A vote recount for the close riding of Saint John Harbour will be held Wednesday, but a court application by the Progressive Conservatives to have the election of Liberal candidate Gerry Lowe thrown out based on allegations that at least 40 people were documented as voting more than once has been put on hold.

Matthew Letson, one of the lawyers representing Progressive Conservative candidate Barry Ogden and riding association president Peter Josselyn, advised the court Tuesday afternoon the application "may have been brought prematurely."

Counsel for the chief electoral officer pointed out such an application must be filed within 30 days of the return of the writ, which only occurs after any and all recounts have been completed, he said.

So Letson amended the application, withdrawing that portion for now and requesting only the recount, which had already been granted on Monday.

"That's a significant change," remarked Court of Queen's Bench Justice Hugh McLellan, who had described the notice of application as "unusual."

"It's a significant change, for the time being," said Letson.

"We expect to bring the issue of irregularities in the voting process back to court once the results of the recount are known," he said later in an emailed statement.

Ogden, a retired teacher, lost the riding to Lowe, a city councillor, by 10 votes on Sept. 24, according to Elections New Brunswick results.

Progressive Conservative Leader Blaine Higgs, left, won more seats in the Sept. 24 election, but Liberal Leader Brian Gallant still hopes to form government. (CBC)

It was the closest race in the province and depending on the recount findings could have a major impact on the balance of power in the province, as the PCs and Liberals both hope to form government.

Blaine Higgs's Progressive Conservatives won 22 seats in the 49-seat legislature, three short of a majority.

Brian Gallant's Liberals won 21 seats, but as the incumbent government, they can try to win the confidence of the legislature when it reconvenes Oct. 23.

Procedures 'not properly followed'

On Monday, Ogden and Josselyn filed a notice of application with the court seeking an order setting aside the election of Lowe and declaring the seat vacant.

"The electoral procedures set out in the Elections Act and the applicable regulations were not properly followed in a manner that may have altered the outcome of the election" in the riding, the notice of application alleges.

It's unclear whether they're alleging people actually voted twice or that they were only documented twice.

Other grounds to be argued include that an election officer or a vote tabulation machine "improperly counted or made an incorrect statement of the number of votes cast for a candidate or the returning officer improperly tabulated the votes."

I think we violated absolutely nothing. - Gerry Lowe, Liberal candidate

None of the allegations have been proven in court.

Lowe, who said he learned of the PC application and hearing from CBC News on Monday night, seemed to know little more on Tuesday.

"I don't know who voted 40 times twice," said Lowe, who was in Fredericton and did not attend the hearing in Saint John court. "I mean, I'm totally, what we did, we just did what we did. I think we violated absolutely nothing.

"I have no idea. I thought it was about machinery counts and stuff like that, so I don't know."

Asked whether he is confident about holding on to his seat, Lowe replied: "I am, as far as I know. I don't know what's going on. It is what it is."

Elections New Brunswick spokesperson Paul Harpelle could not immediately be reached for comment.

Involves 8 of 11 polling stations

In a sworn affidavit filed in support of the application, Josselyn said he reviewed the statement of elector forms in his possession and "on some occasions, more than one vote was cast under the same unique combined poll number and elector number."

Each voter is assigned a unique combined poll number and elector number and once they vote, they are supposed to be struck from the list of electors.

"Accordingly, in completing the statement of electors, a given elector's combined poll number and elector number should appear only one time," the affidavit states.

But of the forms he has reviewed, Josselyn contends there are "approximately 40 instances in which a unique combined poll number and elector number appears twice."

Saint John Harbour PC candidate Barry Ogden, left, and riding association president Peter Josselyn, right, both declined to comment following Tuesday's hearing. (Bobbi-Jean MacKinnon/CBC)

He believes the statement of elector forms that he hasn't reviewed would represent 1,000 additional voters, but does not estimate how many, if any, might involve irregularities.

