New Brunswick

Hearing into Saint John Harbour election result halted over alleged improprieties

A court hearing over alleged voting discrepancies in the riding of Saint John Harbour came to an abrupt halt Wednesday over allegations the lawyer representing Progressive Conservative candidate Barry Ogden failed to disclose he obtained privileged documents related to the case.

Elections NB alleges PC candidate's lawyer failed to disclose he had obtained privileged documents

PC candidate Barry Ogden, left, is attempting to have the Saint John Harbour election result thrown out after claiming voter irregularities could have played a part in his 10-vote defeat to Liberal MLA Gerry Lowe, right. (CBC)

A court hearing over alleged voting discrepancies in the riding of Saint John Harbour came to an abrupt halt Wednesday over allegations the lawyer representing Progressive Conservative candidate Barry Ogden failed to disclose he obtained privileged documents related to the case.

Elections New Brunswick lawyer Fred McElman alleges Kelly VanBuskirk came into possession of notes prepared for the province's legal team and "used" the information, which he contends violates the Law Society of New Brunswick's code of conduct.

McElman called for VanBuskirk and his firm, Lawson Creamer, to be removed from the case.

VanBuskirk argued the information should be made public in the interest of transparency and in fairness to Ogden and MLA Gerry Lowe, the Liberal candidate who won the riding by 10 votes in the Sept. 24 provincial election.

"This information appears to be important to the public interest," he told the Court of Queen's Bench.

Saint John Harbour was the closest race in the province and became central to the fight for power between the PCs and Liberals. Neither party won the 25 seats required for a majority in the 49-seat legislature.

A vote recount on Oct. 4 confirmed Ogden lost, but his legal team is now seeking to have the election result overturned.

VanBuskirk had alleged polling station officials in the hotly-contested riding violated the Elections Act by recording 40 voter identification numbers twice in voting logs.

The court was expected to hear testimony Wednesday from Patti Nason, a long-time municipal returning officer.

But Justice Hugh McLellan adjourned the hearing until Friday at 9 a.m. to give VanBuskirk time to respond to McElman's motion for him to be removed. 

VanBuskirk declined to comment outside the courthouse.

The lawyer representing Elections New Brunswick says Kelly VanBuskirk, pictured, should be removed from the case for alleged misconduct. (Brian Chisholm / CBC)

The document at issue "contains information to advise me," McElman told the court, noting the bottom of each page states "prepared for use by ENB solicitor."

Under the Law Society's code of conduct, when a lawyer comes into possession of "a document or thing that the lawyer has or ought to have reasonable grounds to believe belongs to or is intended for another person," he or she must cease reading the material, return it and purge any copies.

VanBuskirk "refused to tell me how he came into possession of this document" and declined, when first asked, to return it, said McElman.

The document was turned over to the province's legal team 10 minutes before the hearing was scheduled to begin, he said.

I know I didn't do [anything] wrong and I'm pretty sure nobody on my team did [anything] wrong.- Gerry Lowe, Saint John Harbour Liberal MLA

Lowe told reporters the dispute between the lawyers caught him by surprise.

"I got there a little bit early and the lawyer for [Elections NB], he was really mad and he was over arguing with the lawyer for the other side there so I didn't understand it, but I knew something was wrong," he said after the hearing.

"I'm not a lawyer, I'm a taxi driver, so I don't understand it all, right? But I knew he was upset."

Lowe said he's moving ahead and getting settled into his new office, but he is anxious for the matter to be resolved.

"I know I didn't do [anything] wrong and I'm pretty sure nobody on my team did [anything] wrong," he said.

"I just want it over with and I can go on with what I'm doing."

With files from Connell Smith

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