ONTARIO COURT OF JUSTICE
DATE: 2025 03 11
BETWEEN:
ANDREA GREBENC
— AND —
ONTARIO (CHIEF ELECTORAL OFFICER)
Before Justice Jennifer Campitelli
Heard on March 6, 2025
Reasons for Judgment released on March 11, 2025
Counsel:
J. B. Siegel .......................................................................................... counsel for A. Grebenc
E. Mogil, H. Lefton, M. Damte ............................................................. counsel for N. Pierre
J. Ayers, S. Lemke, E. Chapple ......................................... counsel for Elections Ontario
DECISION ON APPLICATION FOR JUDICIAL RECOUNT
[1] On March 6, 2025 I found that the applicant had failed to establish a prima facie case in support of the requested order for a judicial recount of the votes cast in the electoral district of Burlington. I dismissed Ms. Grebenc’s application with reasons to follow. Here are those reasons.
Background:
[2] On February 27, 2025 a general election was held within the province of Ontario, and carried out in accordance with the Elections Act, R.S.O. 1990, c. E.6. The official tabulation of the election results occurred on March 1, 2025 at the office of the Returning Officer. In the district of Burlington, Ms. Pierre, the candidate for the Progressive Conservative Party received 24,118 votes, while Ms. Grebenc, the candidate for the Liberal Party received 24,079 votes. As a result, Ms. Pierre was declared elected. The vote differential between Ms. Pierre and Ms. Grebenc was 39 votes, in favour of Ms. Pierre.
[3] Section 71(1) of the Elections Act provides that a candidate may bring an application for a recount of the votes cast. However, that application must be brought and heard within four days of the official tabulation, excluding a Sunday.
[4] Counsel for Ms. Grebenc brought an application, requesting a recount of the votes cast be ordered in the district of Burlington. The application materials were served and received by the court sometime within the business day on March 5, 2025. The matter first appeared before me on March 6, 2025, at 11:30 a.m., which is the fourth day following the official tabulation, excluding Sunday.
[5] At that time, counsel for Ms. Pierre brought an application to have the matter adjourned briefly, in order to provide Ms. Pierre with an opportunity to prepare responding materials. Mr. Mogil argued the strict timelines outlined in the Elections Act created inherent prejudice, resulting in Ms. Pierre not having adequate time to formulate her response.
[6] Similar to my colleague Justice Amarshi, who decided this very same issue in Jaswal v. Ontario (Chief Electoral Officer), 2018 ONCJ 432 (OCJ), I found that a plain reading of the relevant section of the Elections Act clearly stipulates that a hearing must not only be commenced within four days of the official tabulation, but a decision also rendered by the end of the fourth day: Jaswal v. Ontario (Chief Electoral Officer), at paragraph 9.
[7] Given the closeness of the final vote, I found there was a sufficient public interest in the application being heard before the statutorily imposed deadline elapsed. Therefore, court reconvened at 5:00 p.m., with all parties and court staff prepared to work into the evening hours to complete the work.
[8] When the relevant provisions of the Elections Act are interpreted purposefully, the overarching intention of the legislative framework is clear. There needs to be public confidence and a sense of finality attached to the result of a general election. As such, if challenges are to be brought with a view to the process, which brought about the reported result, those challenges must be both litigated and resolved swiftly.
[9] Before moving forward in my analysis, I want to commend all parties involved in this application who produced high quality, comprehensive materials in a matter of hours, not days. All parties made clear, succinct, and very able submissions, which allowed us to complete this very important work within the timeframe mandated by the legislation.
[10] Ms. Grebenc’s application was initially grounded on the following:
(1) An affidavit composed by one of the volunteer scrutineers for the Liberal Party, who worked in “ADVOO2 Mail-In Ballot – Room Two”. Ms. Sarah Manney witnessed the counting of the write-in special ballots in her capacity on February 27, 2025; and
(2) An affidavit prepared by Milton Chan following his review of the “Official Return from the Records (FO244)” or the “Tabulation Report”.
[11] However, following receipt of the affidavit materials from Mary-Ellen Heiman, the Returning Officer for the Electoral District of Burlington, the applicant very reasonably abandoned any aspect of his argument, which relied on the affidavit produced by Milton Chan. Milton Chan had initially identified an apparent discrepancy connected with the vote tabulators’ treatment of “unmarked ballots”. That discrepancy was associated with Poll 001 and Poll 006 respectively. Ms. Heiman’s affidavit provided some clarity, revealing that the Deputy Returning Officers, who completed the “Statement of the Poll” inadvertently wrote down the numbers of “unused ballots” in the “unmarked ballots” column. Thus, the apparent discrepancy regarding unmarked ballots was in fact a product of a misunderstanding by the Deputy Returning Officers regarding “unmarked” and “unused ballots” and was not a product of the tabulators producing incorrect results: Affidavit of Mary-Ellen Heiman at paragraph 22.
