as follows: 165.

(1) Where,

(

a) upon an application of a candidate or elector made within 10 days after that on which the returning officer has made theaddition of the votes for the purpose of declaring a candidate elected, it is made to appear by affidavit to a judge that (

i) a deputy returning officer has, in counting the votes, (

A) improperly counted a ballot, (

B) improperly rejected a ballot, or (

C) made an incorrect statement of the number of ballots cast for a candidate, or (ii) the returning officer has improperly added up the votes; or (

b) an application is made by the Chief Electoral Officer under subsection 156(3) or

section 157, the judge shall appoint a time and place to recount or finally to add up the votes cast at the election.

(2) An applicant referred to in paragraph (1)(

a) shall deposit within that time with the Trial Division the sum of $100 as securityfor costs in connection with the recount or final addition. [emphasis added] [6] A judicial recount of the ballots is not automatic, as in this case s. 165 prescribes a threshold test which must be met.[1] Namely, it must be “made to appear by affidavit to a judge” that the deputy returning officer has improperly counted a ballot, improperlyrejected a ballot, made an incorrect statement of the number of ballots cast for a candidate, or that the returning officer has improperlyadded up the votes. “Made to Appear by Affidavit” [7] To my knowledge, the language “made to appear by affidavit”, has not been the subject of judicial commentary in thisprovince.

However, similar language has been the subject of judicial consideration in at least Ontario, Quebec and Manitoba. Theseauthorities require that the affidavit must be based on firsthand evidence, rather than the affiants’ information and belief. [8] In Swansea Election, Re, (ON CA), [1963] 2 O.R. 525, 40 D.L.R. (2d) 282 (C.A.) the Ontario Court ofAppeal considered s. 121(1) of the Municipal Act, R.S.O. 1960, c. 249. The relevant portion of that subsection provided: 121.

(1) If, within fourteen days after the declaration by the clerk of the result of the election, upon the application of a candidate or voterit is made to appear by affidavit to a judge of the county or district court of the county or district in which the municipality is situate thata deputy returning officer, in counting the votes, has improperly counted or rejected any ballot paper, or made an incorrect statement ofthe number of ballots cast for any candidate, or has improperly added up the votes... the judge shall appoint a time and place to re-countor re-add the votes cast at the election. [emphasis added] [9] Speaking with respect to the threshold that must be met for a recount under that provision, Roach, J.A. stated (at paragraph 8): 8.

Looking first at the appellant's affidavit it will be observed that in para. 3 thereof he merely states that he believes that the DeputyReturning Officer improperly counted ballot papers or improperly rejected some or improperly allowed some. Which of those threealternatives did he thereby intend to say he believed? Whether he meant thereby to say that he believed one or more or all of them makesno difference because under the statute it is not a question of what his belief may be. The statute requires that it be "made to appear" thatone or other of those matters in fact occurred.

He must establish a prima facie case and he does not do that by merely stating that hebelieves that one or other of them occurred. [emphasis added] [10] Similarly, in Jaswal v. Ontario (Chief Electoral Officer), 2018 ONCJ 432, the Ontario Court of Justice considered thethreshold under s. 71 of the Election Act, R.S.O. 1990, c. E.6 stating (at paragraphs 21, 23 – 25): 21. The relevant provision of the Election Act states:

Section 71(1) For the purpose of determining the candidate who obtained the highest number of votes and within the four days, Sunday beingexcluded, following the official tabulation made by the returning officer, a judge may appoint a time and place to recount the votes castat the election in the electoral district upon the application of a candidate or elector if it is made to appear by affidavit that, (

a) a deputy returning officer has improperly counted any ballot or improperly rejected any ballot or made an incorrect statement of thenumber of ballots cast for any candidate; or (

b) the returning officer has improperly tabulated the votes … 23. The onus is on the applicant to establish one of the grounds set out in Section 71(1). 24. The key phrase in section 71(1) is "made to appear." The Ontario Court of Appeal interpreted these words in Swansea Election,Re, (ON CA), [1963] 2 O.R. 525 (Ont. C.A.), as requiring the applicant to establish a prima facie case. The threshold istherefore low. The presiding judge has to look at the facts objectively and consider whether or not the prima facie threshold has beenmet.

