CITATION: Cusimano v. Toronto (City), 2011 ONSC 7271

DIVISIONAL COURT FILE NO.: 260/11 & 259/11

DATE: 20111219

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, DAMBROT and SPROAT JJ.

B E T W E E N :

AGUSTINE G. CUSIMANO

Applicant

(Respondent)

– and –

CITY OF TORONTO and MARIA AUGIMERI

Respondents

(Appellants in Appeal)

--and –

GLORIA SACCON and CITY OF MISSISSAUGA

Interveners

AND BETWEEN:

MICHAEL SULLIVAN

Applicant

(Respondent)

-- and –

CITY OF TORONTO and STEPHANIE PAYNE

Respondents (Appellants)

-- and –

CITY OF MISSISSAUGA

Intervener

Lorne Honickman, Rory Barnable and Meredith Rady, for the Respondent

Dianne Dimmer, Susan Ungar and Tim Carre, for the Appellant City of Toronto

Julian D. Heller and Zaby Yaqeen, for the Appellant Augimeri

Caroline Jones and Jodi Martin, for the Intervener Saccon

Andrea Wilson-Peebles and Marcia Taggart, for the Intervener City of Mississauga

George Rust-D’Eye, for the Respondent

Dianne Dimmer, Susan Ungar and Tim Carre, for the Appellant City of Toronto

Julian D. Heller and Zaby Yaqeen, for the Appellant Payne

Andrea Wilson-Peebles and Marcia Taggart, for the Intervener City of Mississauga

HEARD at Toronto: September 19-20, 2011

DAMBROT J.:

[1] The City of Toronto held a municipal election on October 25, 2010. Maria Augimeri defeated Augustino Cusimano for the position of City Councillor in Ward 9 by 89 votes. Stephanie Payne defeated Michael Sullivan for the position of School Trustee for Ward 4 of Toronto District School Board (“Ward 4 TDSB”) by 56 votes. Cusimano and Sullivan brought applications pursuant to s. 83(1) of the Municipal Elections Act, 1996, S.O. 1996, c. 32 (“MEA”) for a determination of the validity of the election. They each sought a declaration that the election they lost was invalid by reason of irregularities in the procedure for adding persons to the voters’ list at polling stations.

[2] In reasons released on April 21, 2010 and reported at 2011 ONSC 2527, 82 M.P.L.R. (4th) 263, the application judge concluded that both elections were invalid and ordered that by-elections be held. The City of Toronto, Augimeri, and Payne appealed to this Court pursuant to s. 86(1) of the MEA. They are supported by the two interveners: the City of Mississauga and Gloria Saccon, one of the voters in Ward 9.

The Voting Scheme for the City of Toronto Municipal Election on October 25, 2010

[3] Municipal elections are governed by the MEA and conducted in accordance with its provisions. Pursuant to the Education Act, R.S.O. 1990, c. E.2, its regulations, and s. 3 of the MEA, TDSB trustee elections are conducted in the same manner. To understand the issues raised in this appeal, it is necessary to explore some of the provisions of the MEA in detail.

[4] Pursuant to s. 18 of the MEA, the clerk of a municipality may, on or before a date fixed by the Minister of Finance under the Assessment Act, R.S.O. 1990, c. A.31, divide the municipality into voting subdivisions and inform the Municipal Property Assessment Corporation (“MPAC”) of the boundaries. MPAC, in turn, is obliged by s. 19 of the MEA to prepare a preliminary voters’ list for each subdivision in the year of an election and provide it to the clerk. In addition, when an election is to be held, pursuant to s. 45(1), the clerk is obliged to establish the number and location of voting places for the election as he or she considers most convenient for the electors.

[5] For the 2010 City of Toronto election, the City was divided into 1,562 subdivisions, and the clerk established 1562 voting places, one in each subdivision, including 23 in Ward 9, and 57 in Ward 4 TDSB. In general, each voting place was staffed with a Managing Deputy Returning Officer (“MDRO”), who was responsible for the conduct of the election at that voting place, as many as eight Ballot Officers, a Vote Tabulation Officer, a Customer Service Officer, and in some cases an Accessibility Customer Service Officer. Smaller voting places were managed by a Deputy Returning Officer (“DRO”). In addition, there were six Supervisors who were each responsible for about four voting locations. They were responsible for ensuring that voting place staff followed the prescribed procedures and for resolving any issues that arose. All of these election officials were appointed by the clerk pursuant to s. 15(1) of the MEA.

[6] Section 17 of the MEA is concerned with the qualifications of electors. Section 17(2) provides that a person is entitled to be an elector in a local municipality if, on voting day, he or she:

• resides in, or is the owner or tenant, or the spouse of the owner or tenant of land in the local municipality;

• is a Canadian citizen;

• is at least 18 years old;

• and is not prohibited from voting under s. 17(3) – that is, is not an inmate or corporation, and does not fall within a few other prohibited categories of persons.

[7] It is important to distinguish between the qualification or entitlement to be an elector and the entitlement to vote. The distinction is clearly made in the MEA. The former, as I have just noted, is governed by s. 17. But in order to vote in a particular voting subdivision, a qualified voter must also be named on a voters’ list. Section 51(1) of the MEA provides that an elector whose name appears on the voters’ list for a particular voting place is entitled to vote there, subject to the voting rules in s. 51(2) and in accordance with the voting procedure in s. 52(1).

[8] The MEA also creates the procedure for the creation of the voters’ list. As I have already noted, once the clerk divides the municipality into voting subdivisions, he or she informs MPAC of the boundaries, and MPAC prepares a preliminary list divided into voting subdivisions pursuant to s. 19(1) and (2). The list for a voting subdivision must contain the names of resident electors who reside in that subdivision as well as the names of non-resident electors who, or whose spouses, own or are tenants of land in the subdivision (s. 19(5)). MPAC is obliged to deliver the preliminary list to the clerk (s. 19(1)) and to the secretary of each school board (s. 21(1)). After corrections of any obvious errors are made to the preliminary list (s. 22(1)), the list constitutes the voters’ list (s. 23(1)).

[9] This voters’ list is bound to be incomplete. Many eligible voters will be omitted for a variety of reasons: they may have recently moved into the voting subdivision; they may have recently turned 18; they may have recently become citizens; and many other reasons including, no doubt, inadvertent error. As a result, the MEA makes provision for correcting and updating the list.

[10] From the Tuesday after Labour Day until the close of voting on voting day, a person may make an application to the clerk, in writing, pursuant to s. 24(1) and (2), to have his or her name added or removed from the voters’ list or to have information on the list corrected.

[11] If the clerk is not satisfied that the applicant is entitled to have the requested change made, the clerk shall note the reason for the refusal on the application and return it to the applicant (s. 24(4)). If the clerk is satisfied that the applicant is entitled to have the requested change made, s. 24(3) provides that the clerk shall “endorse the application to indicate approval” (s. 24(3)(a)) and either “return the endorsed application to the applicant” or “notify the applicant that the application has been approved” and cause the voters’ list to be amended (s. 24(3)(b)). By virtue of s. 26, the clerk’s decision is final. If the amendment to the voters’ list adds the applicant’s name, the applicant is then entitled to vote in that voting place.

[12] Within ten days after nomination day (the second Friday in September by virtue of s. 31), the clerk must prepare an interim list of the changes approved under s. 24 and disseminate it (s. 27(1)). Prior to the election, the clerk must prepare and certify a voting list for use in each voting place (s. 28(1)). In preparing the list, pursuant to s. 28(2), the clerk determines which electors will appear on the list, removes the names listed for removal in the interim list of changes, and may make the changes to the list that were approved under s. 24.