The Evidence of Sarah Manney:
[12] Ms. Manney was a credible witness who provided clear and forthcoming evidence on these proceedings, notwithstanding she was given very little notice. I found Ms. Manney’s evidence to be candid, fair, and reliable.
[13] Ms. Manney testified that she was in the Burlington area visiting with family on February 27, 2025. Ms. Manney had “worked the Liberal Party before”, so she reached out “quite late” and asked, “what they needed on election day”. Ms. Manney recalled that she wanted to “help out”. Ultimately, Ms. Manney learned that the Liberal Party needed a scrutineer. She remembered that she received and reviewed a “handout…detailing the guidelines for scrutineering”; however, that was not a function she had assisted with previously.
[14] It was Ms. Manney’s evidence that she attended the polling station in her role as scrutineer for the Liberal Party and witnessed the counting of the write-in special ballots. Ms. Manney testified that she objected on “two ballots”, where the name “Bonnie Crombie” was scratched out, and the name “Andrea Grebenc” was written on the ballot. Ms. Manney was able to provide illustrations relative to those two observed ballots, which were attached to her affidavit. She recalled that her objection was heard, dismissed, and those votes were rejected. When pressed, Ms. Manney was “very, very confident” in there being two ballots, which appeared the way she depicted them, with “Bonnie Crombie” being crossed out, and “Andrea Grebenc” being written. However, Ms. Manney also observed a ballot where “Doug Ford” was crossed out, and “Natalie Pierre” was written on the ballot. In all noted cases, the ballots were rejected in the face of raised objection by the scrutineers.
[15] Ms. Manney testified that she personally witnessed the opening of all the mail-in special ballots contained in both boxes present at her assigned polling station on election night.
The Applicable Legislation:
[16] The relevant provisions of the Elections Act are as follows:
71 (1) For the purpose of determining the candidate who obtained the highest number of votes and within the four days, Sunday being excluded, following the official tabulation made by the returning officer, a judge may appoint a time and place to recount the votes cast at the election in the electoral district upon the application of a candidate or elector if it is made to appear by affidavit that,
(a) a deputy returning officer has improperly counted any ballot or improperly rejected any ballot or made an incorrect statement of the number of ballots cast for any candidate;
(b) the returning officer has improperly tabulated the votes; or
(c) subsection 67 (2) applies. R.S.O. 1990, c. E.6, s. 71 (1); 1998, c. 9, s. 38 (1).
67 (1) At the close of the official tabulation, or hearings in the case of missing envelopes or statements, the returning officer shall forthwith declare to be elected the candidate having the largest number of votes. R.S.O. 1990, c. E.6, s. 67 (1).
(2) If the difference between the number of votes cast for the candidate with the largest number of votes and the candidate with the next largest number is less than 25, the returning officer shall apply for a recount under section 71. 1998, c. 9, s. 37.
45.8 An elector who wishes to vote by means of a special ballot kit shall,
(a) write on the ballot the given name and surname, or initials and surname, of the candidate for whom the elector is voting, and the candidate’s political affiliation if two or more candidates have the same name;
(b) place the ballot in the inner envelope and seal the inner envelope;
(c) place the sealed inner envelope in the outer envelope and seal the outer envelope;
(d) complete and sign the declaration on the sealed outer envelope;
(e) place the sealed outer envelope in the mailing envelope; and
(f) mail or deliver the mailing envelope,
(i) to the returning office in the elector’s electoral district, in the case of an application under subsection 45.2 (5),
(ii) to the Chief Electoral Officer, in the case of an application under subsection 45.2 (6). 2010, c. 7, s. 28.
Grounding Legal Principles:
[17] In Sauve v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 at paragraph 1 (SCC), Chief Justice McLachlin observes, “The right of every citizen to vote, guaranteed by s. 3 of the Canadian Charter of Rights and Freedoms, lies at the heart of Canadian Democracy. Voters must have confidence in the final result. Specifically, that the democratic will is fairly and accurately reflected in the legislature, with the candidate garnering the highest number of votes being the one elected”: Jaswal v. Ontario (Chief Electoral Officer) at paragraphs 18 and 19.
[18] In order to be successful, the applicant must present evidence, which is sufficient to support a prima facie case that the outcome of the result may be different if a recount were to be ordered. It would be a futile exercise that ballots in any electoral district be recounted if the outcome would not change: Jaswal v. Ontario (Chief Electoral Officer) at paragraph 31.
