Newfoundland and Labrador’s pandemic election headed to trial four years later

ST. JOHN’S — A man who says his right to vote was denied in Newfoundland and Labrador’s 2021 election will finally have his day in court.

In a decision released Wednesday, the provincial Supreme Court ordered a trial to begin in June in Whymarrh Whitby’s legal challenge of the province’s pandemic-delayed election four years ago.

Whitby says he struggled to maintain hope as his slow-moving lawsuit worked its way through various delays and challenges in court.

“But this gives me some hope that there is still the possibility of justice,” he said about the court’s decision. “And it definitely felt like there was a possibility that there would be no justice in this situation.”

Whitby says he never received a ballot after the 2021 provincial election was side-swiped by a COVID-19 outbreak, prompting election officials to cancel all in-person voting and shift to a mail-in vote. The Liberals won a slim majority with a voter turnout of 51 per cent, according to the province’s elections oversight body.

He filed his lawsuit in April 2021, just weeks after the votes were tallied. It alleges election officials failed to run a vote that was fair, impartial and in compliance with provincial law.

Whitby was registered to vote in the St. John’s East-Quidi Vidi district, where former provincial NDP leader Alison Coffin, a co-plaintiff in the lawsuit, lost her seat by 53 votes.

John Abbott, the Liberal who won the seat, is a defendant in the lawsuit, as is Bruce Chaulk, the province’s former chief electoral officer. Overall, the Liberals won 22 of the legislature’s 40 seats.

Whitby and Coffin’s suit asks for the election result in their district to be overturned, so a byelection can be held.

In a decision dated Monday, Justice Garrett Handrigan ordered a nine-day trial to begin on June 16. The decision indicated the plaintiffs intend to present evidence from other voters who, like Whitby, say they were unable to cast a ballot.

Handrigan’s decision dismissed arguments by Chaulk’s lawyers that the suit should be declared moot because another provincial election is expected this year. Lawyers for Abbott had supported those arguments.

“I really appreciated that the judge understood that the evidence is there, it’s worth having a trial,” Whitby said in an interview Wednesday.

He hopes that acknowledgment will push politicians to make necessary changes to the provincial Elections Act to ensure any problems that plagued the 2021 vote don’t reoccur.

“Democracy is a fundamental part of our society … and everyone should have the ability to participate in that,” he added. “And when that doesn’t happen, we should all collectively care. A lot.”

Whitby said he is hoping the trial will result in an acknowledgment that the election was flawed, and that it “disenfranchised a lot of people,” effectively robbing them of input into the last four years of legislation.

“It’s important that we understand that not everyone got a say,” he said.

This report by The Canadian Press was first published April 2, 2025.

Sarah Smellie, The Canadian Press