[13] Despite the procedure for adding names to the voters’ list, it is inevitable that there will still be people who arrive at voting places with the intention of voting whose names are not on the voters’ list. If they are qualified, these people are entitled to vote. If such a person has applied to the clerk to be added to the voters’ list and the clerk returned the endorsed application to the applicant pursuant to s. 24(3)(b), the applicant may provide it to the appropriate DRO on election day, and the DRO, pursuant to s. 52(2), must then amend the voters’ list. The person is then entitled to vote.

[14] What about a person who has not yet made an application to be added to the voters’ list? As I have already noted, a person may apply to the clerk, pursuant to s. 24(1) and (2), to have their name added to the voters’ list until the close of voting on voting day. But how is this done on voting day? Needless to say, the clerk cannot be present at each voting place to consider each application. The MEA does not specifically address this eventuality. But it does provide a solution.

[15] First and foremost, s. 15(2) of the MEA permits the clerk to delegate any of the clerk’s powers and duties in relation to an election to a DRO or another election official. In addition, s. 12 authorizes a clerk who is responsible for conducting an election to provide for any matter or procedure that is necessary or desirable for conducting the election. Potential procedures include establishing forms and statutory declarations and requiring that persons furnish proof of identity or qualifications to vote before voting. In Toronto, when a hypothetical voter who is not on the voters’ list arrives at a voting place, he or she is accommodated by a combination of these powers that are placed in the hands of the clerk under s. 12 and s. 15.

[16] Specifically, in relation to the 2010 Toronto election, in order to assist voters who applied to be added to the voters’ list at voting places, the clerk established a form entitled the “Voters List Change Request Form (VLCRF) on Voting Day” (“VLCRF”), a copy of which appears at the end of these reasons. The clerk also established two policies that, in part, address this problem: the Identification Policy (“Identification Policy”) and the Procedure for Voting Place Management on Election Day (“Voting Procedure”).

[17] The Identification Policy requires that all electors who attend at a voting place produce specific identification verifying their name, qualifying address and signature in order to vote. The Voting Procedure includes two voting processes for electors whose names are not on the voters’ list, one for small voting places, and a second for large voting places. In small voting places, a designated election official first confirms that the elector is in the correct ward and then gives the elector a VLCRF to complete. The official then reviews the form and, if satisfied of the elector’s eligibility, adds the elector’s name to the voters’ list and places the VLCRF form and its duplicate in the appropriate envelopes. Once the elector has been added to the list, the DRO or the Ballot Officer proceeds as he or she would with any other elector. The procedure in a large voting place is very similar. The pertinent difference is that the elector returns the completed VLCRF to a Ballot Officer, who reviews the form, adds the elector’s name to the list, places the original and duplicate VLCRF in the appropriate envelopes, and carries out the remainder of the ordinary voting process for large voting places.

[18] At the top of the VLCRF, the voter is instructed to complete sections 1 to 3 and present the form with identification showing name, address and signature.

[19] These three sections of the VLCRF are:

(1)Change Requested – where a voter can place a tick in a box next to the words, “Add my name to the list”;

(2)Voter Information – where a voter fills in his or her name, date of birth, address, mailing address and previous address, and ticks boxes indicating occupancy (owner, tenant, spouse of an owner or tenant, or other), residency (resident, non-resident of residential community, or non-resident of commercial or industrial property), and school support (public school, Catholic school, French language public school or French language Catholic school); and

(3)Declaration of Voter – where the voter must sign and date a declaration that he or she is “a Canadian citizen, at least 18 years old on voting day, and entitled to be an elector” and must also declare that “the information provided above is true and accurate” and that he or she requests to have the voters’ list changed according to the information provided.

[20] At the bottom of the form is a grayed area for the use of an election official. Instructions within the grayed area direct the official to ensure that the form contains complete information, to write “cancelled” on the form if completed in error, to tick a box to show that “ID” was checked, and to place the form in the appropriate envelopes. There is also a box within the grayed area for the election official to place his or her signature. It is apparent that the VLCRF contemplates that the clerk’s requisite “endorsement” under s. 24(3)(b) be effected by the election official affixing his or her signature in the gray box.

The Conduct of the City of Toronto Municipal Election on October 25, 2010

[21] In addition to the City’s permanent election staff, the City hired an additional 11,262 persons to work on the 2010 election. I note that the same staff, voting locations and ballots were used for the TDSB trustee election as were used for the municipal election. All election staff underwent mandatory training and received election manuals, access to on-line training tools and laminated Ballot Issuing Placemats, all in an effort to ensure that they knew the policies and the voting procedures to be followed on election day and understood the importance of acting with integrity, maintaining secrecy and following policies and procedures. I note, however, that the Identification Policy, Voting Procedure, election manual and Ballot Issuing Placemat are all silent about the need to affix a signature in the gray box at the bottom of the VLCRF.

[22] There is uncontradicted evidence in the record that the returning officers and ballot officers were competent and hardworking and closely followed the voting day procedures, including the procedures for dealing with voters whose names were not on the voters’ list. But despite all of the City’s efforts and all of the efforts of the election staff, it was inevitable that irregularities would still occur, as they do in every election.

[23] As it turned out, on voting day, a number of VLCRFs were completed at voting places in Ward 9 and Ward 4 TDSB, which were not signed by an election official. Of the total of more than 1100 VLCRFs submitted in Ward 9, 374 were not signed by an election official. There were 224 VLCRFs that were not signed by an election official in Ward 4 TDSB.

[24] But those numbers are misleading. The 374 unsigned forms in Ward 9 include forms used to add names to the voters’ list, to remove names from the voters’ list and to correct information on the list. Only 286 of them, according to Ms. Saccon, who reviewed all the VLCRFs, were used to add names to the list. And importantly, on only 11 of these VLCRFs did the voter fail to sign the declaration. We do not have similar information about the number of VLCRFs that were used to add names to the list in Ward 4 TDSB, as opposed to being used to remove names or correct information. We do know that there were only 8 VLCRFs in total that were missing voter declarations in Ward 4 TDSB.

The Applications for a Determination of the Validity of the Election

[25] As I have noted, Cusimano and Sullivan brought applications pursuant to s. 83(1) of the MEA for a determination of the validity of the election. They each sought a declaration that the election they lost was invalid by reason of irregularities in the procedure for adding persons to the voters’ list at polling stations, and they asked the court to order that a by-election be held.

[26] The MEA provides no direct guidance about when a court should determine an election to be invalid. Instead, s. 83(6) provides that a court shall not determine an election to be invalid if:

(a) an irregularity described in subsection (7) occurred at the election but did not affect the result of the election; and

(b) the election was conducted in accordance with the principles of this Act.

[27] The irregularities described in s. 83(7) are:

1. An irregularity on the part of the clerk or in any of the procedures before voting day.

2. Failure to have a voting place open at the appointed location and time.

3. Non-compliance with a provision of this Act or of a regulation, by-law, resolution or procedure made, passed or established under this Act, dealing with voting, counting of votes or time requirements.

4. A mistake in the use of forms, whether prescribed or not.

[28] While there were other irregularities pointed to by the applicants, the most significant of these, and the one that occupied the time of the Court on both the application and the appeal, was that persons were added to the voters’ list and voted, when neither the clerk nor any of her delegates had signed the VLCRF. The applicants argued that as a result of the failure of any election official to comply with the statutory requirement to endorse the VLCRF, the people added to the voters' list were not entitled to vote and permitting them to do so was contrary to the principles of the MEA. The number of people added without an election official signing the VLCRF exceeded the margin of votes by which Cusimano and Sullivan lost their elections and therefore, they argued, affected the result of the election.

[29] The respondents argued that the requirement in section 24 of the MEA that the clerk "endorse" the application, properly interpreted, does not require an election official to sign the VLCRF. They argue that the persons at issue would not have been added to the voters' list and given ballots if the election officials had not been satisfied that they were entitled to vote, that the failure of any election official to sign the VLCRFs in issue was an insignificant procedural irregularity in the course of a very busy municipal election with record turnout and did not affect the result of the election, and that the elections were conducted in accordance with the principles of the MEA.