[19] The court’s discretion, which has been inserted into the legislative framework, must be exercised “on judicial grounds” and “for good reason”: Rafferty v. Mauro, 2007 ONCJ 573 at paragraph 16 (OCJ). Justice Walker of the Saskatchewan Court of Appeal noted, “Common sense is the approach. Whether the matters raised by the applicant might affect the results of the election” is an important consideration. “Recount proceedings will not be ordered as a matter of course.”: Rafferty v. Mauro citing Goos v. Lampard, 1986 CarswellSask 156.
Position of the Parties:
[20] On behalf of Ms. Grebenc, Mr. Siegel stressed Ms. Manney’s observations with respect to the two ballots, which he argued were improperly rejected. Mr. Siegel took the position that the actions of the Deputy Returning Officer needed to be considered, keeping the wording outlined in s. 45.8 of the Elections Act front of mind. He argued it was clear on the evidentiary record that there were ballots, which had been improperly rejected. Mr. Siegel urged me not to place significant weight on the number of ballots he argued were improperly rejected. Even if one ballot was improperly rejected, counsel for Ms. Grebenc submitted a prima facie case had been established and a recount should be ordered.
[21] Alternatively, on behalf of Ms. Pierre, Mr. Mogil reminded me that I am not to order an official recount as a matter of course. He stressed that I must exercise my discretion judiciously and reasonably. Given Ms. Manney’s observation relative to the ballot for Ms. Pierre, which was similarly rejected, Mr. Mogil argued it was a single ballot, which was subject of this application. Consequently, counsel for Ms. Pierre took the position that there was no evidentiary basis for me to conclude ordering a recount would affect the result of the general election relative to the district of Burlington. Ms. Grebenc had failed to satisfy her onus, and her application should be dismissed.
[22] Mr. Lemke made submissions on behalf of Elections Ontario and again, stressed that an official recount was not to be ordered as a matter of course. Mr. Lemke argued that support for that proposition existed not only in the relevant caselaw, but in the legislative framework itself. Mr. Lemke drew my attention to the wording of s. 71(1) of the Elections Act, and argued parliament’s insertion of the word may, made its intention clear. He emphasized that there needs to be public confidence in the results produced by the electoral process, and reminded me that I am required to strike the appropriate balance in exercising my discretion.
Analysis:
[23] I very carefully considered the entire evidentiary record, which was placed before me. Certainly, when Ms. Manney’s observations were considered in light of s. 45.8 of the Elections Act, there was a basis to find two votes in favour of Ms. Grebenc were improperly rejected. However, that is not where my analysis concluded. Judicial oversight has been inserted into the legislative framework to ensure official recounts are not ordered as a matter of course. Plain reading of s. 71(1) of the Elections Act makes this clear, as does review of the relevant caselaw.
[24] On the evidentiary record before me, Ms. Manney was very certain that two ballots had been rejected where the name “Bonnie Crombie” had been crossed out, and the name Andrea Grebenc had been written. She also candidly testified that she observed a ballot where the name “Doug Ford” had been crossed out, and the name “Natalie Pierre” had been written. All three ballots were rejected in the face of objection by the scrutineers, which left a net difference of a single ballot. Ms. Manney confirmed that she was present for the opening of all the write-in special ballots at that polling station, which isolated any possible discrepancies to her personal observations.
[25] Appreciating the margin between these candidates was very close, only 39 votes, I was still left with a record that provided no basis to conclude that ordering an official recount would produce a different electoral result in the district of Burlington.
[26] With a view to applications of this nature, it is imperative that judicial discretion strikes the appropriate balance. Assessing whether a prima facie case has been established on any given record is an exercise that must be undertaken judiciously, and reasonably. In a democratic society, the public needs to have confidence that the electoral process produces fair and just results. That the candidate garnering the highest number of votes is the one elected. It is against this backdrop, that judicial discretion must be exercised, or there is a substantial risk that public confidence in the very cornerstone of our democracy will be eroded.
[27] The record before me revealed a net difference of a single vote. Notwithstanding, Ms. Grebenc was only required to establish a prima facie case to satisfy her onus, her application lacked the requisite evidentiary basis. Ordering an official recount on the record placed before me would serve no meaningful purpose. It would be a futile exercise, which could potentially erode the public’s confidence in the electoral process employed in the district of Burlington.
Conclusion:
[28] In the result, I found that the applicant had failed to establish a prima facie case in support of the requested order for a judicial recount of the votes cast in the electoral district of Burlington. Ms. Grebenc’s application was dismissed.
Released: March 11, 2025
Justice Jennifer Campitelli