



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Oh v. Langley (City),









2017 BCCA 43




Date: 20170123

Docket: CA43634

Between:

Serena Oh

Appellant

(Petitioner)

And

City of Langley
and Carolyn Mushata

Respondents

(Respondents)




Before:



The Honourable Madam Justice Newbury

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Willcock




On appeal from: an
order of the Supreme Court of British Columbia, dated
April 12, 2016 (
Oh v. Langley (City)
, 2016 BCSC 1357,
New Westminster Registry No. 178985)

Oral Reasons for Judgment




Appellant Appearing In Person:



S. Oh





Counsel for the Respondents:



F.V. Marzari





Place and Date of Hearing:



Vancouver, British
  Columbia

January 23, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

January 23, 2017








Summary:

The court below did not err in finding
the appellants petition, which effectively sought a recount of votes cast in a
municipal by-election, was out of time and that a case was not made out. Appeal
dismissed.



[1]

NEWBURY J.A.:
Ms. Oh, who is
unrepresented in this court, seeks to appeal an order of Madam Justice Brown
made April 12, 2016 which dismissed her petition, with costs to the
respondents, the City of Langley and Ms. Mushata, who is the Citys Chief
Election Officer.

[2]

Ms. Ohs petition contested the results of a municipal
by-election held on February 27, 2016 to fill a single vacant seat on Langleys
city council. Nine candidates ran for election in the by-election, including
Ms. Oh. The official election results were certified and declared by the Chief
Election Officer on March 2, 2016 in council chambers. The result was that
Mr. Nachal was elected with 740 votes, or just over 1/3 of
the vote.
Ms. Oh received 57 votes or 2.7% thereof.

[3]

The Chief Election Officer
submitted her report of the election results to the City on March 21, 2016. It
disclosed no fraud or irregularities.

[4]

On March 23, 2016, Ms. Oh filed her petition, in which
she sought relief under the
Local Government Act
,
R.S.B.C. 2015, c. 1, as follows:

1.

An Order that an election should be declared invalid because it was
not conducted in accordance with this Act or a regulation or bylaw under this
Act or a regulation or bylaw under this Act.

2.

An Order for Judicial Recount, 148(2)(b) that a ballot
account does not accurately record the number of valid votes for a candidate;
148(2)(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.

[5]

Under the headings Factual Basis and Legal Basis,
the petition stated:

Part 1: FACTUAL BASIS

1.

That a ballot account does not accurately record the number of valid
votes for a candidate;

2.

That the final determination under section 145 did not correctly
calculate the total number of valid votes for a candidate.

Part 2: LEGAL BASIS

1.

The Election Act Officials,
[sic]
s. 4-13 The Chief Electoral
Officer (CEO) applies the Election Act in a fair and neutral way. The CEO must
be impartial.

2.

Every vote must count, no matter who you vote for.

[6]

In their Response, the respondents pointed out that
insofar as a judicial recount was concerned, the petition was out of time
because of the limitations imposed by ss. 148 and 149(1) of the
Local Government
Act
.
They provide:

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.

. . . .

(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.

. . .

149 (1)
A judicial
recount must be conducted in accordance with this section and completed by the
end of the 13
th
day after the close of general voting.

[Emphasis added.]

[7]

As far as the prayer for a declaration that the
election was invalid,
s. 153 of the
Local Government
Act
provides:

153 (1) The right of an elected candidate to take office or
the validity of an election may not be challenged except by an application
under this section.

(2)       An
application may be made in accordance with this section to the Supreme Court
for a declaration regarding the right of a person to take office or the
validity of an election.

(3)       The time limit for making an application
is 30 days after the

declaration
of official election results
under section 146.

(4)       An
application may be made only by a candidate in the election, the chief election
officer or at least 4 electors of the municipality or electoral area for which
the election was held.