Merely stating a belief that something has occurred without some basis a court can reasonably rely upon to draw conclusions fromthe affidavit evidence, will fail to support this standard. [emphasis added] 25. Although the standard is modest, some limited weighing of the evidence is permitted and the judge has discretion to give noweight to evidence that is determined to be unreliable. [emphasis added] [11] In Dauphin (Town), Re (1911), (MB KB), 21 Man. R. 629, 1911 CarswellMan 143 Robson J. noted thefollowing with respect to the threshold required under s. 193 of the Dominion Elections Act (at paragraph 10): 10.

In order to institute recount proceedings, it must be made to appear to the Judge, on the affidavit of a credible witness, that adeputy returning officer ... in counting the votes, has, — (

a) improperly counted; or, (

b) improperly rejected any ballot papers at such election; or, (

c) made an incorrect statement of the number of ballot papers cast for any candidate; or, (

d) improperly added up the votes. 11. In the present case the affidavit, after proving the returning officer's declaration on the 14th October, says: — 2. That I am an elector in the said district, and voted at the said election, and am applying for a recount on the said election, upon thefollowing grounds, which I verily believe to be true: — 1. That in counting the votes the said deputy returning officers for the different polling divisions of the said electoral district

improperly counted ballots on behalf of the said Robert Cruise, which should not have been counted. 2. That the several deputy returning officers improperly rejected ballots cast at said election. 3. That several of the said deputy returning officers made improper statements as to the number of ballots cast for the elected candidate. 4. That several of the said deputy returning officers improperly added up the votes cast at said election. 12. The deponent does not swear to facts . He merely states his belief. The Act requires that facts shall be made to appear to the Judge by means of the affidavit.

All that was made to appear by the affidavit here was the deponent's belief. 13. It would be impossible that the deponent could have personal knowledge to justify his swearing positively to the matters recited from his affidavit above. His belief must have been based on information. The sources of the information were evidently satisfactory to him, but they may not themselves have been first hand. According to the statute, it is to be made to appear to the Judge that wrong has been done.

The belief of the party making the affidavit does not satisfy that requirement . [emphasis added] [ 12 ] In a similar vein, assertions which are vague and imprecise will not qualify. Rather, the affidavit(

s) accompanying the request for a recount must contain sufficient facts to make it “appear” that one or more of the criteria for a recount exists (see; O’Grady v. Nantel , 2015 QCCS 5001 ). “The Judge Shall Appoint” [ 13 ] Should the threshold be met, subsection 165(1) (

b) of the Act provides that the judge “shall appoint a time and place to recount.” [ 14 ] I interpret this language to mean that if the evidentiary threshold is crossed, the applicant is entitled to a recount as of right. As Orsborn, J. stated in Mitchell v. Jackman et al (10 November 2011), St. John’s 201101G6677 (N.L.S.C. (T.D.)): So a recount – a person is entitled to a recount as of right, if that evidentiary threshold is crossed. It doesn’t matter if it refers to one ballot or a thousand ballots.

If there is evidence to make it appear that a ballot has been in this case improperly counted, then a recount should be ordered as of right. [ 15 ] The effect of similar language was also considered by Judson, J. in Cornwall Election , Re [1953] O.W.N. 281, 1953 CarswellOnt 184 (H.C.J.) . Section 141(1) of the Municipal Act , R.S.O. 1950, c. 243 established the pre-requisites for a recount in a municipal election, which, if met, provided that “the judge shall appoint a time and place” for the recount.

