ONTARIO COURT OF JUSTICE
DATE: 2025-03-17
Location: Brampton (Region of Peel)
BETWEEN:
Greg Essensa, Chief Electoral Officer of Ontario, Monica E. Kefentse, Returning Officer for the Electoral District of Mississauga–Erin Mills and Syed Taha Faisal, Election Clerk for the Electoral District of Mississauga–Erin Mills
— AND —
Michael Bayer, Qasir Dar, Adriane Franklin, Sajid Hussain, Michael Matulewicz, Mubashir Rizvi and Sheref Sabawy
Before Justice M.C.T. Lai
Heard in writing
Reasons for Judgment released on March 17, 2025
Counsel:
- James M. Ayres and Scott Lemke — counsel for the applicants
- Jack Siegel — counsel for Qasir Dar
- Eli Mogil, Hartley Lefton and Meaza Damte — counsel for Sheref Sabawy
- No one appearing for Michael Bayer, Adriane Franklin, Sajid Hussain, Michael Matulewicz and Mubashir Rizvi
A. OVERVIEW
[1] The applicants are the Chief Electoral Officer of Ontario, the Returning Officer for the Electoral District of Mississauga – Erin Mills (“the electoral district”), and the Election Clerk for the electoral district. They seek an Order, pursuant to sections 67, 69 and 71 of the Election Act, for a recount of the votes cast for Ontario’s 44th General Election in the electoral district on February 27, 2025, and related orders.
[2] The application was heard in writing. I received written submissions from counsel for two respondents, Sheref Sabawy and Qasir Dar. Mr. Sabawy and Mr. Dar were the two candidates in the electoral district who had obtained the greatest number of votes. At the end of the court day on March 5, 2025, I granted the application, with written reasons to follow. These are my reasons for ordering the recount.
B. PROCEDURAL HISTORY
[3] On January 29, 2025, the campaign for Ontario’s 44th General Election officially began. Election day was February 27, 2025.
[4] The unofficial election results for the electoral district were announced on February 27, 2025. The vote differential between Mr. Sabawy and Mr. Dar was 20 votes.
[5] The Returning Officer reviewed the statements of how many votes were cast for each candidate. She compiled the official tabulation of votes on March 1, 2025. The official tabulation confirmed that Mr. Sabawy received 16,665 votes and that Mr. Dar received 16,645 votes. Mr. Sabawy was declared to be elected in accordance with s. 67(1) of the Election Act.
[6] On March 3, 2025, the applicants notified the respondents and the court of their intention to bring this application. They filed the in-writing application on the afternoon of March 4, 2025. On the morning of March 5, 2025, the trial coordinator sent the below message to the parties at my direction:
Justice Lai confirms receipt of the Application Record. Her Honour directs as follows:
• The Applicants must provide a location where the proposed recount is to be held before Her Honour can decide the Application.
• Any Responding submissions must be served, and electronically filed (by e-mail to [e-mail address]), by 4:30 p.m. on March 5, 2025.
[7] The applicants filed written submissions, a revised Draft Order specifying the proposed location, and an Emergency Directive from the Chief Electoral Officer directing, pursuant to s. 3.7 of the Election Act, that the recount be held at the proposed location less than one kilometre from the boundary of the electoral district. Counsel for Mr. Dar and counsel for Mr. Sabawy filed responding submissions. Mr. Dar supported the application. Mr. Sabawy opposed it.
[8] Around 5 p.m. on March 5, 2025, I granted the relief sought, and the trial coordinator sent the below message and the signed Order to the parties at my direction:
Please take notice that the recount of the votes for the Electoral District will commence at 9:00 am on March 10, 2025, at Delta Hotels by Marriott Toronto Mississauga, 3670 Hurontario Street, Mississauga, Ontario L5B 1P3. Please see the attached Order. Her Honour will provide written reasons at a later date.
C. THE PRINCIPLES THAT GOVERN THIS APPLICATION
[9] Section 67(2) of the Election Act requires the returning officer to apply for a recount under section 71 where less than 25 votes separate the successful candidate and the runner-up:
Declaration of result
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.
Difference less than 25
(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.
[10] Section 71(1) sets out three grounds on which a recount may occur (emphasis added in underline):
Where recount may be had
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.
[11] All counsel submit that, even where subsection 67(2) applies, the judge has discretion whether to order a recount. I agree. The language in s. 71(1) is unambiguously permissive. [2] A permissive reading is also consistent with the policy considerations engaged by a prospective recount, including the competing interests of finality and reviewability – which may each carry different weight depending on the circumstances.
