Citation: Friesen v. Hammell

Date:

20000803

2000 BCSC 1185

Docket:

A962818

Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:

LEONARD FRIESEN, HOLLY KUZENKO, MILDRED UMBARGER

PETITIONERS

AND:

SUE HAMMELL, GRAEME BOWBRICK, ED CONROY

RESPONDENTS

REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE HUMPHRIES

 

Counsel for the Petitioners

D. Lunny
J. Dawson

Counsel for Sue Hammell
and Graeme Bowbrick

Counsel for Ed Conroy


Counsel for the Chief Electoral Officer

I.D. Aikenhead, Q.C.
K. Lotfali

J.L. Finlay
M.D. Pollard

J. Waddell, Q.C.

Date and Place of Trial:

April 10, 11, 12, 13, 17, 18,
19, 20, 25, 26, 27, 28, May 30,
June 26, 27,28, 29, 30, July 4,
5, 2000

Vancouver, B.C.

TABLE OF CONTENTS

Overview

3

Procedure

5

Standard of Proof

6

The Petitioner's Evidence

8

Budget Figures

11

The Impugned Representations

Who Made the Statements?
Timing
Reliance on the representations

13

13
15
17

Discussion

Budget 95
Revenue Optimism
Were "fraudulent means" used to obtain votes?
Budget 96
State of Economy
Alternate Revenue Forecast
Alternate Revenue Sources
The Final Figures
Timing of the Election
Were fraudulent means used?

19

19
21
30
33
35
36
38
42
43
45

Conclusion

47

The Statute

49

The Petition

51

OVERVIEW

[1] On May 28, 1996, the New Democratic Party ("NDP") was re-elected as the governing party in British Columbia. The Petitioners, Mr. Friesen, Ms. Kuzenko, and Ms. Umbarger say they were induced to vote in the election of May 1996 for the NDP candidates in their respective ridings by fraudulent means, contrary to section 256 of the Election Act (the relevant sections are annexed as Appendix 1). They wish to have the elections in each of their ridings declared invalid and the relevant offices vacated.

[2] At the time of the election, Mr. Friesen lived in the riding of Surrey-Green Timbers and voted for Sue Hammell. Ms. Kuzenko lived in the riding of New Westminster and voted for Graeme Bowbrick. Ms. Umbarger lived in the riding of Rossland-Trail and voted for Ed Conroy.

[3] The Petitioners do not allege any wrongdoing by the Respondents themselves. Ms. Kuzenko agreed that Mr. Bowbrick was an honourable person, and Ms. Umbarger agreed that Mr. Conroy was a person of integrity. Mr. Friesen did not hear or meet Ms. Hammell during the election campaign, but did not testify to being misled in any way by Ms. Hammell herself.

[4] The basis of the Petitioners' claim is that during the election campaign, statements were made by Mr. Clark, the Premier, and possibly Ms. Cull, the Finance Minister, to the effect that the NDP had a balanced budget for the 1995-96 year and expected a further balanced budget in 1996-97. There is a third representation alleged - that the government could afford, as a result of their fiscal prudence, a capital development program in the amount of $250 million to improve the province's infrastructure, but this was not covered in evidence or argument and I will not deal with it further.

[5] According to the Court of Appeal's decision on the earlier motion in this case (Friesen v. Hammell (1999), 57 B.C.L.R. (3d) 276), the purpose of section 256 of the Election Act is to enhance the integrity of the electoral process by holding political candidates and parties to a standard of non-fraudulent dealing with the public. A vote obtained by fraudulent means is one obtained by "misrepresentations of material fact which were intended to, and did, lead voters to vote for a candidate or party for whom the voter would not otherwise have voted, and which were made by or on behalf of a candidate or political party knowing they were false, or without regard to their truth or falsity." The term "fraudulent means" as used in s. 256 would not include "statements of intention or belief, and statements which any reasonable person would attribute to mere puffery."

[6] If I were to find a breach of section 256 of the Act, before deciding whether to set aside any of the elections, in any of the ridings, I must consider, pursuant to section 151(3), whether the relevant candidate contravened the section (it is conceded here that each one did not), and whether the contravention materially affected the result of the election.

[7] It is important to note that this case is narrowly defined by the petition and must be decided upon the evidence presented in court. It is not a general inquiry into the NDP, nor is it an evaluation of the reports and speculations about the case disseminated through the media during the past four years.

PROCEDURE

[8] The matter of who may sit in the legislature is historically handled by the legislature itself. Here, the legislature has delegated specific powers to the Supreme Court. There is no procedure set out in the Election Act governing a hearing with respect to a controverted election. The Act simply provides that an application may be made to the Supreme Court for certain declarations, and that the evidence must be given orally by witnesses rather than by affidavit. My function was to sit as an election court with specified powers rather than as a court with inherent jurisdiction.

[9] The early days of this hearing were consumed by motions regarding procedure. I decided a power to compel witnesses was necessary to properly determine the matter and issued various subpoenas upon application by counsel. I made a number of other rulings and the hearing proceeded, thanks to the efforts of all counsel, in a fairly orderly fashion.

[10] I am invited by the Chief Electoral Officer to set out my views on the procedural lacuna in the legislation, but this is a matter best left to the legislature.

STANDARD OF PROOF

[11] Counsel for the Respondents argue that the standard of proof in this case should be "beyond a reasonable doubt." They say this is a case of fraud, albeit not criminal fraud, with serious consequences to their clients. They cite a number of cases in favour of their position: The Warrington Case (1869), 1 O'M. & H. 42; Ammeter v. Perrier, [1999] 10 W.W.R. 725 (Man Q.B.), aff'd [2000] M.J. No. 71 (Man. C.A.); Rex Ex Rel. Van Horne v. Grant (1930), 37 O.W.N. 434, and many others including R v.Rowe, ex parte Mainwaring and others, [1992] 4 All E.R. 821 at p. 829, referred to and relied on by our Court of Appeal in the earlier ruling in this case.

[12] The Petitioners say I am bound by Bonneville v. Frazier (7 March 2000), Prince George 09361, [2000] B.C.J. No. 480 (QL), 2000 (B.C.S.C.) 416), in which Mr. Justice Parrett, dealing with a petition to set aside a municipal election in McBride, B.C., based upon an allegation of "fraudulent means," said:

I find on a balance of probabilities and on the whole of the evidence that the document was intended to and did lead some voters to vote for a candidate they would not otherwise have voted for.

[13] No argument was addressed to Mr. Justice Parrett on the issue of the standard of proof. In view of the unique facts before him, it is clear that the application of a higher standard of proof would not have caused the result to change in any event. In other words, the issue was not of significance in Bonneville.

[14] Extensive argument has been addressed to me on this point. The case before me concerns the integrity of a provincial election, not a municipal election governed by the Municipal Act. Allegations of fraudulent conduct are made against the then Premier and the Minister of Finance going to the very root of their fitness to hold public office. The consequences to the Respondents are that they may lose their jobs and to the voters in the three ridings that their expressed choice at the polls may be set aside. This is not a task to be undertaken on an evaluation of probabilities. Having considered all the cases in the context of the legislation and the issues before me, I am of the view that the standard of proof must be "beyond a reasonable doubt." However, I should note that the conclusions I have reached would not have been different even if the lesser standard of proof were used.

THE PETITIONERS' EVIDENCE

[15] Mr. Friesen says he was induced to vote for the NDP party candidate because of that party's statements of fiscal responsibility. He has no political affiliations and did not know who to vote for in the upcoming election, so he looked at the available information before making a decision. He read The Province, watched BCTV and CBC news, and listened to the radio. He recalls receiving campaign literature which said the budget was balanced, taxes were down, jobs were up. He saw Glen Clark "in advertisements discussing how he had balanced the budget and a full year ahead of schedule and how it was projected to be balanced in the coming year." He also remembered reading about and seeing some news coverage of Elizabeth Cull's tabling of the budget in which she said the same things. He listened to the leaders' debate. If not for the NDP's statements about the balanced budget, he testified he would probably have voted Liberal. He said he learned later that the budget might not be balanced after all and felt his vote had been stolen from him.

[16] Ms. Umbarger has no political affiliations and had no leaning towards any particular party for the 1996 election. She planned to read all the news coverage and decide who would be best for British Columbia. She watched TV and read the Trail Times. She read The Province and Vancouver Sun newspapers as well as their websites. She also read the government website. On the day the election was called, she heard Glen Clark say the NDP had balanced the budget. She saw the "leadership debate" during the election campaign. She looked seriously at the balanced budget the NDP said they brought in for 1995-96. The NDP said they would bring in another balanced budget in 1996-97. This impressed her and she voted for Ed Conroy as a result. If the NDP had not said they had cleaned up the province's finances, she would have voted Reform, or possibly Liberal. When she later heard the budget would not be balanced, she felt cheated.

[17] Ms. Kuzenko has no political affiliations and also sought to inform herself for the 1996 election. She read the newspapers and watched the "leadership debates that went on before the election," which I take to be the leaders' debate, and not the campaign for the leadership of the NDP which had taken place earlier. She also received campaign literature from Mr. Bowbrick's office. Although other parties said they were going to work on a balanced budget, the NDP said they had already done it. Without that claim she would have voted for another party. When she learned that the budget was not balanced, she felt betrayed.

[18] All three Petitioners answered an advertisement in the paper for an organization called "HELP BC." They agreed to let their names stand as Petitioners. The petition was originally framed as a class action in which a declaration was sought against the NDP generally and against each elected NDP member of the legislative assembly. Through various pre-hearing rulings, the petition was reduced to its present scope - three Petitioners seeking to oust their respective MLA's on the basis that certain false statements were made on behalf of the NDP which caused the Petitioners to vote for the NDP candidate in their riding. The relevant paragraphs of the petition are annexed as Appendix 2.

BUDGET FIGURES

[19] I now turn to a brief overview of the budget process. Each budget for the upcoming fiscal year, when tabled, contains a revised forecast for the previous fiscal year. Despite being reported on at the end of the fiscal year, the previous year's budget is still only a forecast because it is prepared at a time when only ten months of actual figures are available. As well, the books do not close and the final figures are not known until the public accounts are published in September, several months after the end of the fiscal year. For example, the 1995-96 budget figures were not finalized until September of 1996.

[20] When the 1995-96 budget ("Budget 95") had been tabled in April of 1995, it had forecast a surplus of $114 million. By the time the 1996-97 budget ("Budget 96") was tabled in April of 1996, the revised forecast for 1995-96 predicted a reduced surplus of $16 million. When the public accounts finally closed in September of 1996, the final figure was a deficit of $369 million. As for the 1996-97 budget, when it was tabled in April of 1996, a surplus of $87 million was predicted. When the 1997-98 ("Budget 97") budget was tabled in April of 1997, the revised forecast for the 1996-97 budget was a deficit of $395 million. By the time of the public accounts in September of 1997, the deficit had reduced to $353 million.

[21] Before either set of public accounts was published, however, the Petitioners had commenced this action in August of 1996. Although there was little if any evidence led as to what happened in the meantime, it appears that the Petitioners learned from various sources, I presume through the media, that Budget 95 was not balanced, or more accurately, was not expected to be balanced by the time the public accounts closed in September 1996. Excerpts from Hansard dated July of 1996 were filed which show dispute and debate in the legislature surrounding the budget arising from an announcement by Mr. Petter, then Minister of Finance, that the budget for 1995-96 might well show a deficit rather than a surplus because forest revenues would likely not be as high as originally predicted.

[22] What the Petitioners heard, if anything, about the 1996-97 budget was not clear. Only Ms. Umbarger specifically mentioned that she heard Mr. Petter say that the 1996-97 budget would not be balanced either, although she did not say when she heard this. There is no other evidence before the court on this point respecting Budget 96, other than the final figures for 1996-97 as set out above.

THE IMPUGNED REPRESENTATIONS

[23] The Respondents raised several arguments based on alleged deficiencies in the pleadings: they claim it is not clear who made the relevant statements, when they were made, what the statements were, and who is alleged to have heard them. These issues were further complicated by the position taken by counsel for the Petitioners - they argue that, despite the pre-trial motions which severely restricted the scope of the petition, this case is still about any voter in each of the three ridings who heard any representation by anyone on behalf of the NDP at any time in early 1996 until election day.

Who Made the Statements?

[24] It is true that the pleadings are not examples of clear plain drafting, and they were not amended after the scope of the petition changed substantially. The petition contains an allegation that Mr. Clark and the individual Respondents made certain statements as agents of the NDP. As well, the Petitioners allege in the petition that the makers of the statements knew the statements were false at the time they were made, and that they concealed information needed to ascertain the veracity of the statements. Despite the allegations in the petition, it was conceded at the outset of the hearing before me that the Respondents Hammell, Bowbrick and Conroy did not make any statements relevant to the issues in the petition.

[25] Although a subpoena was issued at the request of the Petitioners for the person in charge of all NDP campaign promotional material, he was not called as a witness. There was no evidence adduced as to any statements respecting a balanced budget made by the NDP party through its literature or advertisements. The only campaign literature entered as an exhibit was put in by counsel for Ms. Hammell and Mr. Bowbrick. This was a widely distributed pamphlet which does not refer to a balanced budget. None of the television advertisements which were put into evidence mention a balanced budget.

[26] There is no evidence to show that either Ms. Cull or Mr. Clark were agents of the Respondents, nor does the petition, as I read it, allege that they were. The Respondents exercised no control over Ms. Cull or Mr. Clark and cannot be said to be in the position of a principal and thus responsible for anything Ms. Cull or Mr. Clark said as individuals. However, the petition says that "the NDP, through its leader Clark ... misrepresented a number of material facts in order to induce potential voters, including the Petitioners, to vote for candidates endorsed by the NDP." Mr. Clark testified that, upon taking the role of leader of the party and Premier, he became the chief spokesman for the government and for the NDP. It is necessary, therefore, to examine the statements made by Mr. Clark on behalf of the NDP.

Timing

[27] The petition is based upon statements made "during the election campaign." The Respondents argue that they are required to deal only with statements made during "the period between when the writ for the election is issued and the date set for the return of that writ", or "the period between when the election is called and the close of general voting for the election" which are the Election Act definitions of "election period" and "campaign period" respectively. In this case, that would be April 30, 1996 to May 28, 1996.

[28] Mr. Clark made various speeches about the budget during his leadership campaign and in the period prior to the election being called. In March of 1996, he and Ms. Cull held a press conference at which he stated that they were on track for a balanced budget and expected to bring in a second balanced budget. As well, in April of 1996, the same message was contained in an infomercial. Mr. Clark agreed he had probably said the same things during the campaign period in a television appearance on May 6, during the Leaders Debate on May 16, and during mini-debates on May 2 and 8.

[29] As for Ms. Cull, there was no evidence adduced of statements made by her during the election campaign respecting a balanced budget. Any statements made by her were made in her budget speech, and not during the election campaign. However, the budget speech was delivered the day the election was called.

[30] Notwithstanding the arguments addressed to the timing of the representations or who was an agent of whom, I cannot see that much turns on it, except to say that the Respondents were at some disadvantage to know exactly what statements they were required to deal with. The impugned representations about the budget were repeated during the election campaign by Mr. Clark, who admitted he spoke on behalf of the NDP.

[31] In the leadership debate on May 16, 1996, to which all three Petitioners listened, Mr. Clark said:

I brought in a budget which takes action, which cuts your taxes, which cuts small business taxes, which brings the rate of debt down, the overall debt of the province, and which tries to deal with your priorities and your concerns in an affordable way with a balanced budget. You know we took the province from a huge deficit when we took office now to the surplus budget and I think the real challenge when we move forward is that it is still continuing to come down.

[32] This statement obviously refers to Budget 95 as being a surplus budget, and also refers to the budget brought in by Mr. Clark for 1996-97 as balanced. Ms. Cull, in her budget speech made the day the election was called, had characterized Budget 96 as "the second consecutive surplus budget." I accept that there was a representation made by Mr. Clark during the election campaign that the 1995-96 and 1996-97 budgets were balanced or surplus.

[33] There were several other comments in the same vein attributed to Mr. Clark to which objection was taken on the basis that they had not been particularized or otherwise provided to the Respondents. The Petitioners argued strenuously that everything had been provided. Apparently much of the material was contained in many hours of videotape which was produced during the hearing and which counsel for the Respondents say they did not have time to listen to. As the statement above is sufficient to allow consideration of the issues, I need not address the issue of timing and adequacy of disclosure.

Reliance on the representations

[34] The Respondents argue that, by the terms of the petition, they are required to deal only with representations that were heard by the Petitioners themselves during the election campaign. Despite the potential to bring a petition based upon the reaction of voters other than the Petitioners (as was done in Bonneville v. Frazier, referred to earlier), this petition in its present form concerns itself with the three Petitioners only. Although paragraph 46 refers to "potential voters, including the Petitioners", this wording remains from the time when the Petitioners hoped the petition would be a class action. That hope did not materialize. I will address myself only to the evidence of the Petitioners as I cannot speculate upon what other voters might have heard and done.

[35] As vague as the Petitioners' evidence is as to what they heard and when, both Ms. Umbarger and Mr. Friesen said they heard Mr. Clark say Budget 95 was balanced and the next one was expected to be balanced. Ms. Kuzenko said "the NDP" said they had a balanced budget and were expecting to balance the budget in the upcoming year. All three Petitioners said they listened to the leadership debate. Therefore, I proceed on the basis that each Petitioner heard Mr. Clark say, during the election campaign, that the NDP had balanced the budget and expected the upcoming budget to be balanced. Each Petitioner testified that they voted for the NDP candidate in their riding on the strength of that, and would not have voted for them otherwise.

DISCUSSION

[36] The Petitioners argue that the entire process by which the figures for both the revised 1995-96 forecast and the 1996-97 budget were arrived at should be scrutinized together. They contend that the NDP had put itself into the position of living up to an unrealistic Debt Management Plan in the face of a downturn in the economy. As a result, Mr. Clark and Ms. Cull involved themselves in a fraudulent process of orchestrating the figures for both the 1995-96 revised forecast and the 1996-97 budget, thus creating a knowingly false and misleading impression of fiscal prudence designed to get votes. Notwithstanding this general theory, there are particular instances of alleged wrongdoing which are specific to the individual budgets, so for the sake of clarity and organization I will consider them separately.

Budget 95

[37] In respect of the revised forecast for 1995-96, the Petitioners submit that Ms. Cull and Mr. Clark, upon realizing that the surplus that had been predicted in March of 1995 was not going to materialize, picked some numbers which might have a veneer of credibility and worked the budget assumptions back to conform with them. In doing so, they ignored the professional advice of Treasury Board Staff and forced the staff to come up with unrealistic options. The Staff were so reluctant to do this, according to the Petitioners, that they insisted Ms. Cull sign off on the options statement herself, an unprecedented move. The unhappy reaction of some of Treasury Board staff to Ms. Cull's decisions was clearly evident through the testimony of Mr. Foster, chief of fiscal forecasting for the Treasury Board.

[38] When all the evidence had been heard, there were some difficulties with this theory. First, the evidence demonstrated that Mr. Clark had little if any knowledge of the 1995-96 budget. Ms. Eaton, Secretary to Treasury Board, said she believed it might have been mentioned in passing at a meeting she had with him in December of 1995 when the possibility of his becoming leader of the party arose, but that the entire focus of the meeting was on Budget 96. Ms. Cull said Budget 95 was never discussed with Mr. Clark.

[39] Mr. Clark, who had assumed leadership of the NDP party in February of 1996 when Mr. Harcourt stepped down, said he knew nothing about the 1995-96 budget other than what he was told by Ms. Cull, which is that it was balanced. Aside from Ms. Eaton's belief that there was a passing reference to that budget in the December 1995 meeting, there was no evidence to the contrary.

[40] The responsibility for the revised forecast for Budget 95, then, rests with Ms. Cull and it was clear from her testimony that she accepted the entire responsibility for both budgets. Despite the alleged misrepresentations not having been made by Ms. Cull, she was the source of Mr. Clark's information. Therefore an examination of her evidence is necessary. Did Ms. Cull, on her own initiative, contrive a revised forecast for Budget 95 in order to trick the voters of British Columbia, by fraudulent means, into voting for the NDP?

Revenue Optimism

[41] The essence of the Petitioners' case respecting the 1995-96 revised forecast is a document entitled "Ministry of Finance and Corporate Relations Briefing Note" dated March 25, 1996. By March of 1996, Ms. Cull was in the final stages of preparing the 1996-97 Budget to be presented to the Legislature. This budget would include the revised forecast for the 1995-96 fiscal year for which a surplus of $114 million had been predicted the previous March.

[42] Ms. Cull testified that a budget is a forecast only and is made up of three elements - the fiscal target which is set first, and then the revenues and expenditures which are managed throughout the year to enable the fiscal target to be reached. She said there are always two budgets going on at any one time. The first is the budget for the current fiscal year which the Minister of Finance actively manages throughout the year, and the second is the budget for the upcoming year which is being prepared for throughout the year.

[43] Mr. Harcourt had promised to balance the budget over the business cycle which Ms. Cull interpreted to be by 1996. The deficit came down faster than she had foreseen so she announced in the budget speech in March of 1995 that the budget would be balanced in 1995, and there would be a surplus of $114 million.

[44] Throughout 1995 she continued to operate on the assumption that the budget would be balanced and that she would manage revenues and expenditures to ensure that the fiscal target would be reached, despite the unanticipated loss shortly after the budget was tabled of $250 million in downstream benefits from the Columbia River Treaty. Ms. Eaton, who, as Secretary, reported directly to Ms. Cull, said Ms. Cull was open, friendly and approachable and often met directly with the staff for briefings. Ms. Eaton testified that Ms. Cull was sensitive to changes and would try to get things back on course. She would ask for advice from staff about reducing expenditures if revenues were down.

[45] Ms. Cull received monthly reports from the staff which monitored the entire economic situation. These reports showed a range of forecasts, one of which was a surplus, although the "most likely" staff forecast was consistently pointing to a deficit. Ms. Cull, however, testified that those staff forecasts contained expenditures that she knew would not be made and incorrect revenue assumptions. As well, she said that expenditures are heaviest in the first four or five months of the fiscal year while most of the revenue tends to come in at the end. Her analysis of the monthly reports was that they were on target up to December of 1995. Ms. Eaton agreed that the monthly reports showed improvement through to November of 1995.

[46] In early 1996, Ms. Cull decided the government would not be able to achieve the original forecasted surplus of $114 million and revised it downwards. She and caucus still operated under the assumption that the 1995-96 budget would be balanced. She said that she had tabled a balanced budget and her job was to maintain it.

[47] The uncontradicted and unchallenged evidence of Ms. Cull was that that the B.C. economy is very difficult to predict, particularly those aspects based on commodities such as forestry which are very volatile at year end. Ms. Eaton also agreed that forestry revenues can swing by hundreds of millions of dollars at year end. Ms. Cull's staff had been instructed by her to be conservative in their forecasts so that any risk to be borne would be by her alone, and her experience with the staff forecasts had shown her instructions were borne out.

[48] Ms. Cull testified that "revenue optimism" was a shorthand phrase used by her staff, which she came to understand and use herself, to denote the complex concept of ranges of comfort associated with revenue projections. Both Ms. Cull and Ms. Eaton testified that the $275 million worth of "optimism" put into Budget 95 by Ms. Cull in March of 1995 did in fact materialize.

[49] Sometime in the weeks prior to the presentation of Budget 96, Ms. Cull had to decide upon the final figures to include for a revised forecast for 1995-96. The Petitioners submit that the "revenue optimism" inserted by Ms. Cull into the revised forecast at this time was unwarranted and could not be justified that late in the budget preparations. As of January 1996, Ms. Cull's staff was predicting a deficit for the 1995-96 fiscal year, rather than a surplus. However, Ms. Cull testified that she had knowledge not available to the staff of expenditure pressures that would not come about. As well, although the decisions were being made in the tenth month of a twelve month cycle, there were many ways available to her at that point to cut expenditures and save significant money. Ms. Eaton confirmed that there can be quite a lot of variation between January and March in any given year.

[50] Given these factors, in February of 1996, Ms. Cull asked her staff, through Ms. Eaton, to prepare the March 25, 1996 briefing note. It contained a chart which showed Ms. Cull how the staff predictions for revenue and expenditures as of January of a given year compared to the final revenue figures from the public accounts. In the previous three years, the staff January forecasts had underestimated revenues by $188.5 million, $318.8 million and $310.3 million respectively. Mr. Foster and Ms. Eaton agreed that the underestimation between the original revenue figures contained in the budgets as tabled in March of those years and the public accounts figures was even higher, reaching $800 million in 1994-95.

[51] Starting from this information, various options for revenue assumptions were put to Ms. Cull in writing so that she could decide upon a number for the revised 1995-96 forecast. Ms. Cull testified that, although discussions of this type had taken place in previous years, this particular exercise was done in writing at the suggestion of Ms. Eaton. Ms. Cull said she was the only person accountable for the figures and the decision had to be hers alone, which is why she signed on the decision lines for each option, after full discussion with Ms. Eaton. Options were presented for various assumptions underlying revenue figures for personal income tax, miscellaneous revenue, forests (unbilled scale), BCBC dividends, and year-end expenditure lapse.

[52] For personal income tax, Ms. Cull selected an option based upon the staff forecast underestimation for this source of revenue in the two previous years. For miscellaneous revenue, of the options presented, Ms. Cull selected a middle option based upon the average underestimation by staff in the last four years. For both BCBC dividends and year-end expenditure lapse, Ms. Cull accepted the current staff forecast.

[53] The Petitioners place particular reliance on Ms. Cull's choice of figures for forest revenue. The staff note preceding the options choice reads:

Over the last four years, the January forests revenue forecast has ranged from an overestimate of $15 million to an underestimate of $166 million. Most of the change is due to volatility in the estimated value of unbilled scale at year end (i.e. the amount of timber cut and scaled, but not billed by year end).

The current 1995-96 forecast [the staff forecast] assumes that volume of unbilled scale for the year will be unchanged from 1994-95, but that average stumpage rates will be lower. Thus the value of unbilled scale will be lower than last year.

There was an increase in volumes harvested in the first half of 1995-96, indicating that the volume and value of unbilled scale could be higher.

[54] Ms. Cull was then presented with the option of (1) accepting the current staff forecast, (2) raising the current forecast by up to $165 million, equal to the previous year's underestimate, or (3) raising it by $65 million, equal to the average underestimate for the last four years. Instead of choosing one of these options, Ms. Cull wrote "None of the above. Since it has been increasing every year in last 4, I'd be more comfortable with something around $100 M."

[55] Ms. Cull testified that she and her staff were aware of the problems surrounding forest revenue by this time. She had received a memorandum from Mr. Petter, then Minister of Forests, in December of 1995 in which he informed her, in respect of the Small Business Enterprise Program, that recent information "indicates a significant shortfall in revenue from the 1995-96 forecast due to less harvesting and billed volumes than forecast." Ms. Cull said she referred this information to her staff to investigate and report on it. It was factored into the staff's monthly report of February 20, 1996 and into the base upon which the options were built.

[56] However, she said she now knows, using twenty-twenty hindsight, that her Ministry did not understand what was happening with forest revenues, as they assumed there would be a year-end spike as there had been every other year. As well, the Ministry of Forests had moved to another system which Finance did not know about until July of 1996, and this resulted in certain revenue being wrongly estimated. This evidence was not expanded upon in examination in chief or in cross-examination.

[57] With respect to the "options briefing note," the only evidence before the court is that various assumptions were used, figures were arrived at, and Ms. Cull made her choices. There is no evidence that Ms. Cull instructed anyone on her staff to manipulate or juggle figures.

[58] As a result of her selections and decisions from the options briefing note, Ms. Cull added "optimism" of about $156 million to the most optimistic staff forecast, and had her staff prepare the revised forecast for 1995-96 to be included in Budget 96. The revised forecast showed a surplus of $16 million. Ms. Cull testified that she felt very comfortable in putting that figure into the budget in the full belief it would be realized as she had based it upon all the information available to her and upon reasonable assumptions. When the public accounts were published, the forecast ultimately had an error factor of 2.4%, compared to the historically acceptable rate testified to by Ms. Eaton of plus/minus 4%.

[59] The Petitioners refer to a page of hand-written notes from Lois McNabb, Director of Fiscal and Economic Analysis for Treasury Board at the relevant time. Mr. Foster and Mr. Lawless reported to Ms. McNabb; Ms. McNabb reported to Ms. Eaton. The page of notes is dated April 14, 1996 and contains the words "rev - needed $156m of optimism." It is argued that this piece of evidence is "totally damning" to Ms. Cull because it shows that Ms. Cull had pre-determined the surplus figure of $16 million and forced the staff to use "grossly unrealistic" figures to get to that amount. However, Ms. Cull's options decision had been made in March and, according to the uncontradicted evidence, the budget would have already gone to the Queen's Printer by April 14, 1996. Neither Ms. Eaton nor Ms. Cull had seen Ms. McNabb's handwritten notes before. I am unable to draw any damning conclusion from this document.

Were "fraudulent means" used to obtain votes?

[60] The Petitioners argue, however, that regardless of the process Ms. Cull used to reach her figures, she could not say the 1995-96 budget was balanced in April of 1996 when she knew the public accounts would not be published until September of 1996. To state as a fact something you know cannot be ascertained until a future date is, the petitioners submit, a misrepresentation. Moreover, they say Ms. Cull could not refer in the budget speech to spending surplus money when a surplus was eventually shown not to have existed. None of the Petitioners referred to the latter point as a representation relied upon by them, nor was it put to Ms. Cull when she was on the witness stand to allow her to respond.

[61] Nevertheless, this argument gives rise to the fundamental difficulty with this case - to understand very basically what a government budget is, how it is developed, and what Ms. Cull did with it required many days of intensive examination of witnesses and the introduction of numerous documents. I have referred to only a few documents, those which the Petitioners allege are particularly significant, and have only briefly touched on some of the considerations testified to by the witnesses. The theory of the Petitioners is, however, that a budget is a simple concept understood by everyone. Either it is balanced or it is not. Especially in an election year, the government must be scrupulously careful with any statements it makes respecting its budget. If the government is wrong in claiming a balanced or surplus budget, no matter by how little, the government has obtained votes by fraudulent means (assuming that it was this factor that caused a change in vote).

[62] This simplistic approach has its appeal but it is not appropriate when the decision to be made is whether the Petitioners have proven that the Respondents or someone on their behalf acted fraudulently within the meaning of section 256 of the Act. The best that can be done, even in an election year, is that the Minister of Finance, in this case Ms. Cull, make her decisions honestly and reasonably. I found Ms. Cull to be an honest, careful, articulate and well-informed witness. I accept that she believed that her assumptions were reasonable and that she was honest in her belief that the 1995-96 budget was balanced. She was ultimately wrong but she was not fraudulent.

[63] As mentioned earlier, the evidence demonstrated that Mr. Clark played no role in setting the figures for the revised forecast. He testified that he was busy during the early part of 1996 with the leadership campaign. He was briefed on the 1996-97 budget in February and March but had no input into and received no information about the 1995-96 revised forecast. He testified that he was told by Ms. Cull that the 1995-96 budget was balanced and agreed he wanted a balanced budget. He said he believed the budget was balanced and he campaigned on it.

[64] I have found that Ms. Cull's beliefs were honest and reasonable. On the evidence before me, Mr. Clark had no other source of information available to him and accepted her statements. He then made the public statement that the 1995-96 budget was balanced. The statement was not known to be false nor was it made without regard to its truth or falsity. In all of these circumstances I am unable to find that the representation that the budget for 1995-96 was balanced constitutes "fraudulent means" within the meaning of section 256 of the Act.

[65] If the voters in British Columbia accept the general characterization of the situation advanced by the Petitioners, that is a matter they can consider when they next come to vote, but the circumstances here do not give rise to a legal remedy.

Budget 96

[66] The Respondents take the position, relying on the Court of Appeal's earlier judgment in this case, that statements of intent or belief do not constitute "fraudulent means" within the meaning of section 256 of the Election Act. A budget is a prediction about the future, or an estimation as to future expenses and revenues. Whether the ultimate fiscal target will be reached depends upon the effectiveness of the monitoring program during the year and various decisions that will be made throughout the year to cut expenditures or find more sources of revenue. Therefore the Respondents contend that the provisions of section 256 can not apply to statements made about the 1996-97 budget, 18 months before the final figures for that budget would be known.

[67] The Petitioners' theory with respect to the 1996-97 budget, as argued by their counsel, is that there is an "inescapable inference" that the Premier's office put together a revenue forecast and called Ms. Cull to a meeting with Mr. Clark and Mr. Gunton (who was not called as a witness). At this meeting, according to the Petitioners, Ms. Cull was reluctantly persuaded to incorporate grossly unrealistic and dishonest figures into the budget by a promise of access to the Forest Renewal B.C. funds if she complied.

[68] Alternatively, and more in keeping with the evidence that actually emerged during the hearing, I take the Petitioners' argument to be that Ms. Cull, as Finance Minister, did not tell the public that, although she was confident that the assumptions upon which that budget was based were reasonable, she had had to rely on information from sources whom she considered to be better informed than she was about the state of negotiations of the softwood lumber deal with the United States. Although she accepted the advice as knowledgeable, she was not completely comfortable with the probability of those assumptions so she had established a back-up or contingency plan to use alternate sources of revenue if the assumptions did not materialize. One of the sources she wished to use, if other contingency plans did not materialize, was the Forest Renewal B.C. funds. Counsel for the Petitioners argues that the public should have known this background. None of the Petitioners themselves testified that this was significant to them, and Ms. Umbarger, the only Petitioner who mentioned hearing at some later time that the 1996-97 budget would not be balanced, agreed that that budget had not yet happened and there might be a reason, such as declining revenues, why it did not eventually balance.

State of the Economy

[69] The Petitioners rely upon a briefing note dated March 8, 1996 headed "Economy Tanks in Fourth Quarter: 1996 Forecast at Risk." This was prepared for Brenda Eaton by Mr. Lawless, the chief economist. Mr. Lawless was concerned that there was a major deterioration in the British Columbia economy during the last part of 1995. Notwithstanding his concerns, however, Mr. Lawless retained the 2.7% Gross Domestic Product growth rate upon which the forecast for the budget was based. Ms. Eaton replied that she believed the cautions contained in his memo were well understood and documented and she was moving into budget production mode. The memo was not forwarded to Ms. Cull. Ms. Eaton testified this was because she felt the weaknesses in the economy had been thoroughly dealt with in the February monthly report and in verbal briefings. Ms. Cull testified that she received mixed signals about the state of the economy by the end of the third quarter. For instance, the February monthly report stated that lumber and natural gas prices had risen sharply, but the price of pulp had decreased. Generally, she was informed that the staff maintained the 2.7% growth rate, and moderate growth was expected in the final quarter.

Alternate Revenue Forecast

[70] During the period between Mr. Harcourt announcing in November of 1995 that he would be stepping down and Mr. Clark taking over as leader of the NDP in February 1996, a committee of deputy ministers was formed to prepare transition plans for the new premier. Three of them became known informally as the Fiscal Budget Steering Committee, whose task was to focus on the revenue forecast for 1996-97. This committee consisted of Brenda Eaton, Tom Gunton (Deputy Minister of Environment and Parks), and Doug McArthur (Deputy Minister to the Premier), although Mr. McArthur attended only one meeting.

[71] During January and February, Ms. Eaton and Mr. Gunton put together an Alternate Revenue Forecast, with various scenarios based on commodity price changes. Ms. Eaton testified that the assumptions underlying this forecast were primarily Mr. Gunton's; the information regarding the softwood lumber negotiations came from Mr. McArthur, who was the chief negotiator. This revenue forecast was about $850 million higher than the staff forecast.

[72] Ms. Cull and Ms. Eaton met with Mr. Clark twice to discuss this forecast. At the first meeting in February, Ms. Cull told Mr. Clark she was not comfortable with the figures as she felt they were too optimistic. She testified the figures were about $400 million higher than the forecast she considered to be reasonable. At that point, based on the knowledge she had about revenues and expenditures that was not available to the staff, Ms. Cull was comfortable with a figure about $250 million higher than the staff forecast. Ms. Cull obtained further information about the assumptions that had gone into the alternate forecast. She learned that Mr. McArthur, who was involved in the softwood lumber negotiations, was of the view that the revenue projections based on higher lumber prices were reasonable. She was willing to accept his opinion, but wanted a back-up or contingency plan beyond the normal expenditure and revenue controls should the numbers not materialize since she was the person who would be politically accountable at the end of the day.

[73] Ms. Cull testified that during her consideration of the appropriate figures, she was concerned about the social consequences of picking too conservative a revenue forecast, which would mean unnecessary cuts to education and health care. This was unacceptable to her as a social democrat. Ms. Eaton confirmed that Ms. Cull had voiced these concerns to her, but did not agree that Ms. Cull had told her that certain government policies had been held back in the two previous years because of underestimation of revenue.

Alternate Revenue Sources

[74] Ms. Cull and Ms. Eaton both testified that they put together a list of alternate revenue sources and met with Mr. Clark to discuss the concept. According to Ms. Eaton, the most significant source discussed was Forest Renewal B.C., which was running a substantial surplus. Ms. Eaton was aware there would be difficulties in accessing this money but did not know what they were.

[75] Ms. Cull could not recall how much of the list of alternate revenue sources was discussed with Mr. Clark but she sought assurances from him on a number of contingency options. One of them was Forest Renewal B.C. She said Mr. Clark assured her that that was one of the options that would be available if the forecast did not come about and if the other contingency measures were insufficient. No decision was made on whether the Forest Renewal funds would be used because there was no evidence that revenue would be required. She said the decision as to the budget revenue figures was hers alone, not Mr Clark's.

[76] Ms. Cull testified that Mr. Clark never instructed her that they had to have a balanced budget but there was a clear expectation from both Mr. Harcourt and Mr. Clark that it was her job to balance both the 1995-96 budget and future budgets. No one ever told her she had to bring in a surplus budget regardless of the facts. Mr. Clark said he may have told Ms. Cull he wanted a balanced budget, although he did not think he had. He agreed that he did want one as it was good public policy. He said he and Ms. Cull discussed the Alternate Revenue Forecast, although he said he did not know where that forecast had come from. He said he had not discussed the budget figures with Mr. Gunton or with Mr. McArthur, nor did the Fiscal Budget Steering Committee report to him.

[77] Mr. Clark agreed that he and Ms. Cull talked about four or five potential revenue sources which Ms. Cull had in mind if there were any problems down the road, given the conflicting signs in the economy. While they did not think there would be any problems, these options, including Forest Renewal B.C., were available for consideration. He did not authorize Ms. Cull to use the funds, but said if necessary, they would revisit the issue. He denied that he sought to have Ms. Cull go above her own comfort level by telling her she could use these funds, and said the budget figures were her decision alone.

[78] Although the significance of the dispute over the Forest Renewal funds was not made clear during the evidence, it appears that, as Minister of Finance, Ms. Cull had argued strenuously for a cap on these funds, with the surplus to flow into general revenue. Mr. Clark said that Mr. Harcourt had decided the funds should go back into forestry and not into general revenue, a policy with which Mr. Clark agreed, but there was no legal prohibition to using them; it was a legitimate option.

[79] Much argument was directed at whether Ms. Cull and Mr. Clark contradicted each other in such a way as to throw doubt on the credibility of each. The difference between them seems to be in the level of assurance Ms. Cull took as to the availability of the Forest Renewal funds - Ms. Cull said that, although no decision was made to use the funds, she was assured they would be available to her if the forecast and other contingency funds did not materialize, and Mr. Clark said he agreed to revisit the availability of these funds in those circumstances. Both agreed that the list of alternative sources of revenue came from Ms. Cull. Nothing Ms. Eaton said contradicted this. I can draw no conclusions adverse to the credibility of Ms. Cull or Mr. Clark from this evidence, nor can I find in the evidence any support for the proposition that Ms. Cull was forced by Mr. Clark to accept figures which she knew were unreasonable and unattainable.

[80] What is more important, according to the Petitioners' argument, is that the public was not told that the finance minister had contingency plans, should the forecast not materialize. Not to have revealed this, it is contended, resulted in votes being obtained through fraudulent means because it shows Ms. Cull had no faith in her forecast. However, I note that none of the Petitioners mentioned this lack of disclosure as a significant factor in their realization that they had been "defrauded" of their vote.

[81] Ms. Cull said she did not mention the contingency plan because it was no different from the contingency plans she had had in any previous year, and all the assumptions and optimism were included in the public budget document. She assumed she would be able to manage the budget to reach the fiscal target as she had previously. When faced with the cut in downstream benefits in early 1995, for example, she had immediately cut expenditures by $300 million. In a previous year, she had been able to cut expenditures in excess of $500 million when federal income tax numbers had turned out to be wrong. All that is before me is the fact that, after eighteen months during which the budget was managed by another Minister of Finance, Ms. Cull having been defeated in the 1996 election, there was a deficit amounting to 2% of the total budget. Whether Ms. Cull could have managed the revenues and expenditures adequately, or whether she would ever have had to use any contingency plans will never be known.

The Final Figures

[82] Ms. Cull testified that after receiving all of the above information, considering all the forecasts in front of her, including the staff forecast and the Alternate Revenue Forecast, she established the assumptions she felt were reasonable and that she was comfortable with, using her best judgment. Her staff then prepared the budget which was published in "Budget 96." The final revenue figure in the budget was $20,659,000,000, as opposed to the alternate revenue forecast of $20,785,000,000 and the staff forecast of $19,948,000,000. The petitioners point out that despite a lower total revenue figure than the Alternate Revenue Forecast, Ms. Cull's figure for forestry revenue was $100 million higher. Ms. Cull testified that it is not appropriate to compare her figures to a particular forecast; she built her forecast as she always had, based on all the information available to her.

[83] Ms. Cull testified that she did not accept her staff forecast for a number of reasons: she knew it was conservative, as she had instructed her staff to be conservative in their forecasts; the two previous budgets had underestimated revenues by $500 million and $800 million; she had information on revenue and expenditure decisions her staff did not have; underestimating revenues and cutting programs unnecessarily was not acceptable to her; she was politically accountable and her staff was not - she would never blindly take her staff's figures and live or die by the consequences. She said she believed her forecast was reasonable and was based on reasonable assumptions, and she believed the budget was balanced.

Timing of the Election

[84] It is the theory of the Petitioners that the election was called the same day the budget was tabled to forestall the formal budget debate in the legislature. The budget would normally have been delivered at the end of March but was delayed until the end of April. Ms. Cull testified that she presented "Budget 96" on the morning of the day made available to her by the Premier. She tabled the comptroller general's report of interim financial statements for the ten-month period ending January 31, 1996, the Budget Reports, the Estimates, and the pertinent legislation. It was her recollection that the budget was delayed because the House was not sitting and a decision had been made not to recall it. Mr. Clark dropped the writ that afternoon. She was not involved in the choice of dates.

[85] Mr. Clark testified that he had to call an election sometime within eight months of the time he actually called it, and the decision to do so was made on about April 25th. He said that the budget was thoroughly debated during the election and there is no significance to the fact that the formal budget debate did not take place. He described the eight day budget debate to be somewhat ritualistic, with the real debate on the estimates taking place later, which would mean he would not have been able to call an election until July or August. He said he called the election at the same time as presenting the budget so that he could show British Columbians what he had actually done, not what he was just promising to do, expecting all of his plans and announcements to withstand public scrutiny. He agreed that he said, in an infomercial, that the NDP was going to balance the budget again next year, and that he absolutely believed that to be true.

Were "fraudulent means" used?

[86] Putting all of this together, then, the Petitioners say the Premier's office forced Ms. Cull to accept the Alternate Revenue Forecast despite her level of discomfort with it, and forced her to incorporate it, or something close to it, into Budget 96. According to the Petitioners' analysis of the evidence, either Mr. Clark is to be believed and Ms. Cull had no back-up plan and was therefore dishonest in using those numbers, or Ms. Cull is to be believed and there was a back-up plan which should have been disclosed to the electorate.

[87] If the Petitioners could actually prove that there was a conspiracy between Mr. Clark and/or his advisors and/or Ms. Cull to insert grossly exaggerated numbers into this budget, ones which they knew could never materialize, they might overcome the hurdle placed in their way by the Court of Appeal - that is, that statements of intention or belief cannot constitute "fraudulent means."

[88] In order to come to the conclusion that Ms. Cull was forced by Mr. Clark to put forward a fraudulent budget, I would have to ignore the evidence, assume both Mr. Clark and Ms. Cull lied throughout the entire process and reject everything they said on principle. Then, without any evidence to support the Petitioners' theory, I would nevertheless have to make the findings of fact they wish me to make based on the simple proposition that if Mr. Clark or Ms. Cull testified to something, the opposite must be true. This would not be an appropriate exercise of my function.

[89] I am unable to conclude, based on the evidence, that there was any such conspiracy and that Ms. Cull's beliefs in the projections contained in Budget 96 were anything other than her best judgment in the circumstances. The decisions were hers alone to make; the assumptions she used and projections she reached were available to the public. The existence of the contingency plan, on the evidence before me, shows caution rather than deceit. As with Budget 95, the fact that Ms. Cull's forecast was ultimately shown to be wrong does not make her statements fraudulent.

[90] As well, as there is no evidence to support the theory of a conspiracy, the Petitioners are met with the valid argument that statements made about this budget in May of 1996 could only be statements of intention and belief. They cannot be "fraudulent means," and even Ms. Umbarger seemed prepared to concede during cross-examination that she could accept there might be an explanation for discrepancies in a budget for a year that had not yet occurred.

[91] As for the Debt Management Plan, it was a long-range plan to reduce the debt, with targets related to credit ratings, formulated on the advice of business and labour leaders. It did not have specific figures attached to it and, according to Ms. Eaton, played little if any part in the internal decisions made by Treasury Board staff or by Ms. Cull, providing only a broad reference point. I heard no evidence showing that it would have placed pressure upon Ms. Cull to make any particular decision.

CONCLUSION

[92] The Petitioners concede that the Respondents did not personally contravene section 256 of the Act. No breach of section 256 by Ms. Cull or Mr. Clark on behalf of the NDP has been proven. The petition is dismissed.

[93] In view of the conclusion I have reached, there is no need to consider the interesting arguments advanced under section 151 of the Act as to whether the breach materially affected the election and who would bear the onus on that issue.

[94] I am indebted to all counsel for their thorough and helpful arguments.

[95] If there is a need to speak to costs, counsel may arrange to do so through the Registry.

APPENDIX 1

THE STATUTE

Statutory Sections

Election Act, R.S.B.C. 1996, c. 106

150 (1) The right of an elected candidate to take office or the validity of an election may not be challenged except by an application under this section.

(2) An application may be made in accordance with this section to the Supreme Court for a declaration regarding the right of an individual to take office or the validity of an election.

...

(4) An application may be made only by a candidate in the election, the chief electoral officer or a voter for the electoral district for which the election was held.

(5) An application may be made only on one or more of the following bases:

(a) that a candidate declared elected was not qualified to hold office at the time he or she was elected;

(b) that an election should be declared invalid because it was not conducted in accordance with this Act or a regulation under this Act;

(c) that an election should be declared invalid because section 255, 256, 257 or 258 was contravened.

...

(10) If the application is based on a claim that section 255, 256 or 258 was contravened, the evidence regarding that claim must be given orally by witnesses rather than by affidavit.

151 (1) On the hearing of an application, the court may do any of the following:

...

(c) declare that an election is confirmed as valid;

(d) declare that an election is invalid and that the office is vacant.

(2) The court must not declare an election invalid by reason only of an irregularity or a contravention of this Act or a regulation under this Act if the court is satisfied that

(a) the election was conducted in good faith and in accordance with the principles of this Act, and

(b) the irregularity or contravention did not materially affect the result of the election.

(3) The court may confirm the election of a candidate in relation to which the court finds there was a contravention of section 255, 256, 257 or 258 if the court is satisfied that

(a) the candidate did not contravene the applicable section, and

(b) the contravention did not materially affect the result of the election.

256 (2) An individual or organization must not, by abduction, duress or fraudulent means, do any of the following:

(a) impede, prevent or otherwise interfere with an individual's right to vote;

(b) compel, persuade or otherwise cause an individual to vote or refrain from voting;

(c) compel, persuade or otherwise cause an individual to vote or refrain from voting for a particular candidate or for a candidate of a particular political party.

APPENDIX 2

THE PETITION

[96] The Petitioners apply to this court for orders that:

b. The election of New Democratic Party candidate, Sue Hammell, in the electoral district of Surrey - Green Timbers in the general provincial election of May 28, 1996, be declared invalid and that the office be vacated as a consequence of the Respondents' violation of section 256(2)(c) of the Election Act of the Province of British Columbia and pursuant to the powers and provisions of sections 150 and 151 of the said Election Act.

d. The election of New Democratic Party candidate, Graeme Bowbrick, in the electoral district of New Westminster in the general provincial election of May 28, 1996, be declared invalid and that the office be vacated as a consequence of the Respondents' violation of section 256(2)(c) of the Election Act of the Province of British Columbia and pursuant to the powers and provisions of sections 150 and 151 of the said Election Act.

i. The election of New Democratic Party candidate, Ed Conroy, in the electoral district of Rossland-Trail in the general provincial election of May 28, 1996, be declared invalid and that the office be vacated as a consequence of the Respondents' violation of section 256(2)(c) of the Election Act of the Province of British Columbia and pursuant to the powers and provisions of sections 150 and 151 of the said Election Act.

[97] The facts upon which this petition is based are as follows:

1. The Petitioner, Leonard Friesen ("Friesen"), resides in the electoral district of Surrey-Green Timbers, British Columbia.

2. The Petitioner, Holly Kuzenko ("Kuzenko"), resides in the electoral district of New Westminster, British Columbia.

3. The Petitioner, Mildred Umbarger ("Umbarger"), resides in the electoral district of Rossland-Trail, British Columbia.

4. The Petitioners, Friesen, Kuzenko and Umbarger, ... voted in the general provincial election held on May 28, 1996 and are aggrieved as a result of the misrepresentations of the Respondents, their servants and agents as hereinafter particularized.

5. The Respondent, Sue Hammell ("Hammell"), was elected as a Member of the Legislative Assembly of the Province of British Columbia in the electoral district of Surrey-Green Timbers in the general provincial election held on May 28, 1996 and was a member of and a candidate endorsed by the New Democratic Party of British Columbia.

7. The Respondent, Graeme Bowbrick ("Bowbrick"), was elected as a Member of the Legislative Assembly of the Province of British Columbia in the electoral district of New Westminster in the general provincial election held on May 28, 1996 and was a member of and a candidate endorsed by the New Democratic Party of British Columbia.

12. The Respondent, Ed Conroy ("Conroy"), was elected as a Member of the Legislative Assembly of the Province of British Columbia in the electoral district of Rossland-Trail, in the general provincial election held on May 28, 1996 and was a member of and a candidate endorsed by the New Democratic Party of British Columbia.

46. During the election campaign preceding the provincial general election held on May 28, 1996 up to and including the election day the N.D.P., through its leader Clark, its agents and its endorsed candidates, including the individual M.L.A. Respondents, and the agents of the endorsed candidates, by diverse methods and on diverse occasions misrepresented a number of material facts in order to induce potential voters, including the Petitioners, to vote for candidates endorsed by the Respondent, New Democratic Party.

47. In particular the misrepresentations made by the Respondents to fraudulently persuade the Petitioners and other members of the electorate to vote for the candidates endorsed by the Respondent, New Democratic Party, include the following:

a. that the Government of British Columbia during the term of office preceding the general election of May 28, 1996, had been fiscally prudent and as a result the budget of the Government for the 1995-96 fiscal year was in surplus;

b. that the Government of British Columbia during the term of office preceding the general election of May 28, 1996, had been fiscally prudent and as a result the budget of the Government for the 1996-97 fiscal year would be in surplus, and

c. that as a further consequence of such fiscal prudence the Government of British Columbia was able to afford a capital development program in an amount of $250,000,000 to improve the Province's infrastructure, including schools, transport and other facilities.

48. The statements particularized in the preceding paragraph were false and known to be false at the time they were made and the Respondents' further concealed the information required to ascertain the veracity or lack thereof of the misrepresentations.

49. The nature of the information contained in the misrepresentations is of such a kind that the N.D.P. and the candidates endorsed by it knew that some or all of the misrepresentations were false and further, the said parties disseminated such false information for the purpose of inducing the members of the electorate to vote for the candidates endorsed by the N.D.P., knowing that such misrepresentations were central to the concerns of the voters. By doing so the Respondents contravened the Election Act by inducing or causing an individual to vote, by fraudulent means within the meaning of section 256(2) of the Election Act, to elect the candidates endorsed by the N.D.P..

50. In the alternative to paragraphs 48 above, if the N.D.P., and its endorsed candidates, did not actually know whether the misrepresentations were true or false, then they were wilfully blind to or indifferent to the truth of the misrepresentations as alleged and the statements were merely manufactured without belief in or concerns for the truth of the misrepresentations, for the purpose of inducing individuals to vote, by fraudulent means, within the meaning of section 256(2) of the Election Act, to elect the candidates endorsed by the N.D.P.

51. The Petitioners, Friesen, Kuzenko, Umbarger, and the voters were caused and induced to vote for the candidates endorsed by the N.D.P. by the aforesaid fraudulent misrepresentations and had they known the truth they would not have voted for the said candidates.

"M.A. Humphries, J."
The Honourable Madam Justice M.A. Humphries