The Reasons of the Application Judge

[30] The application judge recognized that irregularities occur in every election and that when people have exercised their right to vote, their votes should not be discounted without good reason, but was “not satisfied that irregularities did not affect the outcome of the election,” and so, declared both elections invalid and ordered by-elections.

[31] The application judge concluded that interpreted in the context of s. 24(3), which provides that the clerk shall “endorse the application to indicate approval,” and having regard to s. 52(2) and the form itself, the word “endorse” means “sign.” As a result, she found that the failure of an election official to sign a VLCRF breached the MEA.

[32] The application judge then concluded, taking guidance from the judgment of this Court in O'Brien v. Hamel (1990), 73 O.R. (2d) 88, that because the number of votes at issue exceeds the margin of votes by which the elections at issue were won, the failure of an election official to sign the VLCRFs affected the result of the election, and the elections of Augimeri and Payne were therefore invalid.

[33] In coming to this conclusion, the application judge did not decide who had the onus of demonstrating whether or not the irregularity affected the result because, in her view, it was not a material issue. Based on O'Brien v. Hamel, she concluded that if the onus was on the applicants, it was satisfied.

[34] The application judge also considered whether the outcome of the elections could be saved on the basis of a presumption of regularity: whether it can be presumed that only people entitled to vote would have received a ballot, and so, the failure by election officials to sign all VLCRFs was procedural and trivial and did not affect the result of the election. Such a presumption, if it were to prevail, would be premised on the following factors:

• s. 52(1) of the MEA, which provides that a DRO at a voting place shall give a person a ballot only if satisfied that the person is entitled to vote there;

• the evidence of the training given to election officials, of their taking an oath of office, and of the availability to them of reference materials; and

• the evidence of some of the ballot officers that they might have forgotten to sign some VLCRFs, but it would have been due to inadvertence, and they were confident that only persons that were entitled to vote received ballots.

[35] The application judge decided that such a presumption was not available in light of evidence that one person was able to take advantage of a lack of coordination between election officials using voters’ lists at one Ward 9 polling station to vote twice. In any event, she concluded that only compliance with the statute, not the quality of the methods used by election officials, could ensure the integrity of the system and save the votes.

[36] Finally, although it was not necessary for the application judge to consider whether or not the election was conducted in accordance with the principles of the MEA, she did comment on the issue briefly. As I read the judgment, however, she did not reach a conclusion on the issue.

[37] I emphasize that the only irregularity analyzed by the application judge, and the only irregularity upon which she based her decision, was the failure of election officials to sign all of the VLCRFs. On this appeal, the respondents relied on no other irregularity to support the decision of the application judge. As a result, we restrict our analysis to that issue.

Preliminary Matters Raised on this Appeal

[38] At the outset of the argument of this appeal, we were called upon to determine three preliminary issues:

• whether or not we would permit Augimeri to raise a constitutional issue that had not been considered by the application judge;

• whether or not certain new affidavits filed by Augimeri were admissible on this appeal;

• and whether or not we should give effect to an argument raised by Augimeri that Cusimano did not have standing to bring his application to have the election of Augimeri set aside.

We dealt with the first two of these issues at the outset of the argument, reserving our right to further explain our rulings in this judgment. We reserved on the third issue.

[39] It is important to understand how these issues arose. Augimeri was not a party to the original application brought by Cusimano. In his Notice of Application, Cusimano referred to Augimeri as the respondent. Despite this, his counsel made a decision to exclude Augimeri as a party. The City was served; Augimeri was not. However, Augimeri was added as a party on this appeal by Lederman J., who was of the view that the MEA contemplates that the successful candidate be a party (see Cusimano v. Toronto (City), [2011] O.J. No. 3727, 2011 ONSC 4768).

[40] Of course, Augimeri was aware of the original application and could have insisted on her right to be a party. But upon being satisfied by her explanation for not doing so, Lederman J. concluded that it was appropriate to add her as a party to this appeal. Augimeri swore that she had received comforting advice from the City's legal staff that she did not have to take any steps to protect her interests. She was told that the application has "nothing to do with you" and that the City would be defending the application. With that assurance and the short time span available for Augimeri to retain and have her own solicitor prepare for the hearing, it is understandable that she did not seek to become involved personally as a party. She decided to ask to be added as a party on this appeal because the City made an initial decision not to appeal the decision of the application judge, and subsequently changed its mind. Augimeri sought to protect her interest as the winning candidate in the election. Because Augimeri was not a party at the original application, she obviously could not have raised a constitutional challenge, filed evidence or challenged the standing of Cusimano before the application judge.

[41] I turn first to the constitutional challenge. Augimeri wanted to advance an argument that the requirement that a person who is not on the voters’ list complete a VLCRF in order to vote violates sections 2(b) and 15 of the Canadian Charter of Rights and Freedoms. Despite the fact that Augimeri could not have raised her challenge before the application judge, we refused to hear it (see our preliminary reasons at [2011] O.J. No. 4691, 2011 ONSC 5570). In his judgment adding Agumeri as a party, Lederman directed that his order was not intended to unduly widen the focus or nature of this appeal. We were satisfied that the record as it stood was woefully inadequate to support the challenge, and that hearing the challenge would necessarily violate the direction of Lederman J. and significantly widen the focus of this appeal.

[42] With respect to Augimeri’s affidavit material, we admitted some of it, bearing in mind:

• that she could have filed it before the application judge had she been a party;

• that the statutory scheme contemplates that the application should be determined in a summary manner, without application records or facta (s. 83(3)); and

• that the scheme also contemplates that it may prove necessary to consider additional evidence subsequent to the initial application, albeit in a new hearing (s. 86(2)).

But we declined to admit that part of her material relating to efforts made on her behalf to determine the eligibility of voters by canvassing them and having them sign forms (see our preliminary reasons at [2011] O.J. No. 4692). We did not fully explain our thinking at that time. I will say more about it now.

[43] The evidence in question is hearsay, and so, raises concerns about necessity and reliability. In this case, we had serious concerns about reliability. Although nothing in the questioning that was carried out violated the secrecy of the ballot, it cannot be denied that the questioning of citizens about their voting is a sensitive matter, is bound to raise concerns, and must be handled with great delicacy. If it was to be done at all, it should have been done by the City, or by some obviously disinterested, professional third party. Instead it was done by partisans. Some people refused to cooperate, no doubt for this very reason. Others may have provided answers that were influenced one way or the other by the partisanship of the interrogators. As a result, we found the evidence to be unreliable and inadmissible.

[44] The final matter concerned Cusimano’s standing to bring this application. Augimeri placed evidence before us that shows that there is good reason to believe that Cusimano was not qualified to vote in Ward 9. Section 83(1) permits an application to be brought challenging the validity of an election only by a person entitled to vote in that election. If Cusimano was not entitled to vote in Ward 9, he was not entitled to challenge the validity of the election in Ward 9.

[45] Despite what I have just said, we would not give effect to this argument. Even if Cusimano did not have standing to bring the application, it was heard and determined. What is more, the application judge found that there was merit to Cusimano’s position and that the election was invalid. In those circumstances, it would be contrary to the public interest to set aside the decision of the application judge on this technical basis, rather than to determine whether or not the election was valid on the merits.

Analysis of the Merits of the Appeal

[46] I begin by drawing attention to matters of fact found in the record that may not have been brought to the attention of the application judge, and in any event, that are not mentioned in her reasons. I have already mentioned these circumstances, but they bear repeating. I have in mind the following.

