Still no trial decided for 2021 N.L. election challenge amid slow-moving lawsuit
Whymarrh Whitby alleges his right to vote was denied in the 2021 provincial election. He and former NDP leader Allison Coffin are still in court over it. (Patrick Butler/Radio-Canada)
A slow-paced lawsuit alleging problems with the province's 2021 "pandemic election" finally saw some movement Thursday morning, but the case is now at risk of being tossed altogether.
Lawyers for Elections N.L. and John Abbott argued it's too late for a three-year-old controverted election application to go to trial, given the next general election is just months away at most.
The lengthy lawsuit began when St. John's man Whymarrh Whitby alleged that issues during the last provincial election — including issues about special ballets — resulted in his right to vote being denied.
Three candidates — former provincial NDP leader Allison Coffin and PC candidates Jim Lester and Sheila Fitzgerald — have been calling for a new byelection in their respective ridings since.
Whitby, Coffin and Lester were all at Supreme Court in St. John's for Thursday's hearing.
Whitby's lawsuit against Elections N.L. and former chief electoral officer Bruce Chaulk is co-signed by Coffin, who lost her St. John's East-Quidi Vidi seat to current Liberal MHA John Abbott.
The pair is represented by Will Hiscock, who said Thursday that he is prepared to go to trial.
"We have the numbers to make this not a purely academic challenge, but a real and material challenge," Hiscock told Justice Garrett Handrigan.
From left, Elections N.L. lawyer Andrew Fitzgerald; John Samms, lawyer for John Abbott; and Will Hiscock, who is representing Whymarrh Whitby and Allison Coffin. (Patrick Butler/Radio-Canada)
Most of the morning hinged on one section of the House of Assembly Act, which Elections N.L. lawyer Andrew Fitzgerald interpreted as saying a byelection cannot occur within six months of a general election.
Hiscock, however, argued the act stated that there is simply no obligation to hold a byelection in that period, and said irregularities caused significant challenges during the previous provincial election.
Trial readiness
In his readiness argument, Hiscock said he is prepared for trial, with at least 60 individuals in the St. John's East-Quidi Vidi riding who allegedly ran into irregularities in the election that prevented them from voting.
That number is high enough to beat the magic number test in this case, which is a formula the Supreme Court uses to determine whether an election should be annulled.
John Samms, the lawyer for John Abbott, argued that he and his client had no role in delaying the lawsuit, and that the plaintiffs have not taken any chances to speed up the process — proving, he argued, they are not ready to go to trial.
Samms wants the matter to be "fully evaporated" by April 14 of this year — the presumed "drop dead" date for this matter.
"Barring another pandemic, we will never see another election like this again," he said, arguing that a trial would be too expensive, lengthy and unnecessary.
The lawsuit is not meant to replace one sitting member of the House of Assembly with another, Hiscock said, but rather to void the 2021 election altogether.
According to Handrigan, the lawsuit is at the eleventh hour.
"But we're not at the twelfth," Hiscock replied as those sitting in the courtroom laughed.
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