Fight over Saint John Harbour election result may not be settled by deadline

It now appears unlikely a court challenge against the outcome of the provincial election in Saint John Harbour riding can be resolved before the six-month timeline set out in New Brunswick's Elections Act.

Court of Queen's Bench Justice Hugh McLellan has the discretion to go beyond that deadline, and tentatively scheduled a court hearing for April 5, with other dates possible the following week.

Last week lawyers for former Progressive Conservative candidate Barry Ogden filed a new affidavit bringing their court application to overturn the Sept. 24 results up to 918 pages, including amendments. 

Liberal Gerry Lowe was declared winner of that race, getting 10 more votes than Ogden.

More hearings to come

At a pre-hearing conference Monday, lawyers for Ogden, Lowe and Elections New Brunswick described what they hope to accomplish in the hearing, which is expected to resume in early April.

Another day of pre-hearing arguments is scheduled for March 26.

McLellan urged all three sides to work together to agree to certain facts in the case, so the application can be simplified.  

Lifting up the stack of documents in the PC application, he described it as "getting fairly thick."

McLellan said it is also important the public is able to understand all the facts of the case.

"We want make it plain," he said. "We want to make it clear." 

Liberals object to affidavit

Thomas O'Neil, representing Lowe, served notice to McLellan that he will object to the latest Ogden affidavit, which was filed last week by PC riding association president David Keirstead. 

The document alleges irregularities involving 78 of the votes cast in the riding. 

O'Neil told the court the document is "full of inaccurate commentary" and contains what he described as 32 examples of inadmissible opinion by Keirstead.

He said he will make a formal motion to have the affidavit struck from the application if it is not voluntarily removed by Ogden's lawyers.

The New Brunswick's Elections Act says a judge shall dispose of an application to set aside the results of an election within six months after the election writ has been returned "or as soon as practicable after that six-month period."

The writ was returned Oct. 5, 2018.