[47] Section 12(1) of the MEA authorizes the clerk to provide for any matter or procedure that is not otherwise provided for in an Act or regulation that, in the clerk’s opinion, is necessary or desirable for conducting the election. Section 12(2) provides that the power conferred by s. 12(1) includes power to establish forms, including forms of oaths and statutory declarations, and the power to require their use. Pursuant to s. 12(2), in order to assist voters who applied to be added to the voters’ list at voting places in the 2010 Toronto election, the clerk established the VLCRF. That form required a voter to provide certain information pertinent to the entitlement to vote, and then to make a declaration that he or she is “a Canadian citizen, at least 18 years old on voting day, and entitled to be an elector” and that “the information provided above is true and accurate” and that he or she requests to have the voters’ list changed according to the information provided. In Ward 9, in all but 11 VLCRFs that were used to add names to the voters, the voter who completed the form made the required declaration. In Ward 4 TDSB, in all but 12 VLCRFs in total, whether or not they were used to add names to the voters’ list the voter who completed the form made the required declaration. To be clear, the application judge was aware of s. 12(1) of the MEA and the power to establish forms. She was aware that the VLCRF was one such form. But whether or not she was aware of it, she gave no consideration to the requirement that voters make a declaration of their entitlement to vote or the fact that in all but a small number of cases, the declaration was made.

[48] I turn first to the standard of review on this appeal and then to the issues.

What is the standard of review?

[49] Section 86(1) and (2) of the MEA provide:

(1) An order made under subsection 83 (1) may be appealed to the Divisional Court.

(2) The Divisional Court may make an order under subsection 83 (1) or, if it is necessary to take evidence, may order a new hearing.

[50] There can be little doubt about the standard of review on an appeal from a decision of a judge such as the one provided by s. 86. It was delineated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 and repeated in many subsequent cases. This standard was neatly summarized by Harvison Young J. in the judgment of this Court in Fulawka v. Bank of Nova Scotia, [2011] O.J. No. 2561, 2011 ONSC 530. She stated, at para. 17:

The law is clear that, on an appeal from a judge's decision, the applicable standard of review is one of correctness with respect to issues of law or legal principle: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review for findings of fact is that such findings cannot be reversed unless there is a palpable and overriding error: Housen, at para. 10. Questions of mixed fact and law are on a spectrum. If a legal question can be separated out, it will be reviewed for correctness, but otherwise, questions of mixed fact and law will not be overturned absent palpable and overriding error: Housen, at paras. 36-37.

[51] That standard applies here.

Were the unsigned VLCRFs endorsed?

[52] As I have noted, s. 24(3) of the MEA requires the clerk, or the clerk’s delegate, if satisfied that a person who has made a written application to have their name added to the voters’ list is “entitled to have the requested change made,” to:

(a) endorse the application to indicate approval; and

(b) return the endorsed application to the applicant or notify the applicant that the application has been approved and the voters' list will be changed to reflect the approved application.

[53] The respondents argue that the word “endorse,” as it is used in s. 24(3), means “sign.” The appellants argue that an application to be added to the list is endorsed, whether or not it is signed, when the election official approves the application, adds an elector’s name to the list and issues a ballot to the elector. If the appellants are correct on this issue, there would be no irregularity, and their appeals would succeed. However the application judge did not accept this argument and neither do we.

[54] The appellants’ position conflates the election official’s approval of the application, a mental determination, with the act of endorsing the application, a physical act applied to the application form itself and evidencing approval. While endorsement could be accomplished not only by signing the application, but also by initialing it or affixing a stamp to it, some physical act applied to the form is required. No doubt adding an elector’s name to the list pursuant to s. 52(2) of the MEA and the City’s Voting Procedure and issuing a ballot to the elector pursuant to s. 52(1) of the MEA are each strong evidence that the application was accepted, but they do not amount to endorsement.

[55] It is true that s. 52(2) requires a DRO to amend the voters’ list when he or she receives an “approved” application, and not an “endorsed” application, but this does not override the plain meaning of s. 24(3). The MEA contemplates that the approval of an application will be evidenced by the endorsement appearing on it.

[56] We turn next to the question whether adding voters to the voters’ lists whose VLCRFs were not endorsed and permitting them to vote is an irregularity within the meaning of s. 83(7) of the MEA.

Is the failure to endorse a VLCRF an irregularity?

[57] Before we can consider whether or not the saving provision in s. 83(6) applies, we must first determine whether or not adding voters to the voters’ lists whose VLCRF’s were not endorsed and permitting them to vote is an irregularity within the meaning of s. 83(7) of the MEA. This question is of importance, because the saving provision is only available in the case of the irregularities specified in s. 83(7). The irregularities described in s. 83(7) are:

1. An irregularity on the part of the clerk or in any of the procedures before voting day.

2. Failure to have a voting place open at the appointed location and time.

3. Non-compliance with a provision of this Act or of a regulation, by-law, resolution or procedure made, passed or established under this Act, dealing with voting, counting of votes or time requirements.

4. A mistake in the use of forms, whether prescribed or not.

[58] Counsel for Sullivan argued that adding these voters to the voters’ lists and permitting them to vote is a “substantive omission of a positive requirement” of the MEA, not an irregularity. As a result, it is not open to a reviewing court to consider the availability of the saving provision in s. 83(7). I do not agree. It is true that the word “irregularity” is often used to mean a failure to strictly adhere to the requirements of the law, as opposed to acting without authority. But it is clear that the legislature had something else in mind in enacting s. 83(7), which is very broad in its sweep. It includes, on its face, any non-compliance with the Act or regulations when dealing with voting.

[59] What is more, there is no policy reason to read s. 83(7) narrowly, since no irregularity can be excused if it affects the outcome of an election or violates the fundamental principles of the MEA. Rather, there is good reason to cast the net of irregularities broadly. If, for example, that net did not encompass the situation under consideration here, then logically, a single addition to the voters’ list of a person whose VLCRF was not endorsed would vitiate an election. Counsel for Payne did not go this far. But surely such an error could only be overlooked if the court either invoked the saving provision or invented a new one that effectively operated in the same way.

[60] As a result, we conclude that the failure to endorse a number of VLCRFs in Ward 9 and Ward 4 TDSB amounts to an irregularity in each case. It is non-compliance with a provision of the MEA, non-compliance with a procedure made, passed, or established under the MEA, dealing with voting, and a mistake in the use of forms. We turn next to the argument about the availability of the saving provision in s. 83(6) of the MEA.

Were the elections in Ward 9 and Ward 4 TDSB valid despite these irregularities?

[61] As I have noted, s. 83(6) of the MEA provides that a court shall not determine an election to be invalid if:

(a) an irregularity described in subsection (7) occurred at the election but did not affect the result of the election; and

(b) the election was conducted in accordance with the principles of this Act.

[62] As can be seen, s. 83(6) is a very broad saving provision. As I have already noted, it provides a sweeping definition of “irregularity,” while narrowly circumscribing the circumstances in which an irregularity will be fatal to an election. It is a recognition that irregularities are inevitable in an election and an affirmation that the democratically expressed will of the electorate should not lightly be overturned. An election will only be set aside where the irregularity either violates a fundamental democratic principle or calls into question whether the tabulated vote actually reflects the will of the electorate.

[63] Similar remedial provisions appear in most if not all Canadian election statutes. The purpose of these provisions has been stated many times. For example, in Camsell v. Rabesca (1987), 1987 8600 (NWT SC), 4 A.C.W.S. (3d) 272 (N.W.T.S.C.), Marshall J. stated, at p. 198:

A number of the cases I have cited have made the valid point that elections should not be too easily overturned and the people put through another election. There should be a sound reason for doing that.

[64] Similarly, in Raeburn v. Lorje (2000), 95 A.C.W.S. (3d) 655 (Sask. Q.B.), Hunter J. stated at para. 48:

The will of the electorate as expressed by their votes in the election is not to be lightly interfered with.

[65] Remedial provisions such as s. 83(6) must be given full effect, having regard to their lofty purpose.

