James Cummings APPLICANT And: The town of North River first RESPONDENT And: Sheila Hall second Respondent, 2021 NLSC 176

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Cummings v. North River (Town) , 2021 NLSC 176 Date : December 21, 2021 Docket : 202101G6401 Between: James Cummings APPLICANT And: The town of North River first RESPONDENT And: Sheila Hall second Respondent Before: Justice Garrett A. Handrigan Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 17, 2021

Summary: The Town of North River declared James Cummings elected to its Council when it counted the ballots at the end of voting on September 28, 2021. The Town reversed itself three days later after a recount, saying that Mr. Cummings polled fewer votes than his nearest rival, Brian Hurley, who replaced him on Council. Mr. Cummings filed a Petition in this Court to declare the election void, naming the Town and the Town Clerk as Respondents. The Respondents filed a preliminary objection to the Petition and asked that it be summarily dismissed. The Respondents claimed that the Petition does not comply with statutory requirements of the Municipal Elections Act .

The Court dismissed the preliminary objection and ordered the Respondents to pay costs. Overall, the Court was satisfied that the Petition alleged sufficient “irregularities and issues” with the election to declare it “unlawful” if the Applicant proves his allegations on a balance of probabilities. It also ordered the Respondents to file a written answer to the Petition and serve a copy of that answer upon the Petitioner, within five days from when this decision is filed. Appearances: Iain R.W. Hollett Appearing on behalf of the Applicant David R.

Power Appearing on behalf of the Respondents Authorities Cited: CASES CONSIDERED: Hammond v. Butler (1978), 9 Nfld. & P.E.I.R. 105, 50 A.P.R. 105 (Nfld. S.C.(T.D.)) STATUTES CONSIDERED: Municipal Elections Act , S.N.L. 2001, c. M-20.2 ; Local Government (Elections) Act , R.S.N.L. 1970, c. 217 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Handrigan, J. : INTRODUCTION [ 1 ] A municipal general election took place in the Town of North River, Newfoundland and Labrador, on September 28, 2021, one of many that happened throughout Newfoundland and Labrador on the same date. Eleven people contested the seven seats available on the Town Council and there was no separate election for mayor, who would be chosen from the seven successful candidates. [ 2 ] James Cummings was a candidate in the election, and the Town declared him elected after the official count on election night, although Mr.

Cummings polled the fewest votes of the seven councillors elected. He received 110 votes by the official count, three more than his nearest rival, Brian Hurley, who received 107. The Town recounted the votes on October 1, 2021, and concluded then that Mr. Hurley received 117 votes, 3 more than Mr. Cummings, so that Mr. Hurley replaced Mr. Cummings as the last elected councillor. [ 3 ] Mr. Cummings filed a Petition in this Court on November 10, 2021, under section 68 (1) of the Municipal Elections Act , S.N.L. 2001, c.

M-20.2 , asking to void the election and alleging that “certain irregularities” occurred during the election that made it unlawful. He named the Town of North River and Sheila Hall, who is the Town Clerk of North River and was also the Returning Officer for the election, as First and Second Respondents respectively. [ 4 ] The Respondents filed a preliminary objection to Mr. Cummings’ Petition under section 79 (1) of the Municipal Elections Act on December 7, 2021, claiming that Mr.

Cummings’ Petition complied with neither Section 68(1) nor 71(1) of the Municipal Elections Act , and they asked that the Court dismiss his Petition summarily. They also claimed that the election might be saved under

Section 95 of the Act . I heard the Respondents’ “Objection to Petition” on December 17, 2021, and reserved my decision until now. issues [ 5 ] Does James Cummings’ Petition comply with the Municipal Elections Act ? the law Legislation [ 6 ] Section 68(1) of the Municipal Elections Act reads, as is relevant here: 68(1) A petition complaining of

