Fitzgerald, Re, (1989) 78 Nfld. & P.E.I.R. 215 (NFTD)

• Judge: Halley, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: September 22, 1989
• Jurisdiction: Newfoundland and Labrador
• Citations: (1989), 78 Nfld. & P.E.I.R. 215 (NFTD)

Fitzgerald, Re (1989), 78 Nfld. & P.E.I.R. 215 (NFTD);

    244 A.P.R. 215

MLB headnote and full text

In the matter of the Elections Act, R.S.N. 1970, Chapter 106

and

In the matter of the Provincial General Election held on April 20, 1989

and

In the matter of an Application of Roger Fitzgerald for a Judicial Recount in the Electoral District of Bonavista South

(1989 St. J. No. 1347)

Indexed As: Fitzgerald, Re

Newfoundland Supreme Court

Trial Division

Halley, J.

September 22, 1989.

Summary:

Following the 1989 provincial general election, the Progressive Conservative candidate for Bonavista South applied for a judicial recount. The Liberal candidate won by 20 votes. After the initial recount, the candidates were separated by 14 votes. Seventeen votes were set aside for determination of their validity. The disputed ballots either contained multiple marks or were marked in a way which might identify the voter.

The Newfoundland Supreme Court, Trial Division, held that 14 of the ballots were valid. The Liberal candidate retained the 20 vote majority.

Elections - Topic 3284

Voting and ballots - Ballots - Marking of - By voter - Validity of mark on ballot - Application for a judicial recount in Electoral District of Bonavista South - Liberal and Progressive Conservative candidates separated by 14 votes after recount - Seventeen ballots set aside as reserves pending determination of whether they were valid ballots - Some ballots with multiple marks for same candidate; others marked in fashion which could identify the voter - The Newfoundland Supreme Court, Trial Division, held that 14 ballots were valid - The court rejected three ballots because the voter might be identified.

Statutes Noticed:

Elections Act, R.S.N. 1970, c. 106, sect. 71(3) [para. 9]; sect. 76(2), sect. 76(2A) [para. 10]; sect. 76(2A)(b) [paras. 12, 13, 16].

Counsel:

John Snow, returning officer;

Kent Morris, for the applicant, Roger Fitzgerald;

Edward M. Roberts, for Aubrey Trent Gover.

This application was heard on May 18, 19 and 23, 1989, before Halley, J., of the Newfoundland Supreme Court, Trial Division, who filed the following judgment on September 22, 1989: