City vote heads to court

By Dan Hilborn
Published Jan. 11, 2006


Team Burnaby city council candidate Barbara Spitz is going back to court this month in an attempt to win back the council seat she thought she won in the Nov. 19 civic election.

The application, which was filed in B.C. Supreme Court on Dec. 23, calls for the court to uphold the initial announced results of the election, which gave Spitz the eighth and final seat on city council by a three-vote margin over incumbent Sav Dhaliwal.

"We want the original judge's order set aside, and the official results that were talked about by (chief returning officer ) Debbie Comis would stand," Spitz told the Burnaby NOW on Monday. "We're asking that the recount be done according to Burnaby bylaws."

But the city's chief election officer said there is little likelihood that a second court action might be able to overturn the judicial recount of ballots that was held in late November.

"The Local Government Act says that when a judge makes their decision, it's final," Comis said. "So, as far as we're concerned, the results are as they were declared.

"It's certainly within the purview of the judge to do a recount manually, and section 140 of the act states that the results of a judge's decision are final - so there's not a lot of room to interpret that."

The latest court action, which has still not been heard by a judge, makes the November 2005 civic election the most contentious and litigious election held in Burnaby in recent memory.

Spitz, who confirmed she was acting on her own behalf but with the knowledge and support of her Team Burnaby colleagues, was initially declared the winner of the race on election night when a first machine-count of the ballots gave her a one-vote margin over Dhaliwal.

Two days later, a second machine count of the ballots increased Spitz's apparent margin of victory to three votes.

But Dhaliwal and his Burnaby Citizens' Association election team filed for a formal court-ordered review of the ballots.

Justice Margaret Rae allowed a total of 66 new ballots to be counted, causing the result to change a third time - this time giving Dhaliwal a three-vote margin ahead of Spitz, 13,403 to 13,400.

The 66 additional ballots were ruled admissible by the judge because they contained markings that indicated the intention of the voter, Comis said at the time.

Burnaby's machine-counted ballots are supposed to be marked by a solid line connecting two ends of an arrow next to a chosen candidate's name. On most of the 66 disputed ballots, the line was drawn incompletely or not written with black ink, making them unreadable to the machine, even though the markings are visible to a human eye.

Spitz said that she is not appealing the election count as much as she is protesting against the process used by the judge to overthrow the initial election result.

"I've won and lost elections before but this one was different," Spitz said. "I feel that I lost on human error, not on the ballots."

Spitz also noted the city's own election bylaw calls for the machine count of the vote to be the official result.

Dhaliwal, meanwhile, said he was surprised to hear that his council seat might be in jeopardy.

"I was taken aback by the news, obviously," said the two-term councillor.

"I'm disappointed. It doesn't make any sense to me why somebody would seek to disallow 66 votes.

"That's about all I can say at this point."

Dhaliwal noted that he has been working hard since he was declared the election winner and now serves as chair of the city's social issues committee and vice-chair of both the traffic and transportation and traffic safety committees.

Other Team Burnaby officials were unavailable to provide comment before Burnaby NOW deadlines.