In ordering a recount, Judson, J. concluded that the legislation left him with no alternative once the threshold was reached. [ 16 ] In that case the judge first hearing the application rejected the recount request because the applicant was 1,549 votes behind the successful candidate, out of a total vote of 6,300. As such, mistakes in a few ballots were hardly going to affect the result. In nevertheless granting the recount Judson, J. stated: Counsel for the applicant insists that once these irregularities are shown, his client is absolutely entitled to a recount because of the imperative language of the section.

If the statute had left any discretion to be exercised by the judge, I would have refused the mandamus in this case. If I may say so, with respect, his reasons for the refusal of the appointment are full of common sense. However, the statute does not leave any discretion to the judge and I have no alternative but to make the order sought . [emphasis added] [ 17 ] The number of votes separating the Applicant from the successful candidate is thus immaterial if the threshold requirement has been met.

The Nature of a Recount [ 18 ] Turning now to a consideration of the nature of a recount under s. 165 of the Act . [ 19 ] While presided over by a judge, the recount it is at its core an administrative process, involving nothing more than an examination of each ballot cast to determine if that ballot is accepted, or rejected. The process was succinctly described by Orsborn, J. in Mitchell : It is an administrative process as opposed to a judicial proceeding as such. Admittedly, it is presided over by a judge. There is simply a

recounting of an examination of the ballots that have been cast and counted, and either accepted or rejected. I note in particular that in the – under the legislation, it essentially says that the proceeding – the recounting shall be done in private with various representatives of the candidates or the parties there. But the public is not allowed to be present at that recount. And that in itself is a pretty fair indication of the nature of the proceeding that a recount is.

It is an administrative process and does not require any adjudication by the judge, other than looking at a particular ballot and saying “yes” or “no” with respect to the ballot. And it is a process that focuses only on the ballots themselves, on the papers themselves, on the markings or the presence or absence and the nature of the markings on those papers . It is not a process that contemplates looking at the constitutionality of the election process itself. Nor is it a process which, according to legislation as I appreciate it, looks at the qualifications of those who may have cast ballots.

It is simply looking at the ballots that have been cast. It’s not – it does not look at the residence of the persons who have cast ballots. And the identities of those who have cast ballots are of course secretive. It does not contemplate an examination of the voters’ roles or anything of that nature. So it is simply a counting process and a re-adding of the ballots and a checking of the arithmetic and what have you. So in that sense I’m not prepared to allow the grafting of other issues onto that process, either in examination of the constitutionality of various sections in the Elections Act . But take Mr.

Budden’s point. There may well be issues that should be looked at in that vein. But it does not contemplate by – anywhere. I mean, it can’t come close to a recount being turned into an assessment of the constitutionality of the legislation. Neither does the recount process, as I indicate, contemplate getting into evidence on the – either the identity of voters or the residence or other qualifications of those persons to vote again. They may be legitimate issues.

It should be raised and looked at but not in the context of a recount. … I should say with respect to the other issues raised with respect to recount, namely the residence issues, of I think two people that it was suggested were not properly residents of this district. Those issues go to the qualifications of particular electors. And in my view the – those issues are evidentiary issues. They go not to the quality of the paper, if you will, which is what a recount is directed to but to the qualifications of electors to cast ballots in the first place. And those issues are not susceptible to the recount process.

Obviously they can be raised in an appropriate proceeding, whether some of the (inaudible) elections provisions or whether there is another mechanism to address those issues and the general validity of the election, that’s fine. Mr. Budden will pursue that. But in my view it cannot be done – it is not appropriately done in the recount process.

So any examination of the qualifications of the electors, any examination of the constitutionality of the special ballot provisions needs to be done in an appropriate proceeding. … [emphasis added] [ 20 ] I am in complete agreement with the recount process as described by Orsborn, J. The focus is the ballots and the nature of the marking on the ballots. It does not require any adjudication by the judge, other than saying “yes” or “no” with respect to each ballot.

Summary [ 21 ] Based on the foregoing authorities I adopt the following non-exhaustive list of principles as applicable to the within application: • The onus is on the Applicant to establish one or more of the grounds set out in s. 165 of the Act ; • The Applicant is to establish a prima facie case.