(

a) an unlawful return or election of a councillor; (

b) no return or a double return; or (

c) an unlawful act committed by a candidate returned, by which that candidate is alleged to have become disqualified to serve on the council, may be presented to the court by a candidate for the election or another person who had the right to vote at the election. 71(1) A petition need not be in a particular form but it shall complain (

a) of the unlawful return or unlawful election of a councillor [ 7 ] I note further

section 79 of the Municipal Elections Act , which is headed “Preliminary Objections.” It reads: 79(1) Within 5 days after the service of the petition, or a further time that the court allows, the respondent may file in the court a preliminary objection or grounds of insufficiency that he or she may have to urge against the petition or petitioners, or against a further proceeding, and shall in that case at the same time serve a copy of that objection upon the petitioner. 79(2) The court shall hear the parties on those objections and grounds and shall decide the matter in a

summary manner. 79(3) Within 5 days after the decision upon the preliminary objections, and upon the hearing of them, if disallowed, or on the expiration of the time for presenting the preliminary objections, if none has been presented, the respondent may file a written answer to the petition and shall serve a copy of that answer upon the petitioner. [ 8 ] Finally, I note

section 95 of the Act , to which counsel for the Respondents drew my attention during oral argument in support of the Respondents’ preliminary objection. It reads: An election may not be declared to be invalid (

a) for non-compliance with the provisions of this Act as to the taking of the poll or anything preliminary to the taking of the poll or as to the counting of the votes; (

b) because of a mistake in the use of the required forms; or (

c) because of a mistake or irregularity in the proceedings at or in relation to the election, where it appears to the court, by which the validity of the election or a proceeding in relation to it is to be determined, that the election was conducted in accordance with the principles laid down in this Act, and it does not appear that the non-compliance, mistake, or irregularity affected the result of the election. Case Law [ 9 ] In Hammond v. Butler (1978), 9 Nfld. & P.E.I.R. 105, 50 A.P.R. 105 (Nfld. S.C.(T.D.)), Goodridge, J. considered

section 101 of the Local Government (Elections) Act , R.S.N.L. 1970, c. 217. The Petitioner, Benedict Hammond, was an unsuccessful candidate in a municipal election that took place in Bell Island on November 8, 1977. He filed a petition asking that the election be voided for various reasons. The respondents, of whom there were nine, filed a preliminary objection asking the Court to declare that Mr. Hammond’s petition was insufficient. [ 10 ] They offered three reasons why the Court should grant the declaration, including

section 101 of the Local Government (Elections) Act , which is identical to

Section 95 of the Municipal Elections Act , which appears above. Goodridge, J. dismissed the preliminary objection, rejecting the respondents’ claim that the curative provisions of

section 101 saved the election: 18 … While I would like to have seen language alleging non-conformity to the philosophy of this

section incorporated into the petition, I would not consider failure to do so fatal.

Section 101 really relates to the proof of the complaints. Unless the petitioner can satisfy the Court in the matters therein set forth in its proof, then it will not succeed.

Section 101 is a matter of proof, not of pleading .

[Emphasis mine] [ 11 ] This is the law I will apply to the issue I stated above. I turn now to analyze that issue, starting with the background to it. Analysis Background [ 12 ] James Cummings filed a Petition with this Court under section 68(1) of the Municipal Elections Act asking to void the results of a municipal election that took place in the Town of North River on September 28, 2021. Mr. Cummings alleges that there were “certain irregularities [during the election] that compromised the validity of the result” (Paragraph 1 of his Petition).

He says that he was one of the seven councillors declared elected when the votes were counted on election night; that he received 110 votes; and that he out-polled his nearest rival, Brian Hurley, who received 107 votes, by three. [ 13 ] The Town recounted the ballots on October 1, 2021, by which Mr. Cummings gained an additional vote, increasing his total to 111 votes, but Mr. Hurley gained an additional 10 votes from the recount, thereby out-polling Mr. Cummings by six votes. Mr. Hurley was declared elected to the council after the recount, replacing Mr. Cummings.

Additionally, a judicial recount took place on October 15, 2021, by which each of Mr. Cummings and Mr. Hurley lost one vote, putting their totals at 110 and 116 respectively, so that Mr. Hurley remains as councillor. [ 14 ] In his Petition, Mr. Cummings does not allege any “intentional wrongdoing” by any person associated with the election. Mr. Cummings filed an affidavit in support of his Petition and affidavits from four other persons to the same effect. In his own affidavit, Mr.

Cummings stated categorically that “I do not allege intentional wrongdoing by any particular individual” (Paragraph 14 of his affidavit, dated November 6, 2021). Each of the other affidavits contains the same statement. [ 15 ] However, and as I noted earlier, while Mr.

Cummings does not allege any “intentional wrongdoing,” he does claim that there were “irregularities in the voting process,” and he offers four examples to support his claim, ranging from a person who was not a resident of the town but voted, to the ballot box not being “properly sealed before it left the Council Chambers on election night” (Paragraph 30 of the Petition). [ 16 ] Meanwhile, on December 7, 2021, the First and Second Respondents that Mr.

Cummings named in his Petition, being the Town of North River and Sheila Hall, Town Clerk and Returning Officer for the election, filed a preliminary objection to the Petition under

section 79 of the Municipal Elections Act . The Respondents call their preliminary objection an “Objection to Petition.” [ 17 ] They claim variously that the Petition does not “…allege any complaint in “…[s]ub-sections 1(1) [(a)] through [e] [of

Section 71 of the Municipal Elections Act ]” (Paragraph 2 of the Objection to Petition), so that it does not “…meet the statutory requirements” (Paragraph 2). They also claim further that the Petition does not “allege any particular wrongdoing by any individual” (Paragraph 3), nor does it, they say, “…contain any evidentiary foundation to support an allegation that any particular councillor has been unlawfully elected, and indeed does not contain an allegation to that effect” (Paragraph 4). [ 18 ] Mr. Cummings responded to the Objection to Petition on December 13, 2021.

He acknowledges that he does not allege any “intentional wrongdoing by any individual” but he notes that his request to void the election is based on “irregularities and issues noted… [in the Petition that] call into question the legitimacy of the election and therefore constitute an unlawful return or election of a councillor” (Paragraph 2(

d) of the Response to Objection). [ 19 ] Otherwise, Mr. Cummings acknowledges his obligation to provide evidence to support the “irregularities and issues” he has raised in his Petition and confirms that he has engaged a “Forensic Document Examiner” to review the ballots to determine if someone may have tampered with them between election night and the first recount. If he can adduce evidence of tampering during that time, Mr. Cummings believes that evidence will call into question “… the legitimacy of the entire election … and provide a basis to conclude that all the councillors were unlawfully elected” (Paragraph 2(f)(

v) of the Response). Discussion [ 20 ] Section 68(1) of the Municipal Elections Act , says that “[a] Petition complaining of “(

a) an unlawful return or election of a councillor …may be presented to the court by a candidate for the election… .” Section 71(1) of the Act says that “[a] petition need not be in a particular form, but it shall complain (

a) of the unlawful return or election of a councillor,” amongst the other things specified in sub-paragraphs (

b) to (

e) of Section 71(1), which are not relevant here. [ 21 ] The Town and Ms. Hall contend that Mr.

Cummings’ Petition does not meet the “statutory requirements” of Section 71(1), that it does not “allege any particular wrongdoing by any individual” and that it does not “… contain any evidentiary foundation to support an allegation that any particular councillor has been unlawfully elected, and indeed does not contain an allegation to that effect.” The Respondents claim that these are serious deficiencies in the Petition, and they ask that I dismiss it “summarily.” I disagree with the Respondents for these reasons. [ 22 ] In Hammond v.

Butler , Goodridge J. dealt with similar complaints by the respondents who filed a preliminary objection to a Petition to void an election.

In that case, the applicant offered six grounds for voiding the election, including: no separate list of electors existed for each polling division, so that a voter could vote more than once; the returning officer failed to seal the ballot boxes after the election and they remained unsealed up to a recount; notice of a list of electors was not properly advertised; no reviser was appointed to revise the list of electors; a voter who “spoiled” his ballot was refused a replacement ballot; and a “void” ballot was included in the recount. [ 23 ] As in this case, the respondents filed a preliminary objection asking the Court to dismiss the Petition, for that: the Petitioner did not properly identify the respondents in his Petition; the Petitioner did not provide security for costs, as required by the legislation; and “…it does not appear in the petition that the election was not conducted in accordance with the principles laid down in the Act nor that

any non-compliance, mistake or irregularity in connection therewith affected the result of the election” (Paragraph 3 of Hammond v. Butler ). Goodridge, J. noted

Section 101 of the Local Government (Elections) Act (which is identical to

section 95 of the Municipal Elections Act ) but declined to apply

section 101 to save the election. [ 24 ] It is true in this case that Mr. Cummings does not claim that any persons intentionally did wrong in how they managed the municipal election in North River on September 28, 2021, or even in the days after the election, including up to the first recount. However, Mr. Cummings does claim there were “irregularities in the voting process” and he specifies several of them. [ 25 ] Counsel for Mr. Cummings acknowledges that several of the grounds Mr. Cummings put forth in his Petition may not be sufficient to void the election.

