Alison Coffin First Plaintiff And: Whymarrah Whitby Second Plaintiff And: Bruce Chaulk First Defendant And: Sherry Morrissey Second Defendant And: John Abbott Third Defendant, 2023 NLSC 156

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Coffin v. Chaulk , 2023 NLSC 156 Date : December 12, 2023 Docket : 202101G2556 Between: Alison Coffin First Plaintiff And: Whymarrah Whitby Second Plaintiff And: Bruce Chaulk First Defendant And: Sherry Morrissey Second Defendant And: John Abbott Third Defendant Before: Justice Garrett A. Handrigan Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 27, 2023

Summary: Alison Coffin sued Bruce Chaulk, Sherry Morrissey and John Abbott asking for an order setting aside the results of the 2021 GeneralElection in the Electoral District of St. John’s-Quidi Vidi. She tendered an expert’s report about the impact on disabled persons of mail-in voting in the Election. Mr. Chaulk and Mr. Abbott oppose using the report in the proceedings and Mr. Chaulk applied to exclude it. The Court allowed the application. It found that the report was unnecessary and tendered by someone who was not properly qualified asan expert.

It also noted that admitting the report might give it more credit and weight than it warrants. Costs are in the cause. Appearances: Allison S. Conway Appearing on behalf of the Plaintiffs Andrew A. Fitzgerald, K.C. Appearing on behalf of the First and Second Defendants G. John Samms Appearing on behalf of the Third Defendant Authorities Cited: CASES CONSIDERED: Kerr Controls Ltd. v. Yetman (1995), (NL SC), 128 Nfld. & P.E.I.R. 271 271, 53A.C.W.S. (3d) 1236 (Nfld. S.C. (T.D.)); Opitz v. Wrzesnewskyj, 2012 SCC 55; Oleynik v.

Memorial University of Newfoundland andLabrador, 2021 NLSC 99; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 STATUTES CONSIDERED: Elections Act, 1991, S.N.L. 1992, c. E.-3.1 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] On April 12, 2021, Alison Coffin and Whymarrah Whitby filed an Originating Application in this Court naming Bruce Chaulk,Sherry Morrissey and John Abbott as Respondents. In their application, Ms. Coffin and Mr.

Whitby asked for orders declaring the 2021General Election that took place in the Electoral District of St. John’s East-Quidi Vidi on February 13, 2021, null and void and directingthat a new election take place without delay. [2] Ms. Coffin led the Newfoundland and Labrador New Democratic Party at the time of the election, and she was also the partycandidate in the Electoral District of St. John’s East-Quidi Vidi, while Mr. Whitby claimed to be a “qualified elector” (paragraph 2 of theOriginating Application) in the same district. Mr.

Chaulk was the Chief Electoral Officer for the Province of Newfoundland andLabrador for that General Election and Ms. Morrissey was the Returning Officer for the St. John’s East-Quidi Vidi district. Mr. Abbottrepresented the Liberal Party of Newfoundland and Labrador in the same district and was ultimately declared to have won the district. [3] Meanwhile, on June 9, 2021, I granted an Order converting the proceedings from an Originating Application to a Statement of

Claim. Ms. Coffin and Mr. Whitby then filed a Statement of Claim, which was generally the same as their Originating Application, in substance, if not in form.Mr. Chaulk and Ms. Morrissey filed their Statements of Defence to the Claim on June 18, 2021, and Mr. Abbott did likewise on June 22,2021. [4] The proceedings are slowly tracking towards trial readiness. In that event, Ms. Coffin and Mr. Whitby, the Plaintiffs notified the Defendants that they intend to rely on opinion evidence from Nancy Reid,Executive Director of the Coalition of Persons with Disabilities for Newfoundland and Labrador to prove their claim.

In particular, thePlaintiffs say they will present in evidence a Report from Ms. Reid, dated March 27, 2023, entitled “Conditions of the Impact ofExclusive Special Ballot Voting on Persons with Disabilities in Election 2021”. [5] Mr. Chaulk, the First Defendant, disagrees with the Plaintiffs and says that the proposed report is inadmissible as expertopinion evidence. He applied by Interlocutory Application under Rule 29.10 (

g) of the Rules of the Supreme Court, 1986, S.N.L. 1986, c.42, Sch. D (“the Rules”) on September 25, 2023, for an order that the proposed Report is inadmissible. Mr. Abbott, the Third Defendant,supported Mr. Chaulk’s application with a Brief, and the Plaintiffs submitted a Memorandum of Fact and Law opposing it. I heard theInterlocutory Application on Monday, November 27, 2023, and reserved my judgment until now. The Issue May the Plaintiffs rely on Nancy Reid’s Report to prove their Claim? [6] The parties agree that the general issue has two components: 1.

