Still no trial decided for 2021 N.L. election challenge amid slow-moving lawsuit

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 St. John's East-Quidi Vidi MHA 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 Alison Coffin, the former N.L. NDP leader and the candidate who lost to Abbott, alleged that issues during the last provincial election — including about special ballets — resulted in her right to vote being denied. 

Three candidates — Coffin and PC candidates Jim Lester and Sheila Fitzgerald — have been calling for a new byelection in their respective districts ever since. 

Whymarrh Whitby, a voter who claims he was unable to vote in the last election and is also a plaintiff in the suit, was at Supreme Court in St. John's for Thursday's hearing, along with Coffin and Lester

Whitby and Coffin are represented by Will Hiscock and Lori Wareham, who said Thursday that they are 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.

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 be called 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 district 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 of Canada established 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 says he believes the matter will be "fully evaporated" by April 14 of this year — the presumed "drop dead" date for this matter, which is six months before the next fixed date for a general provincial election.

"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.

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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