However, he says that if the ballots were tampered with between the official count on election night and the recount three days later, that goes to the heart of the process and, if proved, could warrant voiding the election. He says Mr. Cummings exercised restraint in wording the Petition, because, while he believes there is the possibility of tampering, he is uncertain if there was, just now. [ 26 ] Counsel agrees that Mr. Cummings does not offer any “evidence” of wrongdoing in his Petition but says that it is not deficient for that reason. He notes that Mr.

Cummings has engaged a Forensic Document Examiner to review the ballots to see if they may have been tampered with between the official count on election night and the first recount three days later. He also says Mr. Cummings will retain the services of a statistician to offer an opinion on the “statistical probability” that the “… returning officer [in the official count on election night] failed to read a vote for Brian Hurley [Mr. Cummings’ nearest rival] on 10 occasions on [the] 312 ballots [that were cast in the election]” (Paragraphs 21-22 of the Petition). [ 27 ] Mr.

Cummings’ counsel noted that he asked for the ballots before Mr. Cummings presented his Petition so they could have them analyzed for tampering, but the Town refused his request, and that Mr. Cummings was loath to say who or when the ballots may have been tampered with in the absence of such evidence. However, they have now received the ballots and submitted them to the analyst for scrutiny and will submit evidence of tampering if it appears. [ 28 ] As well, just as in Hammond v. Butler ,

Section 95 of the Municipal Elections Act does not help the Respondents. Let me respond to the Respondents here, for invoking

Section 95 by simply paraphrasing what Goodridge, J. said to the respondents in Hammond v. Butler : Sections 68 , 71 , and 95 of the Municipal Elections Act are more properly “matters of proof, not of pleading,” and even if it is the latter, Mr. Cummings has placed himself comfortably within the parameters of those sections with the claims he makes about “irregularities and issues” in how the election was conducted. [ 29 ] In effect, Mr.

Cummings’ allegation of “irregularities in the voting process.” if supported by evidence, whether forensic, statistical, or otherwise, meets the burden on him under sections 68(1) and 71(1) and 95 of the Municipal Elections Act to complain in his Petition of the “unlawful return or election of a councillor.” If Mr. Cummings can prove his claims on a balance of probabilities the election will have been an “unlawful” one, in that it will not have complied with the Act , and it may be voided as he requests under section 81(1) (

c) of the Municipal Elections Act , although the

section offers other options. [ 30 ] I note, as it reads: 81(1) At the conclusion of the trial the judge shall determine (

a) whether the councillor whose election or return is complained of was returned or elected; (

b) whether some other person should be returned or elected; or (

c) whether the election is void. [ 31 ] I dismiss the “Objection to Petition” in this case. Both parties sought their costs. In the circumstances, I order the Respondents to pay Mr. Cummings’ costs to be taxed by the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D, Rule 55 , Column 3 of the Scale of Costs. As well, I order the Respondents to file a written answer to Mr. Cummings’ Petition and serve a copy of that answer upon him, within five days from when this decision is filed, as required by Section 79(3) of the Municipal Elections Act .

Summary and Disposition [ 32 ] The Town of North River declared James Cummings elected to its Council when it counted the ballots at the end of voting on September 28, 2021. The Town reversed itself three days later after a recount, saying that Mr. Cummings polled fewer votes than his nearest rival, Brian Hurley, who replaced him on Council. Mr. Cummings filed a Petition in this Court to declare the election void, naming the Town and the Town Clerk as Respondents. The Respondents filed a preliminary objection to the Petition and asked that it be summarily dismissed.

The Respondents claimed that the Petition does not comply with statutory requirements of the Municipal Elections Act . [ 33 ] The Court dismissed the preliminary objection and ordered the Respondents to pay costs. Overall, the Court was satisfied that the Petition alleged sufficient “irregularities and issues” with the election to declare it “unlawful” if the Applicant proves his allegations on a balance of probabilities. It also ordered the Respondents to file a written answer to the Petition and serve a copy of that answer upon the Petitioner, within five days from when this decision is filed.

Order [ 34 ] In the result, I order that: 1. The Respondents’ “Objection to Petition” is dismissed.

2. The Respondents pay the Petitioner’s costs to be taxed by the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D, Rule 55 , Column 3 of the Scale of Costs. 3. The Respondents file a written answer to the Petition and serve a copy of that answer upon James Cummings, within five days from when this decision is filed. _____________________________ Garrett A Handrigan Justice