The approximately 40 alleged instances he does detail involve eight of 11 polling stations across the riding, which stretches from Mount Pleasant, where billionaires Arthur and John Irving live, to the subsidized apartments in the north end, to the working-class lower west side, and the south end.

The stations include the Carleton Community Centre, Carleton Kirk United Church, St. Luke's Church Hall, Wright Street Housing Community Hall, Market Square Senior Complex, Saint John Boys & Girls Club, Vineyard Christian Fellowship and InterAction Theatre, he contends.

Some of the alleged instances occurred during advance polls, while others occurred on election night, according to Josselyn's affidavit.

In some cases, an elector number was recorded twice within hours, he contends.

Requested recount

Ogden and Josselyn also requested a judicial recount in their application, citing the closeness of the vote results.

Recounts are granted in any race decided by 25 votes or less, upon request.

The judge issued notice Monday to all Saint John Harbour candidates of the recount, to be held Wednesday at 10:30 a.m.

"Likely [the recount will] run a couple of days or so," McLellan said Tuesday.

Lowe said he doesn't plan to attend the recount.

NDP Leader Jennifer McKenzie, who placed a distant third in the riding, said she doubts she'll attend either, but she was at Tuesday's hearing.

PC Barry Ogden lost the riding to Liberal Gerry Lowe by 10 votes on Sept. 24, according to Elections New Brunswick results. 0:50

She said she has "a vested interest in making sure that it's done right and goes according to the way it should."

"I think every seat counts, every vote counts, and that's what we're seeing here today is that, you know, everybody should exercise their right to vote because it can make a real difference — not just to a riding's result, but to a provincial result."

The judge also issued summonses to the returning officer and election clerk for the riding, who must produce the envelopes or ballot transfer boxes containing the counted ballots, the rejected ballots and the spoiled ballot papers and the statements of votes cast signed by the appropriate poll officials, according to the court document.

On Tuesday, Craig Astle, director of operations for Elections New Brunswick, transported sealed boxes of ballots into the courthouse for Wednesday's recount under escort by sheriff's deputies.

2014 recount found few errors

Lowe won the Saint John Harbour race with 1,865 votes, 10 more than Ogden, according to Elections New Brunswick results.

NDP Leader Jennifer McKenzie earned 836 votes, followed by Green Party candidate Wayne Dryer with 721 votes and People's Alliance candidate Margot Brideau with 393 votes.

Independent candidate Adam Salesse campaigned in the critically close riding but wasn't listed on the ballot when voters went to the polls because he only submitted part of the required paperwork.

On Tuesday, Craig Astle, director of operations for Elections New Brunswick, unloaded 84 sealed boxes of special ballots cast for the Saint John Harbour race from outside the riding in preparation for Wednesday's recount. Ballots from advance polls and regular votes were expected to follow. (Bobbi-Jean MacKinnon/CBC)

In New Brunswick's 2014 provincial election, parties requested and received seven judicial recounts following election night problems with the reporting of voting machine results.

But few actual errors were discovered when counts were redone by hand over several days by an assortment of New Brunswick judges.

In four of the ridings, vote differences recorded between the two leading candidates on election night stayed the same following the recount. In two ridings it changed by one vote and in one riding it changed by two votes.

Higgs and Gallant both met with Green Party Leader David Coon on Tuesday, each hoping to garner an agreement, but Coon told CBC News they are "nowhere near" negotiations or discussing platform planks.

The Greens and People's Alliance each won three seats.

On Monday, Higgs suggested an agreement between the B.C. NDP and Greens could serve as a template for a possible partnership with the Green Party's three MLAs, which would allow the PCs to pass legislation.

Last Friday, People's Alliance Kris Austin agreed to provide stability for a Progressive Conservative minority government on a "bill-by-bill basis" for 18 months. Higgs said he spoke to Austin about stabilizing the government but made no formal agreement.

Gallant has ruled out any deal with the People's Alliance.