[66] The respondents minimize the significance of setting aside an election on the basis that all qualified voters will be entitled to vote in a by-election. In my view, this misses the point. The qualified voters were entitled to vote on election day and have their votes count on that day. A by-election is an inexact substitute. Gloria Saccon, who, as I have already mentioned, was one of the voters in Ward 9 whose vote was discounted by the judgment of the application judge, put it well in an affidavit filed on this motion. She said, “In my view, an election is a snapshot in time. It cannot be redone and should not be done over without a good reason.” I agree.

[67] A by-election is an entirely different election from the one it replaces. The candidates may be different. The issues may be different. The level of media attention may be different. The turnout may be different. And the electorate will be different: some voters will have died; some will have moved out of the ward and be entirely disenfranchised; some will have moved into the ward and may have already voted in another ward on October 25, 2010.

[68] I do not intend to belittle the value of a by-election as a remedy when there are irregularities in an election that violate the principles of the MEA or affect the results of an election. I simply say that a by-election is second best and cannot serve to lessen the significance of setting aside an election or the caution that must be exercised before doing so.

[69] Before the irregularities in this case can be excused, we must consider whether or not the prerequisites of s. 83(6) have been met. But before turning to those issues, I will begin by considering the onus of proof.

Who bears the onus of proof?

[70] There can be no doubt that the onus is on an applicant to establish that there has been an irregularity. But there is a dispute amongst the parties about where the onus lies to show whether or not the irregularity affected the result. The application judge did not decide this issue. She stated:

54 The respondents rely on, among other cases, Abrahamson v. Baker and Smishek (1964), 1964 380 (SK CA), 48 D.L.R. (2d) 725 (Sask. C.A.); Flookes v. Shrake; Camsell v. Rabesca, 1987 8600 (NWT SC), [1987] N.W.T.R. 186 (S.C.); and Beamish v. Miltenberger, 1997 2910 (NWT SC), [1997] N.W.T.J. No. 19 (S.C.) to argue that the applicants have the onus of demonstrating that the irregularity affected the result of the election. They say that it would be unreasonable and unfair to require the City to positively prove that each voter on each VLCRF had the right to vote.

55 The applicants rely on Stoddart v. Owen Sound (Town), supra, Rose v. Cranbrook (City), [1982] B.C.J. No. 1600 (S.C.) (a decision of McLachlin J.) and Warrington v. Lunenburg (Municipality), [2006] N.S.J. No. 256 (C.A.) to say the respondents must demonstrate that the irregularity did not affect the outcome of the election.

56 It is unclear from the jurisprudence who, in Ontario, has the onus of demonstrating that the irregularity affected the result of the election.

57 Ultimately, on the facts of this case, who has the onus was not a material issue. Based on O'Brien v. Hamel, the onus, if on the applicants, has been satisfied.

58 Some of the cases on onus distinguish whether the test is phrased "affected the result of the election" or employs the negative"did not affect the result of the election." I note that both section 83 of the Canada Elections Act considered in O'Brien v. Hamel and section 83 of the MEA phrase the test as whether the non-compliance "did not affect the result of the election".

[71] It may well be that the application judge was correct in saying that this case does not turn on the question of onus. All the same, it should be noted that there is Ontario authority on the issue of who bears the onus of showing that an irregularity did or did not affect the result of an election in addition to Stoddart v. Owen Sound (Town) (1912), 1912 386 (ON SC), 8 D.L.R. 932 (H.C.J.). As Eberhardt J. correctly put it in Thwaites v. Georgian Bay (Township), [2001] O.J. No. 2847 (S.C.J.), at para. 24:

The onus is on the applicant to establish an irregularity. Those attempting to uphold the election have the onus of showing that the election was conducted in accordance with the Act. There is dispute about where the onus lies to show that the irregularity effected [sic] the result.

[72] That said, there is authority in Ontario in some of the cases decided before 1912 and in most of the cases decided after 1922 that points to an applicant having the onus of demonstrating that any irregularity that may exist affected the result of an election. (See, for example, Re Sinclair v. Owen Sound (1906), 12 OLR 488 (Div. Ct.) at para 41-43, 47, aff’d (1906), 13 O.L.R. 447 (C.A.) and (1907), 1907 10 (SCC), 39 S.C.R. 236; Rex ex rel. Fennessy v. Wade and Plaunt, 1939 54 (ON SC), [1939] O.R. 537 (Ont. H.C.J.) at p.4; and Thwaites v. Georgian Bay (Township), [2001] O.J. No. 2847 (S.C.J.) at para 27.)

[73] In the absence of binding authority, I find the reasoning of Marshall J. in Camsell v. Rabesca persuasive. After considering the history of provisions such as s. 83 and reviewing the caselaw extensively, he stated, at pp. 198-199:

I turn again to the question of onus or burden of proof. The confusion in the cases, it seems to me, arises from the interpretation of the early statutes in which showing that the irregularity was innocuous was treated as a proviso. So the cases cast a burden on the petitioners to show an irregularity, and the cases held that this in itself would give rise to the petitioner's right. Showing that the irregularity did not offset the result, it seems, was treated as a special fact, and the burden for this was placed on the party seeking to uphold the election. Later statutes and some of the cases recognized this, but others, especially those that followed the strong precedent in the Hickey case did not.

The problem with that allocation of onus, aside from the fact that it does not accord with the general rule as to onus, nor with the English and some of the Canadian authorities that I have cited, is that it will not lead to a proper result, I think, in some of the cases. As I have said, most elections will give rise to irregularities in the taking of the vote. In many instances of irregularities there may be no evidence on the issue, other than that the irregularity occurred. If the rule in the [sic] Hickey were the law, such election would have had to be declared invalid, that is, if there was no evidence on the question of whether the result might have been affected by the irregularity or not, or indeed if the evidence on the point were in balance. That, as this case shows, I think, will not uncommonly be the case.

On the other view, that is, following the decision in the Morgan case and the other cases I cited, taking the view that the onus throughout is on the petitioners, the petitioners are asserting and should be required to prove not only that there were irregularities, but that these irregularities might have affected the result. It should not be just a part of but the entire factual situation that must be shown, to give rise to the right in the petitioners, See Vines v. Djordjevitch (1955), 91 C.L.R. 512.

The standard of proof is not a heavy one, that is, to show that, on a balance of probabilities, the result might have been different, See Morgan, supra, and Storey v. Zazelenchuk (1984), 34 Sask. R. 103 (C.A.).

This view as to onus, it seems to me, as well comports with the general rule regarding the legal or persuasive burden of proof. The general rule is that he who asserts must prove, See Woolmington v. D.P.P., [1935] A.C. 462, and [1935] All E.R. 1 (H.L.). The reasons [sic] for the rule is grounded in plain common sense, that is: that he who would call another to account in the courts, with all the trouble and expense that that entails, should be able to make out a case. The rule discourages harassment in the courts and the improper use of the legal process by enemies, adversaries, busybodies, and others.

[74] As a result, I am satisfied that the applicant bore the burden to show, on a balance of probabilities, that any irregularity found to exist affected the result of the election. However, like the application judge, I am satisfied that the question of onus is not determinative of this appeal.

Did the irregularities affect the results of the elections in Ward 9 and Ward 4 TDSB?

[75] This brings us to the real issue: did the irregularities affect the results of the elections in Ward 9 and Ward 4 TDSB? Counsel for the City invited the application judge to apply a presumption of regularity as a step in the judge’s reasoning. They pointed to evidence led by the City from some of the returning officers to the effect that the ballot officers whom they supervised were competent and hard-working, followed the procedures on the reference sheet each was provided with, and went to the returning officers for assistance or guidance if they had any questions with respect to procedures. As a result, these returning officers were confident that only those entitled to vote received ballots. Based on this evidence and on section 52(1) of the MEA, which provides that a DRO shall give a person who requests a ballot only if satisfied that the person is entitled to vote there, the City argued that only persons entitled to vote would have received ballots. As a result, it submitted that the failure of an election official to sign the VLCRFs was procedural and trivial, and the irregularity did not affect the result of the election.