Does the Report meet the threshold of admissibility as expert opinion evidence? 2. If it does, do the risks of admitting it outweigh the benefits of doing so? The Law Statutory Authority – The Rules [7] Rule 29.10(

g) of the Rules gives this Court broad discretion to hear and decide an application such as Mr. Chaulk has broughthere. It reads: 29.10 On a hearing of an application, the Court may on such terms as it thinks just…. (

g) exercise such jurisdiction and grant any otherorder as it deems just. [emphasis added] Case Law – The Rules [8] In Kerr Controls Ltd. v. Yetman (1995), (NL SC), 128 Nfld. & P.E.I.R. 271, 53 A.C.W.S. (3d) 1236 (Nfld.S.C. (T.D.)), Green, J.A., went so far as to say of the discretion available to this Court in an application under Rule 29.10 (

g) that theRule confers “… a general discretion as an applications court … to grant consequential relief, even if not specifically asked for, in orderto do justice in a particular case”. [emphasis added] Statutory Context – Elections Act, 1991 [9] In their Statement of Claim, the Plaintiffs ask for relief by sections 228(1) and 253(1) of the Elections Act, 1991. They read,as pertinent here: 228.

(1) An election application is one that complains (

a) of an improper return of an election or improper election of a member to the House of Assembly; (

b) of no return or a double return of the election of a member to the House of Assembly; or (

c) of an unlawful act by a candidate not returned by which he or she is alleged to have become disqualified to sit in the House ofAssembly. …

(1) At the conclusion of the trial the trial judge shall determine whether the candidate whose return or election is complained of or another person was returned or elected, or whether the election was void, and immediately certify that determination in writing to the speaker. Elections – Case Law [ 10 ] In Opitz v. Wrzesnewskyj , 2012 SCC 55 , the Supreme Court of Canada endorsed the “substantive approach” for deciding whether an election should be annulled because of an “irregularity”.

Noting that the “applicant…bears the legal burden of proof throughout” (paragraph 52), this is how the Court explained the “substantive approach”: [58] … First, an applicant must prove that there was an “irregularity”: breach of a statutory provision designed to establish a person’s entitlement to vote…. [59] Second, an applicant must demonstrate that the irregularity “affected the result” of the election: someone not entitled to vote, voted…. [60] An “irregularity” constitutes evidence from which it may be inferred that a voter was not entitled to vote, because it is a breach of a procedure designed to establish the voter’s entitlement.

As indicated, proof of an irregularity may itself be sufficient to show that an invalid vote was cast, thereby affecting the result of the election. [61] Under … [the substantive approach], an applicant who has led evidence from which an irregularity could be found will have met his or her prima facie evidentiary burden.

At that point, the respondent runs the risk of having the votes in issue set aside, unless he or she can adduce or point to evidence from which it may reasonably be inferred that no irregularity occurred, or that despite the irregularity, the votes in question were nevertheless valid…. [62] Once all of the evidence from both parties is before the judge, the judge will decide, focusing on substance rather than form, whether the applicant has met his or her burden of establishing on a balance of probabilities that someone who voted was not entitled to do so.

If the court is not so satisfied, then the applicant has failed to meet his or her onus. Opinion Evidence – Case Law [ 11 ] In Oleynik v. Memorial University of Newfoundland and Labrador , 2021 NLSC 99 , Noel, J. of this Court set out the criteria for admitting expert opinion evidence in a proceeding in paragraphs 6-11 of his judgment. Noel, J. was considering whether the applicant, Mr.

Oleynik, could rely on an expert report dealing with the integrity of emails from which the internet headers (or metadata) had been removed, to support his claim that the emails were compromised: [6] The parties agree on the legal test for admissibility of expert reports. [7] The leading authority is the Supreme Court of Canada decision in White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23 . [8] At paragraph 23, the proponent of the evidence, in this case Oleynik, must establish the threshold requirements of admissibility. These are the four Mohan factors: 1. Relevance; 2. Necessity; 3.