The threshold is therefore low, requiring the judge to look at the facts objectively and consider whether it has been met; • Merely stating a belief that something has occurred, without some factual basis upon which the judge can reasonably draw conclusions, does not meet the prima facie standard; • Some limited weighing of the evidence is permitted, such that the judge has a discretion to give no weight to evidence determined to be unreliable;

• If the threshold is met the judge has no discretion, but must appoint a time and place to recount; and • The recount itself is an administrative process, albeit presided over by a judge, which involves looking at each ballot cast to determine if it is accepted or rejected. Application of the Legal Principles [ 22 ] I turn now to an application of the foregoing legal principles to the affidavits as filed in this case.

The Affidavits Generally [ 23 ] There were three affidavits provided: that of the Applicant, Alison Coffin; an election scrutineer for the NDP, Judy Vanta; and a scrutineer for the Liberal party candidate, Jeanette Fleming. [ 24 ] With respect to Ms. Fleming’s affidavit, s. 165 does not expressly contemplate an affidavit in response to the application, but nor is one prohibited. I raise this, as while I am permitted to engage in some weighing of the evidence, the engagement is limited.

Given the low threshold envisaged by s. 165 the judge hearing the application must be careful that it not turn into a trial on the merits of the recount. [ 25 ] That said, in this case the Court is not faced with conflicting evidence. As we shall see, the affidavit of Ms. Fleming simply puts more “meat on the bones”, as it were, with respect to certain of the matters raised by Ms. Vanta. In argument, counsel for the Applicant candidly acknowledged that such was the case. The Affidavit of Alison Coffin [ 26 ] In her affidavit, dated 1 April 2021, Ms.

Coffin states that she has “personal knowledge of the facts and matters contained herein, except where otherwise stated to be based upon information or belief.” The matters of which Ms. Coffin has personal knowledge include her previous experience as a scrutineer (paragraph 2) and most of those matters described in paragraphs 5 and 6 of her affidavit, as follows: 5. I have heard from individuals who self-identified as NDP supporters who are registered voters in the District who requested a mail-in ballot and never received one. Many of these individuals requested a ballot early, and made repeated requests. 6.

I have heard from individuals who self-identified as NDP supporters who are registered voters in the District who received a mail-in ballot mere days before the election, and therefore have reason to believe that they did not arrive at ElectionsNL headquarters in time to be counted and included in the declared election results. [ 27 ] However, whether or not voters who requested a ballot actually received one, and whether or not ballots postmarked prior to March 25th, but which arrived at Elections NL after that date, ought to have been counted, are matters beyond the scope of a judicial recount under s. 165 (see, Mitchell ).

It may be a legitimate issue in the context of a challenge to the election itself, but that is not this case. Indeed, counsel for the Applicant informed the Court that this issue has been raised in a companion application, which seeks a controverted election under

Part II of the Act . [ 28 ] The same may be said with respect to the issue raised by Ms. Coffin in paragraph 8 of her affidavit. Here she is not speaking from personal knowledge, but from what she has been told by others. Paragraph 8 reads: 8. I understand from speaking with officials at ElectionsNL that many individuals in St. John’s East-Quidi Vidi were added to the voters list without being properly sworn, and without providing proper identification.

Thousands of individuals were added to the voters list upon having a simple telephone call with ElectionsNL workers, and were provided with ballots, or in some cases were provided with multiple ballots, without producing proof of identity. I understand that there was no verification process to ensure that anyone who was added to the voter list was in fact the person they claimed to be, or that they lived in the district in which they voted.

The updated voters list, with the indication of how many people in the District were newly added, has not yet been released by ElectionsNL to my knowledge. [ 29 ] This circumstance is not unlike that alleged in Mitchell , where the applicant sought to look into the qualifications of those who may have cast ballots. As Orsborn, J. observed, the recount looks at the ballots that have been cast. It does not look into the qualifications, or residence of those who voted.

