Farmere v. Hubbard and Krog, 2018 BCPC 280

Citation: Farmere v. Hubbard and Krog 2018 BCPC 280 Date: 20181030 File No: C-85912 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF AN APPLICATION FOR A JUDICIAL RECOUNT PURSUANT TO

SECTION 148 OF THE LOCAL GOVERNMENT ACT BETWEEN: RAYMON TRAVIS FARMERE CLAIMANT AND: DON HUBBARD and LENNARD KROG RESPONDENTS ORAL RULING ON APPLICATION OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing on his own behalf: R. Farmere Appearing on his own behalf: L. Krog Appearing as representative for City of Nanaimo: S. Gurrie Place of Hearing: Nanaimo , B.C. Date of Hearing: October 30, 2018 Date of Judgment: October 30, 2018

INTRODUCTION [ 1 ] THE COURT: I have before me an Application made by Raymon Travis Farmere. Mr. Farmere was an unsuccessful candidate in the mayoralty election held on October 20th, 2018, for the City of Nanaimo, Province of British Columbia. The results of that election determined that Leonard Krog (misnamed in the Application as “Lennard Krog”) was the successful candidate; Mr. Krog received 20,040 votes. The next successful candidate was Don Hubbard; he received 6,802 votes.

The third ranked candidate in terms of the results was Raymon Farmere; he received 365 votes. [ 2 ] As a result of those election tabulations, Sheila Gurrie, Chief Electoral Officer for the City of Nanaimo, certified and declared that Leonard Krog was elected, having received the highest number of valid votes for the office of Mayor of the City of Nanaimo. That document is before me as Exhibit Number 1. [ 3 ] As a consequence of those results, and based upon various concerns held by both Mr. Farmere, as well as those of his campaign manager, Melissa Nash, Mr.

Farmere has applied for a judicial recount pursuant to s. 148 of the Local Government Act for the Province of British Columbia. THE LEGISLATION [ 4 ]

Section 148 of the Local Government Act provides as follows: Application for judicial recount 148

(1) An application may be made in accordance with this

section for a judicial recount, to be undertaken by the Provincial Court, of some or all of the votes in an election.

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

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

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

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

c) that the final determination under

section 145 [determination of official election results] did not correctly calculate the total number of valid votes for a candidate.

(3) The time period during which an application may be made is limited to the time between the declaration of official election results under

section 146 and 9 days after the close of general voting.

(4) The application may be made only by (

a) an elector of the municipality or electoral area for which the election was held, (

b) a candidate in the election or a candidate representative of a candidate in the election, or (

c) the chief election officer.

(5) An application must be made by the chief election officer if, at the end of the determination of official election results under

section 145, a candidate cannot be declared elected because there is an equality of valid votes for 2 or more candidates.

(6) The document commencing an application must set out briefly the facts on which the application is based and must be supported by affidavit as to those facts.

(7) At the time an application is commenced, a time must be set for the recount that is adequate to allow the court to complete the recount within the time limit set by

section 149.

(8) The person making the application must notify affected persons (

a) by immediately notifying the chief election officer and the affected candidates in the election, if any, that a judicial recount will be conducted at the time set under subsection (7), and (

b) within 24 hours of filing the document commencing the application, by delivering to these persons copies of that document, the accompanying affidavit and a notice of the time for the recount. THE APPLICATION FOR A RECOUNT [ 5 ] Mr. Farmere filed his Application in the Nanaimo Court registry on October 29th, 2018. It is common ground that such day was the last possible date for the Application to be filed, that being nine days after the close of general voting, which had occurred on October 20th, 2018. [ 6 ] The filed Application of Mr. Farmere bears some mention.

The form of Application appears to be taken from an application used in the Small Claims division of the Provincial Court. There is nothing that I can see that prescribes the form of an application that must be used. Accordingly, the form of his Application is not being challenged, notwithstanding a lack of reference to

section 148 and specifically a lack of any explicit or general reference to subsection (2) or to any one or more of the three bases contained within that

subsection upon which a judicial recount must rely. [ 7 ] However, it is important to note that within the body of the front page of the filed Application document are referenced a series of lettered exhibits with attached documents, which all form part of the Application. For the purposes of these reasons, I will simply summarize what the exhibits purportedly indicate, based upon submission received from Mr. Farmere and Ms.

