Paul Bickford
Northern News Services
Published Monday, November 5, 2007
HAY RIVER - Hay River now has no municipal council - except for a mayor - following a court ruling last week.
On Oct. 31, Supreme Court Justice John Vertes overturned the town's Oct. 16, 2006 municipal election, except for the mayoralty vote.
Prior to the Oct. 16, 2006, municipal election in Hay River, returning officer Selena Pukanich displayed the ballots during an interview with News/North. The judge ruled errors made by Pukanich were not malicious, but did bring returning officers level of training into question. - NNSL file photo |
"It's created an unprecedented situation," said Mayor John Pollard. "There's still a council - me - but there's no quorum."
The mayor alone does not have the power to pass bylaws or budgets, or approve land transactions.
Pollard is working with the Department of Municipal and Community Affairs (MACA) and the Department of Justice on how to proceed in light of the court ruling.
MACA Minister Michael McLeod said such a situation is not covered by existing municipal legislation.
"There's really no clear road map on how to proceed," he said.
While day-to-day operations of the town can continue, McLeod noted many decisions require the direction of both a mayor and council under NWT law.
In the past, whole councils have been removed either by the courts or the GNWT, he said. "In that case, it makes it fairly easy because a public administrator can be appointed."
McLeod said among the options being considered for Hay River are appointing a council until a new one can be elected, or establishing some kind of co-management agreement with the town. A public administrator can't be appointed while there is still a mayor.
"I would expect we would do something fairly quickly," McLeod said.
The minister said a byelection could also be fast tracked to a duration of five or six weeks from the normal eight weeks, after a returning officer is appointed.
"We're more than likely looking at mid-January," he said of a possible election date, adding it might be later because of the holiday season.
The court decision resulted from a civil action launched by Hay River resident Wayne Keefe against returning officer Selena Pukanich seeking the 2006 election be overturned because of numerous irregularities.
Keefe, who did not run in the election, said he is very satisfied with the ruling, calling it fair and just.
"This situation is a win for the people of Hay River," he said. "You can't put a price on the cost for democracy."
In his judgment, Vertes said any decisions made by the former members of council are still valid.
The now ex-councillors are Kevin Wallington, Vince McKay, Dean McMeekin, Peter Maher, Michael Maher, Ron Cook, Tom Hamilton and Ron Karp.
Pollard said it was very distressing to see councillors lose their seats when they did nothing wrong.
"They were collateral damage in errors and omissions committed by the returning officer," he said.
Pollard said there will be no interruption or reduction in services provided by the municipal government.
The mayor added the town will not appeal the ruling.
When contacted at her home in Alberta, Pukanich had no comment.
Vertes heard arguments during a four-day trial in September.
"There is no allegation of bad faith or malicious intent," Vertes wrote in his decision, adding many irregularities were done inadvertently and mistakenly.
The judge found the most serious irregularities were nomination papers being accepted without witnessed signatures of nominators; voting taking place at Pukanich's home; lack of a mobile voting station; the opening of a full ballot box to push down the ballots; and candidates' scrutineers counting ballots for council, while the returning officer and her deputy counted the votes for mayor.
"If I examine the irregularities individually or cumulatively, I would not be inclined to set aside the election save for one deviation from the statute: the counting of the council ballots by the scrutineers," Vertes wrote.
The judge said, while Pukanich could verify the votes for mayor because she did the count, she cannot verify the votes cast for the council candidates because she did not double-check that count or verify each council ballot by checking for the initials of the poll clerk.
Vertes noted no one claimed the vote count was wrong.
However, legislation directs the counting be done by designated officials and cannot be done by someone else.
"I come to this conclusion reluctantly, knowing the expense and effort that a new council election will require, not to mention the uncertainty," Vertes wrote, although adding the public must have confidence the election was conducted according to law.
Vertes ruled the Town of Hay River should pay Keefe's costs in bringing the matter to court, since he brought out a number of problems with the election process that would not have been identified otherwise.
Pukanich's legal costs were paid by the municipality.
Pollard estimates the legal fees and the expense of a byelection will cost the town between $100,000 and $125,000.
Now ex-councillor Ron Cook was surprised by the judge's ruling.
"I was disappointed," he said. "I was almost hurt."
Cook expected the judge to slap someone on the wrist and issue recommendations.
Ousted councillor, Ron Karp, supports Vertes' ruling.
"The judge had no choice in the matter," he said. "If he lets that go, he sets a very dangerous precedent for case law in this country."
Dean McMeekin, another ex-councillor, disagreed with the court ruling.
"It's kind of surreal," he said. "It surprised me, to tell you the truth."
McMeekin said the ousted councillors didn't do anything wrong and the judge recognized the irregularities didn't change the outcome of the election.
"So why overturn the election?" McMeekin said.
Vertes noted Pukanich had claimed the GNWT's chief municipal elections officer - Gail Cyr at the time - bears overall responsibility for the actions of a returning officer.
However, he noted Cyr was responsible for general direction and supervision over elections, but not direct supervision of each election officer.
"Having said that, I must say that the evidence revealed a lack of what I would consider to be adequate training for returning officers generally,' the judge wrote.
While noting that training of returning officers is a municipal responsibility, McLeod said the court decision will prompt the GNWT to look at the training it offers.
Residents of Hay River have varying opinions on council's removal.
"Things went wrong and there are consequences," said Peter Osted.
The election problems were caused by the returning officer's sloppiness, he added.
"Somewhere in there, her training program wasn't serious enough."
Laura Rose, another Hay River resident, doesn't think the absence of a full council will affect services to the town.
And, Rose hopes more people might run in the upcoming by-election and the town may get some fresh leadership.
"We really do need some change," she said.