[76] The application judge declined this invitation. Instead, she took a very simple approach to the issue. She reasoned that because the number of votes at issue exceeded the margin of votes by which the elections at issue were won, the failure of election officials to sign some of the VLCRFs affected the result of the election, and the elections of Augimeri and Payne were therefore both invalid.

[77] I have reached the conclusion that the application judge erred in law in approaching the matter in this way, for three reasons, each of which reveals an error in law.

[78] First, I have difficulty with her refusal to apply a “presumption” that only people entitled to vote would have received a ballot. Her refusal to apply such a presumption was based solely on one item of evidence: that one person received a ballot in two polling stations. She stated, at para. 64:

While in this case, as in O'Brien v. Hamel, the clerk carried out her duties diligently and tried to ensure that the principles of the MEA were properly followed, there was documented evidence of one person taking advantage of the lack of coordination between election officers when using voters' lists at the Ward 9 polling station to vote twice to demonstrate the problems with the manner in which the election was run. At least one person not entitled to vote (again) received a ballot. Any general presumption of regularity is therefore inappropriate.

[79] This approach reverses the onus of proof with respect to the existence of irregularities. The onus of establishing an irregularity is unquestionably on an applicant. In this case, the applicants each established that a number of VLCRFs were not endorsed. I agree with the application judge that this was an irregularity. Without doubt, the fact that one person in Ward 9 voted at two different voting places was also an irregularity. But if these two irregularities, without more, were to shift the onus to the City to demonstrate that every other aspect of the voting procedure was regular, the scheme in s. 83 would be unworkable. The general regularity of the election must be presumed in the absence of evidence to the contrary.

[80] But that is in effect what the application judge declined to presume. Without any evidentiary foundation, she declined to presume that election officials only gave ballots to qualified persons. Giving ballots to unqualified persons would be a different and much more serious irregularity than anything established in the record before us. Evidence that one person in all of Ward 9 received a ballot at two different voting places is proof of one small irregularity. I note that this person may have been eligible to vote at either of the two voting places, but obviously not at both. But this incident provides no evidence that other unqualified persons were also given ballots. The onus was not on the City to prove that only qualified voters were given ballots. That turns s. 83(6) on its head and ignores its purpose: elections should not be too easily overturned. An application to set aside an election must be approached on the basis that it is assumed that the MEA was not violated except insofar as the contrary is established. This wrong allocation of the onus of proof is an error in law. And if it is not an error in law, then inferring from this one incident that there were “problems with the manner in which the election was run” is a palpable and overriding error.

[81] Second, and regardless of the availability of any presumption, I am of the view that the application judge was obliged to do more than simply apply an arithmetic formula to decide whether or not the irregularities affected the results of the election. She was obliged, instead, to undertake an examination of the evidence before her in an effort to see whether or not she could ascertain the true effect of the irregularities. Only if she was unable to decide the issue after that effort, should she have applied that arithmetic formula.

[82] The application judge relied on the decision of this court in O’Brien v. Hamel (1990), 73 O.R. (2d) 88 in simply applying an arithmetic formula. It is quite true that in that case, the court applied an arithmetic formula, saying, at p. 98, “The courts have consistently held that if the number of irregular votes exceeds the plurality of votes cast, the election cannot stand.”

[83] But the courts reference to “irregular votes” must be examined carefully and in context. Immediately after the quoted words, in support of this principle, the court referred to Blanchard v. Cole, 1950 276 (NS CA), [1950] 4 D.L.R. 316 (N.S.C.A.) as a “leading case,” and quoted the pertinent language from it. That case dealt with a federal election. The court there said:

It would appear reasonable to hold that once the Court comes to the conclusion that votes were cast by a number equal to or greater than the majority claimed, by persons who had no right to cast them … to declare the election void. [Emphasis added.]

[84] It is plain that when the Court used the term “irregular votes,” it had in mind votes by persons who were not entitled to vote. Certainly, the votes cast fit that description. They fell into several categories, but as will be seen, none, or virtually none of the voters in question were entitled to vote.

[85] In O’Brien v. Hamel, pursuant to the Canada Elections Act, S.C. 2000, c. 9 (“CEA”), some voters in the riding in question voted at rural polls, while others voted at urban polls. None were on the voters’ list. In the case of the rural polls, voters not on the list were entitled to vote if they were vouched for by an elector on the list in the polling division, but the person vouched for was not added to the list. In the case of urban polls, voters not on the list were entitled to vote if they obtained the requisite certificate and were added to the voters’ list.

[86] In respect of the rural voters whose votes were impugned, 62 of them were vouched for by persons not entitled to vouch for them and 22 were not vouched for at all.

[87] In respect of the urban voters whose votes were impugned, 22 of them voted without obtaining a certificate and without being added to the voters’ list.

[88] There were an additional 13 rural votes and 2 urban votes impugned for other reasons, making a total of 121 votes. The plurality was 77.

[89] In the result, there were 121 voters who were not on the voters’ list, who were not added to the list, and who were permitted to vote in a manner that did not comply with the CEA. Finally, the case proceeded on the basis of an agreed statement of facts. There was no evidence before the court that any of the 121 irregular voters were either qualified to vote or entitled to vote. In those circumstances, it is not surprising that the court equated irregular votes with votes cast by persons who had no right to cast them.

[90] It is true that an argument was made in that case that where driver’s licences or passports were shown by the voters, as apparently was the case with some of the 22 urban voters who voted without a certificate, election officials would have been able to satisfy themselves as to the identity of the electors. The court rejected this argument, saying that this method did not comply with the statute and that it is not enough to say that the alternative method pursued was as good as the prescribed method. In other words, these ballots, like all of the other impugned ballots, were “ballots in the box that should not have been there.”

[91] The difference between O’Brien v. Hamel and this case is illustrated by considering what would have happened on election day if the applicable statute had been complied with. In O’Brien v. Hamel, the result of the election would have been different: 121 ballots that were in fact counted would not have been. In this case, the result of the election would have been the same. If the MEA had been complied with, the clerk would have endorsed the unendorsed VCLRFs and the ballots would have been counted.

[92] Finally, and importantly, in each and every instance in O’Brien v. Hamel, except perhaps for the residual 15 voters, the voter failed to do what he or she needed to do to be entitled to vote. Each of these voters either failed to have a qualified person available to vouch for them or failed to obtain the necessary certificate. That is entirely different from this case where almost all of the voters did precisely what they were supposed to do to be added to the list. It was the election official who neglected to sign the VLCRF in each case who was responsible for the irregularity.

[93] As a result, I am satisfied that the court in O’Brien v. Hamel did not intend to suggest that in a case where there is evidence that an irregularity did not affect the outcome of an election, it should be ignored and a simple arithmetic test applied. Once again, this amounts to an error in law.

[94] This brings me to the application judge’s third error. At paragraph 59 of her decision, she held that there was no evidence in the record upon which she could conclude that the impugned VLCRs were other than invalid. In my view, this was an error in law. An erroneous determination that there is no evidence of a matter in issue is an error in law. In this case, there was a significant body of evidence that demonstrates that the irregularities had no effect on the results of the two elections. While the application judge considered some of it in the course of rejecting the invitation to apply a presumption of regularity, she overlooked the most salient parts of it. The following is the evidence that demonstrates that the irregularities had no effect on the election.