[12] Where 25 or more votes separate the successful candidate and the runner-up, a judge may only order a recount where the affidavit makes it appear [3] that one of the errors described in subsections 71(1)(a) or (b) occurred. No such evidence is required in this case because the affidavit makes it appear that less than 25 votes separate the successful candidate and the runner-up. The existence of subsection 71(1)(c) reflects a policy decision by the Legislature about the threshold vote differential that raises sufficient concern about potential error to warrant judicial consideration about whether a recount should be held, even if there is no prima facie case that one of the errors described in subsections 71(1)(a) or (b) occurred.
[13] That said, any evidence of error, the absence of evidence of error, or evidence of the absence of error, may properly inform the judge’s exercise of discretion whether to order a recount. Other relevant circumstances include, but are not limited to, the relative margin of victory, the cost and resources required to conduct the recount, and the likelihood that the recount would shift or change the result. [4]
D. A RECOUNT SHOULD BE ORDERED
[14] The court has a duty to prevent unnecessary recounts. [5] Counsel for the applicants submits that, to the best of their knowledge, no judge in Ontario has ever dismissed an application brought in similar circumstances. That may be true. But recounts are not ordered automatically, even where subsection 67(2) applies. The exercise of judicial discretion to order a recount should be informed by all the relevant factual circumstances, as well as by the fundamental importance of the right to vote, the public interest in finality and certainty in electoral outcomes, and the public interest in reviewability and confidence in electoral outcomes and processes.
[15] I have no doubt that the dedicated and hard-working staff in the electoral district performed their duties with the highest degree of competence and integrity. But any human process imports some risk of human error. The use of vote tabulators has not eliminated the involvement of human actors in counting ballots, rejecting ballots, stating the number of ballots, and tabulating the votes. And machines are not infallible. The official tabulation of vote totals, certified on March 1, 2025, reflects 37,651 accepted ballots. The 20 votes that separated the successful candidate and the runner-up represents about 0.05% of the accepted ballots – an extraordinarily slim relative margin of victory.
[16] Counsel for Mr. Sabawy submits, based on the results of previous recounts, that any recount in this case is unlikely to change the difference by 20 votes and, therefore, unlikely to change the result. There is not much data on this point available to me. Their prediction may be correct. But the stakes are high – not just for the candidates, but for the electorate and for public confidence in the electoral process. In all the circumstances, including the absence of evidence that any specific error occurred, and the cost and resources required for the proposed recount, I am satisfied that the proposed recount is necessary to assure the electorate that their democratic will has been accurately determined. [6]
E. CONCLUSION
[17] For these reasons, I granted the application and issued the Order in accordance with the draft provided by counsel for the applicants.
[18] The recount started on March 10, 2025 and completed shortly after midnight on March 11, 2025. It was a remarkable feat for Elections Ontario to organize and implement a recount of more than 37,500 ballots within the statutory timelines. I am indebted to counsel for the parties, who are subject-matter experts in this atypical area of provincial court practice, for their invaluable assistance and collegiality; to the scrutineers for their professionalism; and to the Elections Ontario staff for their unwavering commitment to ensuring an efficient, effective, and non-partisan process.
Released: March 17, 2025
Signed: Justice Mabel Cheuk Ting Lai
Footnotes
[1] Election Act, R.S.O. 1990, c. E.6, as amended.
[2] Racco v. Essensa, 2014 ONCJ 498, at paras. 43-45 (“Thornhill”).
[3] In other words, a prima facie case: Rafferty v. Mauro, 2007 ONCJ 573, at para. 14 (“Thunder Bay”); Thornhill, supra, at para. 39; Jaswal v. Ontario (Chief Electoral Officer), 2018 ONCJ 432, at para. 24 (“Brampton Centre”); Village of Swansea Election, 1963 ONCA 135, [1963] 2 O.R. 525 (C.A.).
[4] Thornhill, supra, at paras. 23 and 44; Brampton Centre, supra, at paras. 31-32; see also Bourgouin v. Essensa, unreported (7 March 2025), Kapuskasing (District of Cochrane), at para. 34.
[5] Brampton Centre, supra, at para. 32, explaining Goos v. Saskatchewan (Chief Electoral Officer), 1986 SKQB 3063, 53 Sask.R. 64 (Q.B.).
[6] Thornhill, supra, at para. 53.