A judge has rejecting setting aside the election result last September in the provincial riding of Saint John Harbour.

Court of Queen's Bench Justice Hugh McLellan dismissed the case Friday morning, weeks after hearing final arguments by both sides.

Progressive Conservative candidate Barry Ogden had challenged his 10-vote loss to Liberal Gerry Lowe in the Sept. 24 election that left neither party with a majority in the legislature.

Ogden had asked the court to throw out the results and order a new election, alleging 71 instances of voting irregularities.


The case took months to hear as lawyers for both sides, along with Elections New Brunswick, presented their arguments.

In his 48-page ruling, McLellan wrote that after considering the limited evidence, it was his opinion Ogden had not met the burden to establish that 28 people voted when they were not entitled to.
In what he called the magic number test, the judge said he disallowed nine votes — eight by non-residents of Saint John Harbour and one by a person who had voted twice.

But McLellan said the magic number test was not a substitute for the careful consideration of whether a specific number of rejected votes would "produce a substantial effect upon the election."

As a result, McLellan said, it was his opinion that to overturn the election results the number of rejected votes would have to be a lot greater than the 10-vote margin of victory.

MLA wants it over

In a statement, Lowe said he was pleased with the decision and hoped "for the sake of the people of Saint John Harbour we can finally put this matter to rest."

The MLA said his priority since being sworn in after the election "has been to represent the interests of the people of my riding, and that will continue to be my priority moving forward. That's the job I was elected to do."

Ogden's lawyer, Kelly VanBuskirk, said he is still reviewing the decision and has not had a chance to discuss it with his client.

Ogden said he had seen Lowe and congratulated him.

Case revealed problems

Later in the day, Ogden said in a statement that he wasn't happy with the outcome, but he was happy "we were able to shine the light on very serious problems with our voting system."

After thanking people for their support, Ogden said he believes as a result of the court case "we will see improvements to our electoral system."

When asked if there would be an appeal, VanBuskirk said they'd have to think about.

"This remains a case that casts light on what every Saint John Harbour resident should be concerned about, but what every New Brunswicker and every Canadian should be concerned about."

Chief electoral officer Kim Poffenroth said Elections New Brunswick respects the ruling but would offer no other comment.

"We must wait until the applicant to this application determines if they will pursue their right of appeal."