Absence of an exclusionary Rule; and 4. A properly qualified expert. [9] Relevance at this threshold stage refers to logical relevance. Evidence that does not meet the threshold requirements must be

excluded. [10] Justice Cromwell in White Burgess (at para. 24) noted a second discretionary gatekeeping step. I am to balance the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justifies (sic) the risk. [11] So even if I were to determine the expert evidence is relevant, reliable, and necessary, I must still consider the effect that the admission of the expert evidence will have on the “consumption of time, prejudice, and confusion” to the judicial review and appeal proceedings.

In other words, the Harris reports cannot be admitted if the prejudicial effect outweighs the beneficial value to the litigation process. [ 12 ] From Oleynik , I deduce that for Mr. Chaulk to succeed in this application he may show at the first level that Ms.

Reid’s Report is either irrelevant, unnecessary, it violates an exclusionary rule of evidence or it was not authored by a properly qualified expert; and even if he does not prove that any of those criteria apply, he may still show at the next level that, to paraphrase Noel, J. in Oleynik , the risks of admitting the Report outweigh the benefits of doing so. [ 13 ] Before leaving the discussion of the law that applies to this application, let me summarize the steps that Mr. Chaulk must follow to succeed in his application to exclude Ms. Reid’s Report: 1. He may prove one or more of the following about the Report:

a) It is irrelevant;

b) It is unnecessary;

c) It violates an exclusionary rule; or

d) Its author is not a properly qualified expert. 2. If he cannot prove one or more of those factors, he may still prove that the risks of admitting the report outweigh the benefits of doing so. 3. In this risk-benefit analysis, he may prove that the report will not assist the Court in deciding if there was an “improper return of an election or improper election of a member to the House of Assembly”. 4. If he fails to prove that it will not assist the Court, he may nevertheless show that the risks of admitting the report outweigh the benefits of doing so. 5.

The burden of proof throughout is on a balance of probabilities. [ 14 ] This is the law I will apply to this application. I turn now to analyze the issues that I stated earlier, starting with the background to them. Analysis Background [ 15 ] Nancy Reid is Executive Director of the Coalition of Persons with Disabilities for Newfoundland and Labrador. Ms. Reid authored the Report that I referred to earlier, on March 27, 2023. She described it as, “Considerations of the impact of exclusive Special Ballot voting on persons with disabilities in Election 2021”. Ms.

Reid makes it clear in the opening paragraph of her Report that the “following information” is “… based on my professional experience as an advocate for persons with disabilities and on my living experience as a disabled person and as the parent of a disabled young adult ”, (page 1, paragraph 1) [emphasis added]. [ 16 ] The Report runs to 8 pages and it shows that Ms. Reid is heavily involved in the disabled community in Newfoundland and Labrador and is very attuned to the challenges that disabled persons face daily.

She makes clear that access is fundamentally important to disabled persons and she notes that the barriers they face daily may be “physical, attitudinal and systemic...” (page 3, paragraph 5). Then Ms. Reid describes her Report as “… my thoughts about the impact on persons with disabilities of the decision to move to mail-in ballot only in the provincial election of 2021”, (page 3, paragraph 1). [ 17 ] She also compares the experiences of disabled voters in the 2015 and the 2021 General Elections and notes that the “confidence [she had from the 2015 election] was lost in February 2021”. She explains why:

Persons with Disabilities are provided equity when the electoral process offers choice in the way a person votes and through the use of appropriate accommodations as needed in each of these situations. On February 12, 2021; that choice in the way a person votes was removed for residents of the province. In response to a change in the Public Health Alert Level in the province, the decision was made by the Chief Electoral Officer to shift to exclusively vote-by-mail in the 2021 election.

While the consequences of this decision may have been inconvenient for some, for others it created a barrier to the voting process (page 5, paragraph 2). [ 18 ] Ms. Reid then provides anecdotal evidence about persons she knew who experienced problems with the “voting process” in 2021, including her daughter, who ultimately “… was able to vote through the mail-in ballot in 2021, but only after specific accommodations were made directly by the Chief Electoral Officer to enable her to do it”, (page 7, paragraph 1). [ 19 ] Ms.

Reid clearly believes that it was her advocacy for her daughter and her persistence in ensuring that her daughter could vote independently that caused the Chief Electoral Officer to make the “specific accommodations” that allowed her daughter to vote. Ms. Reid was upset with the extent that she had to intervene for her daughter, and almost apoplectic at her need to do so: As a mother I am glad she got to vote, I am appalled though that it took this level of intervention to make it happen.