Again, this may be an appropriate issue in a challenge to the election, but not on an application under s. 165 of the Act . [ 30 ] Finally, in paragraph 9 of her affidavit Ms. Coffin expresses other concerns, which she agrees do not form part of her application for a recount. [ 31 ] To summarize, then, there are no facts alleged by Ms. Coffin which might properly be relied upon to support the threshold requirement of s. 165 of the Act . I would hasten to add that this is not to be taken as a criticism of the issues raised by her, for on these issues I express no opinion.

Rather, a recount is simply not the proper forum. The Affidavit of Judy Vanta [ 32 ] The second affidavit filed in support of the application is that of a scrutineer for the NDP, Judy Vanta, dated 1 April 2021. [ 33 ] Ms. Vanta tells us from personal experience that “the majority of ballots were mailed to a central location where approximately

10 separate polls were counted simultaneously over the course of 18 days, for 9-12 hours a day” (paragraph 4). As a result of many ballots being counted at the same time, from multiple districts in the province, Ms. Vanta states that she was “unable to adequately observe the counting process or review each ballot cast in the district of St. John’s East-Quidi Vidi” (paragraph 4). According to Ms. Vanta, this circumstance was compounded by the social distancing requirements in response to the COVID-19 pandemic. The challenges which Ms.

Vanta says she faced led her to conclude (at paragraph 5): As a result of same, I believe that there were some ballots which should not have been counted as they were unclear, or the mark upon them was an identifying mark, contrary to the Act . [ 34 ] In this averment Ms. Vanta does not speak from personal knowledge, having actually witnessed ballots which she says ought not to have been counted. With due respect, Ms.

Vanta’s belief, however honestly held, is pure speculation. [ 35 ] Further, I reject the Applicant’s argument that the circumstances presented by the electoral process were such as to place the Applicant in the paradox of a “Catch-22.” First, while Ms. Vanta may not have seen every ballot, presumably in performing her services as a scrutineer, she at least saw some of those cast. We have no evidence as to what proportion Ms. Vanta witnessed, but regardless, no evidence is offered with respect to a single ballot allegedly counted in error.

Second, there is no evidence, (for example from other scrutineers), from which an inference might reasonably be drawn that one or more of the ballots accepted ought to have been rejected. Finally, as we shall see, Ms.

Vanta was able to view each and every rejected ballot, as well as those declaration envelopes deemed rejected by ElectionsNL officials. [ 36 ] If an applicant for a recount could circumvent the requirements of s. 165 of the Act , with the simple assertion that for one reason or another the applicant’s scrutineer did not witness every ballot, then the threshold requirement for a recount would be rendered meaningless. [ 37 ] In paragraph 6 of her affidavit Ms. Vanta states that for the first week or so she was unable to view the tally sheets, where counted ballots were recorded for each candidate.

In paragraph 8, Ms. Vanta is more specific, stating that when she was finally permitted to see the sheets: 8. Even once we were finally permitted to see the tally sheets, I observed at least one error in tallying the vote. [ 38 ] It is not clear what Ms. Vanta means by “at least”, so I take this to mean that Ms. Vanta personally witnessed one error in tallying the vote. However, she does not identify the electoral district in which this error is supposed to have occurred.

Yet we know from paragraph 4 of her affidavit that many ballots were counted from multiple districts at the same time. [ 39 ] The ambiguity is resolved by Jeanette Fleming. In paragraph 8 of her affidavit, Ms. Fleming states: 8. I have read the affidavit of Judy Vanta. I do not believe her statement set out in paragraph 8 of her affidavit refers to the count in the electoral district of St. John’s East-Quidi Vidi; instead, it is in reference to a temporary error in Mount-Pearl North that had under- calculated the Liberal vote in that district.