(5)
An application may be made only
on one or more of the following bases:

a.

that a candidate declared
elected was not qualified to hold office at the time he or she was elected or,
between the time of the election and the time for taking office, the candidate
has ceased to be qualified to hold office;

b.

that an election
should be declared invalid because it

was not conducted
in accordance with this Act or a

regulation or
bylaw under this Act
:

c.

that an election or the
election of a candidate should be declared invalid because section 161
[vote buying],
162
[intimidation]
or
163 (2) (a)
[voting when not
entitled]
was contravened.

(6)
As a
restriction on subsection (5) (b), an application may not be made on any basis
for which an application for judicial recount may be or may have been made.

(7)
At the time the petition commencing an
application is filed,
the court
registry must set a date for the court to hear the

application, which must be at least 10 days but no later than 21

days after the date the petition is filed
.

[Emphasis added.]

[8]

The City took the position that Ms. Oh was effectively seeking
a judicial recount  an argument clearly supported by the affidavit evidence
filed by Ms. Oh. She deposed that she had carried out various inspections on
March 24, March 29, March 31 and April 1, 2016 of ballots of people that I
randomly picked who voted for me. She deposed that their ballots had been
destroyed or were not counted and indeed she asserted that Over 95 percent or
over 1,500 to 2,000 ballots have been destroyed or ballots are not counted.
This statement contravenes the Chief Election Officers report and affidavit,
which states that every ballot was accounted for in the vote tallies. Ms.
Mushata suggests that Ms. Oh seems to be under the impression that every person
listed in the voting books attended to vote in the election  obviously  an
erroneous belief Ms. Oh continues to hold.

[9]

The chambers judge heard the
petition on April 12, 2016 and dismissed it on two bases. First, Ms. Oh was out
of time under the relevant provisions of the
Local Government Act

I
have quoted above
,

and second, her evidence was entirely deficient.
In the words of the chambers judge:

[5]         It
is difficult to understand where the information is coming from, how Ms. Oh is
reaching the conclusions which it appears she has reached by looking at some
sort of documentation. It is just not possible to determine what the basis of
the evidence is. It is simply hearsay, hard to know exactly what is being said
or what the source of the information is.

Accordingly, the judge ruled that the
evidence did not rise to the level necessary to make a challenge under s.
153(5)(b) of the [
Local Government Act
]

and
indeed that she had not met the preliminary burden of establishing a failure
of some kind in the election process.

[10]

In this court, Ms. Oh has argued that the chambers judge ignored the
evidence she had filed. She insisted that 123 people had registered and voted
for her but that their votes had not been counted. We have questioned Ms. Oh
today at some length as to how she can state categorically that the votes of
particular people were not counted. What we gleaned from her was that since she
had expected to receive 123 votes at least, some fraud must have occurred
because she received only 57. However, as Ms. Mushata deposes, the names of
voters in the voting books are crossed off when they attend at the voting
station. People who do not attend do not have their names crossed off. Further,
there is no means by which, after an election, one can identify
from the
record
who has voted for whom: it is, after all, a secret ballot. Although
Ms. Oh remains convinced that her inspections establish that some fraud
occurred, she is unable to offer anything further than her evidence of conversations
with people who, she says, voted for her. With respect, this evidence is
simply not probative of Ms. Ohs claim of electoral misfeasance.  I agree with
the judges finding that no evidence was adduced that provides support for that
claim.

[11]

Even if this were not the case, Ms. Oh has not shown that the chambers
judge erred in finding that her petition was aimed at obtaining a judicial
recount, or in ruling that her petition was out of time under s. 148(3) of the
Local
Government Act
.

[12]

It follows in my opinion that the appeal must be dismissed, with costs
to the respondents.

[13]

HARRIS J.A.
: I agree.

[14]

WILLCOCK J.A.
: I agree.

[15]

NEWBURY J.A.
: The appeal is dismissed.

[Counsel
requests that signature of appellant on the form of order be dispensed with.]

[16]

NEWBURY J.A.
: The appellants signature is dispensed with on this
order.

The
Honourable Madam Justice Newbury