It should not have been necessary that I use my professional title and connections to enable my daughter access to her ‘assured’ right to vote as a citizen of this province and country. As an advocate I am concerned about the reality that so many people with disabilities can be so easily denied access. As a mother, I am concerned about the potential disenfranchisement of my daughter if I am no longer here to advocate on her behalf (page 7, paragraph 1) [emphasis added]. [ 20 ] Ms.

Reid contends that “…people with disabilities were denied accommodations…”, (page 7, paragraph 4); and so “…we can assume that a percentage of the population with disabilities in Newfoundland and Labrador were denied access to the electoral process by the decision of February 12, 2021”, (page 7, paragraph 4; page 8, paragraph 1) [emphasis added]. [ 21 ] I turn now to discuss the admissibility of Ms. Reid’s report against this background. Discussion [ 22 ] For Mr. Chaulk to succeed in excluding Ms. Reid’s report, he may show either that it is irrelevant, unnecessary, violates an exclusionary rule or that Ms.

Reid is not a properly qualified expert. If he fails in that, he may still show that the risks of receiving the Report are greater than the potential benefits it may bring. Relevance of Report [ 23 ] Ms. Coffin challenges the outcome of the 2021 General Election in the Electoral District of St. John’s-Quidi Vidi because of alleged “irregularities and errors throughout the Election”, and she specified twenty-eight categories of the same in sub-paragraphs 43(

a) to 43(bb) of her Statement of Claim. In sub-paragraph 43(n), Ms. Coffin alleges that the cancellation of in-person voting required Mr. Chaulk to make accommodations for persons with disabilities that he failed to provide, just as Ms. Reid claims in her Report. Thus, it would appear that Ms. Reid’s Report is relevant to the issues in these proceedings, to that extent, at least. Necessity of Report [ 24 ] Ms. Reid is heavily involved in the community of disabled persons in this Province, both as an advocate for its constituents and because she and family members have special needs themselves. Additionally, Ms.

Reid is articulate and committed to those issues and she is clearly intent on improving the lifestyles and functionalities of the disabled. And to that end, her “report” is straight up advocacy, unmixed and unvarnished, and she intends it to be so. [ 25 ] I note, for example, this comment from her last paragraph: “If the number of persons who were denied access to the vote was 10,000 or if it were 1, the principle is unchanged”. So, Ms.

Reid is as concerned about the general welfare of disabled persons as she is about the impact, if any, on those who did or did not vote in the 2021 General Election. [ 26 ] I, on the other hand, am primarily concerned in these proceedings with the performance of the electoral process in the Electoral District of St. John’s East-Quidi Vidi in the 2021 General Election. While the electoral needs of disabled voters in the district are relevant and they must be considered, they are ancillary to the cause that I have been served with and are best pursued in other proceedings. I am apprehensive that Ms.

Reid’s Report may distract from that pursuit, and receiving her report and ascribing “expertise” to it will add unjustifiably to its cachet. [ 27 ] But I am also persuaded that Ms. Reid’s Report is “unnecessary”. It presents to me more as a “can-say, will-say” statement intended to inform counsel what they may expect to hear from a witness, albeit a bit longer and more focused on a particular goal than counsel might need or appreciate. [ 28 ] Thus, instead of tendering Ms. Reid’s Report as an “expert’s report”, if Ms. Coffin cares to put Ms.

Reid’s thoughts before the Court about the impact on disabled persons in the 2021 General Election in the Electoral District of St. John’s-Quidi Vidi, she may consider calling Ms. Reid as a fact witness. Of course, if she does, Ms. Reid will have to speak directly to the matters in issue in the proceedings and from her own personal knowledge alone, and counsel for the Defendants will likely want to cross-examine her. If Ms. Coffin and Ms. Reid follow those dictates, I expect Ms.

Reid will help me more in deciding the matters in issue in these proceedings than I would get from her Report. [ 29 ] Finally, I note about Ms. Reid’s Report, albeit parenthetically, that there is no evidence that it actually relates to voting in the Electoral District of St. John’s-Quidi Vidi during the 2021 General Election, which is the focus of Ms. Coffin’s claim. Exclusionary Rule [ 30 ] I am unaware of any exclusionary rule of evidence that Ms. Reid’s Report violates.

Properly Qualified Expert [ 31 ] In White Burgess Langille Inman v.