To the best of my knowledge, there was no error in tallying the vote in the electoral district of St. John’s East-Quidi Vidi. [ 40 ] Ms. Fleming’s explanation, when compared with the ambiguity in Ms. Vanta’s affidavit, leads me to conclude, on a limited weighing of the evidence, that it does not “appear” that the error was in relation to the district in question on this application. Indeed, during argument counsel for the Applicant acknowledged that this was the case. [ 41 ] Paragraph 7 of Ms. Vanta’s affidavit reads, as follows: 7. I did have a chance to review all of the ballots that were deemed spoiled in St.

John’s East-Quidi Vidi. In my view, at least some of those ballots ought to have been counted, as they indicated voter intention and did not disclose any identifying marks. [ 42 ] Ms. Vanta is here speaking from personal knowledge, having reviewed “all of the ballots that were deemed spoiled in St. John’s East-Quidi Vidi.” She then correctly identifies two of the criteria for the acceptance of ballots, those which indicate voter intention and those which do not disclose the identity of the voter.

She offers the opinion that “at least some” of the ballots she observed ought not to have been rejected on these grounds, but offers no evidence as to why such is the case. [ 43 ] The argument that the Applicant is unable to provide evidence in support of the threshold for a recount, due to COVID-19 restrictions and the electoral process, rings particularly hollow in the face of this statement. For here Ms. Vanta is speaking of ballots actually witnessed by her, some 35 in all, according to Jeanette Fleming. [ 44 ] As a scrutineer, Ms.

Vanta was therefore in a position to question election officials as to the reason(

s) for rejecting a ballot. It was thus easily within the Applicant’s grasp to offer some evidence as to why, in Ms. Vanta’s opinion, a rejected ballot ought to have been counted. Some evidence by which it is “made to appear” that the threshold in s. 165 of the Act has been met. [ 45 ] With respect, it is incorrect for the Applicant’s counsel to suggest that Ms. Vanta was left in the dark. [ 46 ] The within circumstance may be compared with that in Mitchell .

In concluding that the evidence in that case did not meet the threshold, Orsborn, J. stated: I’m not satisfied that the evidence takes me to that point in this case. The only affidavit evidence they is from – well, it’s the affidavit of Ms. Mitchell supporting the application. But the direct evidence of the counting comes from Mary Matthews. Her evidence points to – and she says one ballot was improperly counted. That ballot had a peculiar and distinctive marking on it, besides the name of the candidate for whom the ballot was counted.

And obviously it appears from the affidavit, there was discussion among those present about the nature of the mark and whatnot.

But in any event, the (inaudible) by way of affidavit is that there was a particular distinctive marking besides the name – beside the name of a candidate. The Elections Act provides that generally a ballot should be marked with an X, but it also provides that a ballot may not be rejected if it has a mark other than an X, provided that the mark is not such as to identify the name of the elector. There is nothing in the affidavit evidence before me that suggest in any way, shape or form that the peculiar or distinctive marking went to identify the name of the elector in question.

So all I am left with is a mark that wasn’t an X besides the name of the candidate. And that’s it. And that to me does not make it appear that that particular ballot was improperly counted. And so for those reasons I’m not satisfied that evidentiary threshold has been crossed so as to entitle the applicant to a recount. [ 47 ] In Mitchell specific affidavit evidence was offered as to why one ballot was improperly counted. Namely, that the ballot had a peculiar mark on it other than an “X”.

Orsborn, J. observed that there was nothing in the affidavit evidence to suggest that the peculiar, or distinctive mark, went to identify the elector in question. He was left simply with evidence of a mark, other than an “X”, beside the name of the candidate. Under the circumstance the Justice was not satisfied that the threshold had been reached. [ 48 ] Unlike Mitchell , in the instant case we have no evidence as to why Ms. Vanta believes a ballot which was rejected should have been counted.