[95] All electors were required by the Identification Policy to produce specific identification verifying their name, qualifying address, and signature in order to vote. Once it was confirmed by an election official that an elector whose name was not on the voters’ list was in the correct ward, the official was required by the Voting Procedure to give the elector a VLCRF and have the elector complete it. The elector was required to record his or her name and address on the form; to tick boxes indicating occupancy, residency and school support; to sign and date a declaration that he or she was a Canadian citizen, at least 18 years old on voting day, entitled to be an elector, and that the information provided was true and accurate; and to present the completed form to an official. The official was then required to review the form, tick a box confirming that identification had been checked, and, if satisfied of the elector’s eligibility, sign the form, add the elector’s name to the front of the voters’ list and place the original VLCRF and a duplicate in appropriate envelopes. The Ballot Officer was then required to provide the elector with a ballot and follow the ordinary voting procedure.

[96] There is no reason to doubt that this scheme was generally followed by the election officials. This conclusion is bolstered by the evidence that in addition to the City’s permanent election staff, the City hired an additional 11,262 persons to work on the election, and that all of the election staff underwent mandatory training, received election manuals and other aids, were competent and hardworking, and closely followed the voting day procedures.

[97] We know, of course, that despite all of these precautions, there were 286 voters added to the voters’ list in Ward 9 whose VLCRFs were not endorsed, and as many as 224 VLCRFs that were not endorsed in Ward 4 TDSB. But of those 286 voters in Ward 9, all but 11 of them signed the declaration that they were Canadian citizens, at least eighteen years old on voting day, and entitled to be an elector. And of the up to 374 unendorsed VLCRFs in Ward 4 TDSB, no more than 12 of them lacked a signed declaration that the voter was a Canadian citizen, at least eighteen years old on voting day, and entitled to be an elector.

[98] Finally, it is a fair inference, and there is no evidence to the contrary, that the election official in each case was satisfied that the voter in question was eligible to vote. Those voters would not have been added to the voters' list and given ballots if the election officials had not been satisfied that they were entitled to vote. We know, of course, that busy election officials overlooked signing the VLCRFs in many cases. But that is a far cry from imagining officials adding voters’ names to the voters’ list and giving ballots to those voters without being satisfied that it should be done. The former is negligent. The latter is serious misconduct. The only reasonable inference is that if any election official had not been satisfied of a voter’s right to vote, that official would have returned the VLCRF to the voter pursuant to s. 24(4) of the MEA.

[99] To this must be added a very significant body of evidence: the affidavits of seventeen DROs, MDROs and Ballot Officers who were involved in the election in either Ward 9 or Ward 4 TDSB. Each of these officers acknowledged that it is possible that due to inadvertence, or to the heavy voter traffic, they may not have signed every VLCRF. Nonetheless they were all confident that they added electors to the voters’ list and issued ballots to them only if they were satisfied, after the requisite identification was shown, that the electors were entitled to vote in that voting place. While of course there were more than these seventeen officials who added voters to the list in Ward 9 and Ward 4 TDSB, I consider this sample to be large enough to give me significant confidence that very few and most likely no voters were permitted to vote who did not present the required proof of eligibility.

[100] In the end, however, in my opinion, the most significant part of this evidence is the declaration made by all but at most 23 of these voters, and probably fewer, that they were qualified to be electors, taken together with the fact that these voters were actually added to the voters’ list. These declarations were made under threat of penalty if false. Section 89(h) of the MEA provides that if a person “furnishes false or misleading information to a person whom this Act authorizes to obtain information,” that person is guilty of an offence and, pursuant to s. 94.1(1), is liable to a fine of not more than $25,000. The Ontario Court of Appeal has confirmed that the submission of false information to an election official for the purpose of being added to the voters’ list on election day falls within s. 89(h). (See Sault Ste. Marie v. Tridico (2010), 2010 ONCA 184, 261 O.A.C. 93.) As a result, the evidence of the declarations by voters is very powerful evidence. It provides a very high level of certainty about the entitlement to vote of those persons who made them. Indeed, in the course of argument, counsel for Sullivan candidly conceded that the vast majority of the voters whose VLCRF’s were not endorsed were probably eligible to vote.

[101] In fact, my certainty about the entitlement to vote of the voters who did not appear on the voters’ list in the first instance is far greater than the certainty about the right to vote of voters whose names did appear on the original voters’ lists. At the very least, the original lists included names of persons who had moved out of the ward and who could have voted, improperly, if they still had identification showing their former address. The fact is, however, that we trust our citizens to be honourable about their entitlement to vote, fully recognizing that a few voters will undoubtedly vote where they are not entitled to vote. The level of assurance with the voters who have signed a declaration on a VLCRF is at least as high as with any other voter. It demonstrates that, unlike in O’Brien v. Hamel, there were very few ballots in the box that didn’t belong there.

[102] Relying on the declarations of voters that they are entitled to vote reinforces the enfranchisement of citizens and guards against disenfranchisement. The importance of these goals has been emphasized in many decisions of the courts considering election legislation, including the decision of the Supreme Court in Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995. In that case, Cory J., while writing in dissent, made the following remarks at paras. 104-107, with which L’Hereux-Dubé, for the majority of the Court, at para. 54, expressed total agreement:

104 All forms of democratic government are founded upon the right to vote. Without that right, democracy cannot exist. The marking of a ballot is the mark of distinction of citizens of a democracy. It is a proud badge of freedom. While the Canadian Charter of Rights and Freedoms guarantees certain electoral rights, the right to vote is generally granted and defined by statute. That statutory right is so fundamental that a broad and liberal interpretation must be given to it. Every reasonable effort should be made to enfranchise citizens. Conversely, every care should be taken to guard against disenfranchisement.

105 The principle was captured by J. P. Boyer in Election Law in Canada: The Law and Procedure [page1049] of Federal, Provincial and Territorial Elections (1987), vol. 1, at p. 383:

Drawing two short lines to form an "X" is the simplest act imaginable. Yet the right to so mark a ballot is as profound as the act is simple. Such marks, systematically compiled, are transformed by our beliefs and our laws into the most eloquent voice the people have.

The right to cast a vote for those seeking public office is encircled by procedures and laws designed not to make the exercise of this right difficult (although someone frustrated at not being able to vote for a technical reason may feel this is the case), but rather to ensure that it cannot be easily swept away.

106 The courts have always recognized the fundamental importance of the vote and the necessity to give a broad interpretation to the statutes which provide for it. This traditional approach is not only sound it is essential for the preservation of democratic rights. The principle was well expressed in Cawley v. Branchflower (1884), 1 B.C.R. (Pt. II) 35 (S.C.). There Crease J. wrote at p. 37:

The law is very jealous of the franchise, and will not take it away from a voter if the Act has been reasonably complied with.... It looks to realities, not technicalities or mere formalities, unless where forms are by law, especially criminal law, essential, or affect the subject-matter under dispute. [Emphasis added.]

107 To the same effect in Re Lincoln Election (1876), 2 O.A.R. 316, Blake V.C. stated (at p. 323):

The Court is anxious to allow the person who claims it the right to exercise the franchise, in every case in which there has been a reasonable compliance with the statute which gives him the right he seeks to avail himself of. No merely formal or immaterial matter should be allowed to interfere with the voter exercising the franchise ...

It can be seen that enfranchising statutes have been interpreted with the aim and object of providing citizens with the opportunity of exercising this basic democratic right. Conversely restrictions on that right should be narrowly interpreted and strictly limited.

[103] If the application judge had examined all of this evidence, particularly the voter declarations, which she did not apparently examine, and even if the onus is on the City on this issue, she undoubtedly would have been assured that the demonstrated irregularities did not affect the results of the two elections. The failure to consider this evidence is an error in law. Having found that the application judge erred in law in respect of this issue, we are entitled to substitute our conclusion for the one she reached. In the alternative, the conclusion that she reached on this issue without reference to the important evidence that I have outlined is a palpable and overriding error that again permits us to substitute our conclusion for the one she reached.