Nash at the hearing of the Application. [ 8 ] Exhibit A purports to be a screenshot of a large screen installed for public viewing at the local auditorium where the official vote counts from the various polls were being tabulated; the accompanying notation says that the “polling stations were not closed”, which I take that to be at the required time of 8 p.m. on October 20th, 2018, and with a further notation reference stating “votes too high”. [ 9 ] Exhibit B purports to be a photograph of an individual who is alleged to have removed candidate and election signs, but the actual wording states as follows: "Signs removed and guarded by 'Santa' fellow." [ 10 ] The Exhibit C attachment purports to be a copy of the official election results for Mayor in which there is a reference to one of the polling stations being McGirr, which I understand to be a local school; the reference on the face page of the Application is "McGirr # not reporting, but in sheet at presentation." On the exhibited document forming Exhibit C is a further hand written notation saying “advance poll lower than in

article Mc Girr reports many votes machines broken there?” [ 11 ] Exhibit D then contains a number of documents which are taken partly from the electronic and printed press and also some are apparently taken from the online news page for Nanaimo News Now , with the face page notation of "Eligible voters only, approximately 69,000, not 185,000." [ 12 ] Exhibit E again appears to be the copy of the General Election Official Declaration of Results for Mayor, with the results for the advance polls and the City of Nanaimo Service and Resource Centre results circled.

The continuation of Exhibit E again contains similar-type information taken from a local media source respecting the number of people who voted and the percentage of votes cast as a percentage of the total number of eligible voters, and there is also a reference to the final results for councillors, with a total number of 185,318 circled. [ 13 ] In Exhibits F and G there are similar documents for the election results certified for the office of Mayor, again with numbers circled.

On the Application face page appears a notation: “What happened to advanced votes ??” and “hundreds of votes missing.” [ 14 ] In submissions, Mr. Farmere and Ms. Nash, his campaign manager, say that for the judicial recount being sought, reliance is being placed on the bases for such a judicial recount found within provisions of s. 148(2)(

b) and (c). Subsection (

b) states as a bases when a ballot count does not accurately record the number of valid votes for a candidate, and subsection (

c) states that the final determination under s. 145 [being the determination of official election results] did not correctly calculate the total number of valid votes for a candidate. [ 15 ] What is required and what is apparently absent in addition to the filed Application is as follows: the absence of any affidavit which supports the facts upon which the Application is purportedly based.

No affidavit was prepared, sworn or submitted at the time of filing of the Application by either Raymon Farmere or Melissa Nash or by any other person who may be able to depose as to the various alleged facts which are purportedly set out in the Application exhibits. [ 16 ] I gather from the submissions that I have received both from Mr. Farmere and Ms.

Nash that much of what they have discerned to be the grounds for a judicial recount have been based on their own observations made at the time of their attendances at various polls throughout the City of Nanaimo on election day; there is also their speculation as to a particular individual, who they dubbed as “Santa”, and who they say is alleged to have been tearing down signs; I gather that they are also suggesting that there were certain technology issues that arose with respect to the calculation of votes at the McGirr polling station; as well they are suggesting that there is an inconsistency between reports forthcoming from the media, both apparently online as well as in printed form, as to the actual voting that occurred in comparison to the Declarations made by the Chief Election Officer. [ 17 ] While I have their submissions, there has been no filed certification in any form about any of the alleged facts as they appear in the filed Application.

THE TASK OF THE COURT [ 18 ] I must at this point make a determination of whether or not there has been compliance with the provisions of s. 148(6) of the Local Government Act . That is essential because in the absence of the Application being properly filed, along with the required supporting affidavit, then it is the position (among others) taken by both the City of Nanaimo, as represented by their Chief Election Officer, as well as the successful candidate, Leonard Krog, that the jurisdictional threshold for a judicial recount to be ordered by this court had not been satisfied.

ANALYSIS [ 19 ] I have looked carefully at the requirements of s.

Section 148 provides a statutory framework for initiating a judicial recount. There is no discretion given to the court with respect to any timeframes or timelines that must be adhered to with respect to a judicial recount. [ 20 ] Subsection (3) of s. 148 requires that the time period during which the Application may be made is limited to the time between the declaration of the official election results under s. 146, which in this case was October 24th, 2018, and nine days after the close of general voting, which occurred on October 20th, 2018.

Hence, the final date for filing of the Application and, in my view, the filing of any fact supporting documents including the required affidavit, expired on October the 29th, 2018.

[ 21 ] The absence of the filed supporting affidavit required pursuant to s. 148(6) of the Local Government Act , in my view, is fatal to the Application of Mr. Farmere to seek a judicial recount. CONCLUSION AND DECISION [ 22 ] Accordingly, in my view, his Application for a judicial recount must be dismissed. There will be an order accordingly. [ 23 ] That concludes my reasons. (REASONS CONCLUDED)