Rather, we have a general statement of two of the criteria for accepting ballots, followed by an assertion that some of the rejected ballots ought to have been accepted. With respect, Ms. Vanta’s opinion is not evidence. As such, there are no facts in this paragraph upon which it is “made to appear” that any of the preconditions for a recount in s. 165 of the Act exist. [ 49 ] Finally, in paragraph 10 of her affidavit Ms. Vanta references “blue envelopes” which were unopened in the district of St. John’s East-Quidi Vidi. She states: 10.

I had a chance to review all of the ‘blue envelopes’ which were unopened in the district of St. John’s East-Quidi Vidi. These are envelopes that were mailed but were deemed to be invalid due to missing or misplaced signatures on the voter declaration form. These envelopes were not opened, so the ballots contained within were not counted. In my view, at least some of these envelopes ought to be opened and counted. [ 50 ] Here Ms. Vanta is speaking from personal knowledge of “envelopes” deemed invalid due to “missing or misplaced signatures on the voter declaration form.” Ms.

Vanta states that in her view “some of these envelopes ought to be opened and counted.” However, she offers no explanation for why this is the case, or why only some of the envelopes ought to be opened. [ 51 ] In her affidavit Jeanette Fleming explained that the reference to “blue envelopes” is to special ballots contained in blue envelopes, 52 of which were rejected. In argument, counsel for the Applicant agreed with this characterization. Both Ms. Vanta and Ms.

Fleming seem to be in agreement that the envelopes were not opened as the elector did not sign, or otherwise properly complete the declaration. [ 52 ] The Act is silent as to what happens to special ballot envelopes on a recount and specifically whether or not the subject of a completed declaration form is fodder for the judge’s consideration.

Where rejected by election officials, the envelopes containing the ballot are set aside unopened and the ballot not counted. [ 53 ] Insofar as the process involved a decision of election officials in the first instance, and, like the counting of ballots is subject to review by scrutineers, I see no reason in principle why declarations should not be the subject of review on a recount. The review in this circumstance would be limited to a determination of whether the requirements in s. 86 of the Act have been met.

Assuming the ballot contained therein is otherwise valid, the improper rejection of the declaration amounts to an improper rejection of that ballot. However, as with the ballots themselves, there must be some evidence to support an opinion that a declaration was improperly rejected. An assertion without more is not enough. [ 54 ]

Section 86.4(3) (

d) of the Act provides that in completion of the Special Ballot the elector shall “complete and sign the declaration.”

Section 86.6, in turn, provides that the Special Ballot Administrator (or a special ballot officer) shall examine the declaration envelope and determine that the “declaration has been completed and properly signed.” Where the declaration has not been completed, or the elector has failed to sign the declaration envelope, the Administrator, or officer, is to write “rejected” on the envelope and the reason for its rejection and set the envelope aside unopened (s. 86.6(5)). [ 55 ] In the face of this statutory requirement it is not enough to simply assert that some of the envelopes ought to be opened and counted.

Some explanation is called for if it is “to appear” that one of the prerequisites for a recount in s. 165 of the Act has been met. [ 56 ] Clearly unsigned declarations do not qualify, as the Act is quite specific in requiring that these be rejected. But what of irregularities in how the declaration is signed, such that the signature is present, for example, but perhaps below the line prescribed for signing?

Counsel for the CEO suggested in argument that these would have been accepted and opened. [ 57 ] The question is academic in this instance, however, as I have no evidence as to why an unopened declaration ought to have been opened. What the Court has is Ms. Vanta’s expression of opinion, which taken alone does not make it “appear” that the requirement for a recount has been met.

disposition [ 58 ] This completes my review of the affidavits filed in this matter. For the reasons expressed, I am not satisfied that it has been “made to appear by affidavit” that any of the prerequisites for a recount under s.165 of the Act have been shown to exist. The threshold for a recount has therefore not been met and the application is dismissed. [ 59 ] In light of the paucity of decisions from this jurisdiction on the application of s. 165 of the Act , some allowance must be made for the fact that the Applicant was sailing into somewhat unchartered waters. For this reason, each party shall bear their own costs. _____________________________ Donald H. Burrage Justice