Abbott and Haliburton Co. , 2015 SCC 23 , Cromwell, J., writing for the majority of the Court discussed admitting evidence from an expert who lacked independence and was not impartial and concluded that those attributes were as relevant, if not more so, to the admissibility of the evidence than to the weight that may be assigned to the evidence if it is admitted: Following what I take to be the dominant view in the Canadian cases, I would hold that an expert's lack of independence and impartiality goes to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted.

That approach seems to me to be more in line with the basic structure of our law relating to expert evidence and with the importance our jurisprudence has attached to the gatekeeping role of trial judges. [ 32 ] Ms. Reid leaves no doubt that she is an advocate for persons with disabilities.

She begins her Report by noting that “[t]he following information is based on my professional experience as an advocate for persons with disabilities and on my living experience as a disabled person and as the parent of a disabled young adult”, (page 2, paragraph 1). [ 33 ] Then she provides her background as an advocate: • I began my advocacy career more than 10 years ago with an internship with the Independent Living Resource Centre, now Empower. • For the past seven years I have been employed with the Coalition of Persons with Disabilities Newfoundland and Labrador, (the Coalition) where I have been the Executive Director since 2019. • …I am also the Chair of the Network of Disability Organizations in NL as well as the provincial representative from Newfoundland and Labrador on the Council of Canadians with Disabilities. • I am often called on to consult with various disability and accessibility related conversations locally, provincial and nationally. • …I was a member of the Provincial Advisory Council for the Inclusion of Persons with Disabilities for the Minister of Children Seniors and Social Development from 2014-2021. (page 2, paragraph 2). [ 34 ] As well, Ms.

Reid’s Report is replete with the language of advocacy. She not only highlights her roles as an advocate, but she identifies as one. For example, when she discusses her involvement in enabling her daughter to vote in the 2021 General Election and the success she had for her, Ms. Reid uses the phrase “as an advocate” and is concerned “as a mother” when she will no longer be available to “advocate” for her daughter. [ 35 ] I find that Ms.

Reid is not a properly qualified expert because she lacks the “independence” and “impartiality” about her subject matter that is expected of an expert and is likely lacking in an advocate. Let me be clear; I am not concerned that Ms. Reid deliberately skewed her Report to omit matters that do not support her goals. In fact, she noted gratefully that Mr. Chaulk, as Chief Electoral Officer, intervened personally to ensure that her daughter got to vote in the 2021 General Election. [ 36 ] Rather, I am concerned that Ms.

Reid does not have a balanced view of her subject matter and would not be able to provide an objective view of the issues here to assist me in my role. Again, I refer to her comments about Mr. Chaulk’s intervention to assist her daughter: “My daughter was able to vote through the mail-in ballot in 2021, but only after special accommodations were made directly by the Chief Electoral Officer to enable it for her” [emphasis added]. She implies that Mr. Chaulk’s assistance was a “one-off” intervention to help her daughter, discounting the possibility that Mr. Chaulk may have offered similar help to others in need.

Risk-Benefit Analysis [ 37 ] I need not perform this analysis because I exclude the Report because it is neither necessary to the proceedings nor tendered by a properly qualified expert. However, let me say that admitting the Report would not help me to decide the issues in this cause and carries with it the risk that making the report part of the record would give it more credit and weight than it warrants in these proceedings. Thus, by that analysis, I will also exclude it. Costs [ 38 ] Costs are in the cause.

Summary and Conclusion [ 39 ] Alison Coffin sued Bruce Chaulk, Sherry Morrissey and John Abbott asking for an order setting aside the results of 2021 General Election in the Electoral District of St. John’s-Quidi Vidi. She tendered an expert’s report about the impact on disabled persons of mail-in voting in the Election. Mr. Chaulk and Mr. Abbott oppose the use of the report in the proceedings and Mr. Chaulk applied to exclude it. [ 40 ] The Court allowed the application. It found that the report was unnecessary and tendered by someone who was not properly qualified as an expert.

It also noted that admitting the report might give it more credit and weight than it warrants. Costs are in the cause. Order [ 41 ] In the result, I order that:

1. The application is allowed. 2. Nancy Reid’s Report dated March 27, 2023 may not be tendered in evidence by Alison Coffin to support her claim that there was an improper return of an election or improper election of a member to the House of Assembly in the Electoral District of St. John’s-Quidi Vidi in the 2021 General Election. 3. Costs are in the cause. _____________________________ Garrett A. Handrigan Justice