Was the election conducted in accordance with the principles of the MEA?

[104] This brings us to the last question that must be satisfied as prerequisite to invoking the saving power in s. 83(6)(b) of the MEA: was the election conducted in accordance with the principles of the MEA? Having concluded that the irregularity affected the result of the election, the application judge did not find it necessary to consider this question, although she commented on it briefly. Because I have concluded that the irregularity did not affect the result of the election, I must determine this question.

[105] I observe, first of all, that the principles of the MEA are not listed in that Act. As the Ontario Court of Appeal noted at para. 5 in Montgomery v. Balkissoon (1998), 1998 1993 (ON CA), 38 O.R. (3d) 321, “the principles of the Act are not explicitly set out but rather must be inferred from its provisions.” The court also warned against confusing “the principles of the Act with the means used to ensure conformity with those principles.” Finally, the Court inferred one of the principles of the MEA: the proper majority vote decides the election, which is achieved by ensuring, so far as is reasonably possible, that valid votes be counted and invalid votes be rejected. I note that this is not a standard of perfection.

[106] Other courts have listed some additional principles. In Di Biase v. Vaughan (City) (2007), 43 M.P.L.R. (4th) 287 (S.C.J.) at para. 15, the City clerk formulated the following list of principles:

(i) The secrecy and confidentiality of the voting process is paramount;

(ii) The election shall be fair and non-biased;

(iii) The election shall be accessible to the voters;

(iv) The integrity of the process shall be maintained throughout the election;

(v) There is to be certainty that the results of the election reflect the votes cast; and

(vi) Voters and candidates shall be treated fairly and consistently.

[107] The parties in that case accepted this list of principles, as did Lauwers J. in Goldie v. Brock Township (2010), 79 M.P.L.R. (4th) 44 (Ont. S.C.J.) at para. 15. For the purposes of this appeal, I am prepared to accept this list as an acceptable list of principles, with a slight modification to principle (ii), save for principle (v), which I consider to be ambiguous. If (v) means that there must be certainty that the numerical results of an election must accord with the actual votes cast, it sets a test of perfection that can never be met. But if it means that there must be certainty that the winner of an election actually received the most votes, then it is acceptable. But this idea is better stated by the Court of Appeal in Montgomery v. Balkissoon: the proper majority vote decided the election, which is achieved by ensuring, so far as is reasonably possible, that valid votes be counted and invalid votes be rejected.

[108] As for the modification to principle (ii), for reasons of clarity, I would replace the words “and non-biased” with the words “and must not favour one candidate over another.”

[109] Counsel for Sullivan urged us to add three additional principles to the list, only one of which requires consideration on this appeal. He urged us to adopt as a principle that an election must comply with the mandatory statutory requirements of the MEA. I note that in several cases, an effort has been made to distinquish mandatory provisions of the MEA and similar statutes from directory provisions. Counsel for Sullivan went on to say that since persons were added to the voters’ list without satisfying what he categorized as mandatory statutory requirements, as a result, s. 83(6) is not available to save the election. In my view, compliance with the mandatory provisions of the Act should not be adopted as a principle of the MEA, for several reasons.

[110] First, such a principle would make it necessary to determine which provisions of the MEA are mandatory and which are directory. A review of those cases in which such an approach has been taken and the discussion of them by the application judge at paras. 34-53 of her judgment makes it apparent that it would be unwise to unnecessarily add that distinction to the s. 83(6) calculus.

[111] Second, and more fundamentally, such a principle would undermine the very purpose of s. 83(6). As I have already said, it is a broad saving provision that includes a sweeping definition of “irregularity,” while narrowly circumscribing the circumstances in which an irregularity will be fatal to an election. It does so in recognition that irregularities are inevitable in an election and in affirmation that the democratically expressed will of the electorate should not lightly be overturned. The principle advocated by counsel for Sullivan must be rejected.

[112] A better approach to answering the question whether the election was conducted in accordance with the principles of the MEA is found in the judgment of Rose C.J.H.C. in Rex ex rel. Fennessy v. Wade and Plaunt, 1939 54 (ON SC), [1939] O.R. 537, who was considering an earlier but similar curative provision, which was then found in s. 163 of the Municipal Act, R.S.O. 1937, ch. 266. This branch of the curative provision permitted an irregularity to be cured if “the election was conducted in accordance with the principles laid down in [the Act.]” Rose C.J.H.C. stated, at p. 541:

The Act does not lay down principles; it lays down rules of procedure which are to be followed, and the "principles" referred to are, as Riddell J.A. said, the principles upon which an election to which those rules apply is to be conducted. And when sec. 163 says that no election shall be or be declared to be invalid for non-compliance with certain provisions of the Act or by reason of certain mistakes or irregularities, provided it appears that the election was conducted in accordance with the principles laid down in the Act, it does not mean merely that no election shall be invalid for such non-compliance, mistake, or irregularity, provided there was in all instances a following of the relevant rules. On the contrary, what is enacted is that certain breaches of the rules shall not cause the avoidance of the election if there has been an adherence to the principles; and what appears to be intended, although not expressed as clearly as it might have been, is that, if there is a general adherence to the principles, some isolated breaches of the rules, not shown to have affected the result, shall not avoid the election.

[113] He further stated, at p. 542:

There is, then, no object in comparing the cases in the hope of extracting from them a formula that can with confidence be applied in every case that may arise. In each case, as it comes up, the tribunal, I think, must try to form a practical conclusion as to whether, upon the facts as they appear, there was a general endeavour to conduct the election upon the principles in accordance with which an election held under the Act ought to be conducted, and whether that endeavour was so far successful as fairly to call for the application of the section. On the one hand, care must be taken not to create the impression amongst those in charge of municipal elections that the Courts will be astute to find excuses for the ignoring of the regulations prescribed by the Legislature … On the other hand, it must be remembered that the section is remedial legislation which is to be given full effect. The finding of the middle ground may be difficult, but the attempt must be made.

[114] The evidence in this case is overwhelming that “there was a general endeavour to conduct the election upon the principles in accordance with which an election held under the Act ought to be conducted” and “that endeavour was so far successful as fairly to call for the application of the section.”

The Elections Were Valid

[115] For these reasons, the appeal is allowed, the City of Toronto elections on October 25, 2010 for the position of City Councillor in Ward 9 and for the position of School Trustee for Ward 4 of Toronto District School Board are declared valid, and the order for by-elections is set aside.

[116] There remains to be determined not only the question of costs of the application and of the appeal, but also of the motion brought by Augimeri before Lederman J. to intervene as a party in the appeal (see his ruling deferring the issue of costs to the panel hearing the appeal at [2011] O.J. No. 4293, 2011 ONSC 5578.) Counsel for the appellants and interveners may file written submissions of no longer than 8 pages within 15 days of the release of this judgment. Counsel for the respondents may file written submissions of no longer than 8 pages within 30 days of the release of this judgment.

DAMBROT J.

JENNINGS J.

SPROAT J.

RELEASED: December 19, 2011

CITATION: Cusimano v. Toronto (City), 2011 ONSC 7271

DIVISIONAL COURT FILE NO.: 260/11 & 259/11

DATE: 20111219

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, DAMBROT and SPROAT JJ.

B E T W E E N :

AGUSTINE G. CUSIMANO

Applicant

(Respondent)

– and –

CITY OF TORONTO and MARIA AUGIMERI

Respondents

(Appellants in Appeal)

--and –

GLORIA SACCON and CITY OF MISSISSAUGA

Interveners

AND BETWEEN:

MICHAEL SULLIVAN

Applicant

(Respondent)

-- and –

CITY OF TORONTO and STEPHANIE PAYNE

Respondents (Appellants)

-- and –

CITY OF MISSISSAUGA

Intervener

REASONS FOR JUDGMENT

DAMBROT J.

RELEASED: December 19, 2011