Court File and Parties

OSHAWA COURT FILE NO.: CV-18-003317

DATE: 20190207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Donald Kett, Betty Sommerville and Jennifer Black, Applicants

AND:

The Corporation of the Township of Scugog, Respondent

BEFORE: Justice J. Di Luca

COUNSEL: Donald Kett, In Person Christopher Lee and Steven Ferri, Counsel, for the Respondent

HEARD: January 31, 2019

ENDORSEMENT

[1] The Applicant, Mr. Donald Kett, was a Regional Councillor candidate in the October 2018 municipal election in the Township of Scugog. He placed third out of four candidates, some 3,704 votes behind the winner.

[2] He seeks a court ordered recount and raises a litany of questions, purported concerns and possible issues about the process that was used to conduct the election. In his view, there is a cloud of suspicion and doubt that hangs over the election results.

[3] At the conclusion of oral argument, I indicated that the application was dismissed as I had not been satisfied that there were reasonable grounds to doubt the election results. I indicated that written reasons would follow and these are my reasons.

[4] I note at the outset that when this application was initially commenced two other failed candidates joined Mr. Kett in seeking a recount. Those failed candidates, Betty Sommerville and Jennifer Black, abandoned their applications prior to the hearing of the application.

Legal Framework

[5] The test for a court ordered recount is set out in Section 58 of the Municipal Elections Act. The relevant portions of the section provide as follows:

58 (1) A person who is entitled to vote in an election and has reasonable grounds for believing the election results to be in doubt may apply to the Superior Court of Justice for an order that the clerk hold a recount.

Order, notice

(3) If satisfied that there are sufficient grounds for it, the court shall make an order requiring the clerk to hold a recount of the votes cast for all or specified candidates, on a by-law, or for all or specified answers to a question, and shall give the clerk a copy of the order as soon as possible.

Problems re voting and vote-counting equipment

(6) A request for a recount due to problems related to voting and vote-counting equipment may be made only under this section.

[6] In Goldie v. Brock (Township), 2010 ONSC 6930, the court noted that the test under section 58(3) of the Municipal Elections Act has both subjective and objective components. The Applicant must subjectively believe that there are grounds to doubt the election result and that belief must be objectively reasonable. The objective component of the test requires compelling and credible information which raises a reasonable probability that the election results are in doubt; see Lyras v. Heaps, 2008 ONCJ 524 at para. 25, R. v. Chehil, 2013 SCC 49, and R. v. MacKenzie, 2013 SCC 50. Speculation, suspicion and conjecture fall short of this standard. Conversely, the Applicant is not required to demonstrate a prima facie case that the election result is in doubt.

[7] Where a recount is ordered, the recount is to be conducted in the same manner as the original count unless the court is of the opinion that the manner in which the original count was conducted caused or contributed to the doubtful result. In such a case, the court can direct the manner that the recount be done in a different manner; see s. 60(1) and (3) of the Municipal Elections Act.

[8] Where procedures are established to conduct an election, those procedures must adhere to the core principles that animate the Municipal Elections Act; see DiBiase v. Vaughan (City), 2007 CarswellOnt 8775 at para. 15, Cusimano v. Toronto, 2011 ONSC 7271 (Div. Ct.) at para. 106-7, and Montgomery v. Balkissoon (1998), 1998 CanLII 1993 (ON CA), 38 O.R. (3d) 321 (Ont.C.A.). The principles include:

a. The secrecy and confidentiality of the voting process is paramount;

b. The election shall be fair and non-biased;

c. The election shall be accessible to the voters;

d. The integrity of the process shall be maintained throughout the election;

e. There is to be certainty that the results of the election reflect the votes cast and that proper majority vote governs; and,

f. Voters and candidates shall be treated fairly and consistently.

The 2018 Scugog Municipal Election

[9] The 2018 municipal election in Scugog was held using the alternative method of “vote by mail”, with the votes tabulated by optical scanning equipment. This voting process was adopted by Scugog council under By-law 14-17. At the time the by-law was passed, Mr. Kett was a member of council. This was not the first time that “vote by mail” was used.

[10] As authorized by the by-law, John Paul Newman, the Municipal Clerk for Scugog, developed procedures for the election. The procedures were first compiled in December 2017 and then were amended on a number of occasions up to August 31, 2018. The Applicant was provided with copies of the procedures when he submitted his nomination form. These procedures were included in a candidate binder provided to each candidate.

[11] A third party service provider, DataFix, was retained to prepare and mail out voting kits based on the voters list. DataFix billed the Township for the mail out kits including postage.

[12] The voting kits contained a cover letter with instructions and a declaration form, a ballot, a return envelope and a secrecy envelope. Use of the kit required a voter to sign the declaration form and complete the ballot. The ballot would be placed in the secrecy envelope which would then be placed along with the declaration form into the return envelope. The return envelope could be either mailed to the Township or dropped off.

[13] From September 26 to October 21, 2018, the Clerk and the Elections Coordinator, or on one occasion the Election Assistant, would pick up the return envelopes from the post office at the Town hall. They would also retrieve the ballot box from a secure storage room vault. The Clerk was the only person who had the key and alarm code for the vault.

[14] The processing of the return envelopes entailed opening the envelopes and scanning the unique barcode that appeared on the Declaration form. If the barcode was valid, the corresponding secrecy envelope containing the ballot would be grouped in a batch of 25 and placed into the ballot box for counting on Election Day.

[15] After the processing was complete, the Clerk and the Elections Coordinator would seal the ballot box with a ziptie, place seals over the ballot return slots and sign the seals. Records were kept detailing the treatment of the return envelopes.

[16] The processing of the return envelopes was scrutinized every time by either Mr. Kett or his scrutineer.

[17] On certain days, the Clerk and the Election Coordinator would attend large retirement and care facilities with a ballot box. This was done to increase accessibility for voters living in these facilities. The ballot boxes for this purpose were sealed and scrutineers were advised that this was being done. There was no objection.

[18] On Election Day, the ballot counting procedures were commenced. This entailed two stations. At the first station, ballots were removed from the secrecy envelopes and placed flat into batches of 25. This process was open to scrutineers and candidates. There were no complaints or concerns raised about this process.

[19] At the second station, electronic voting tabulators were used to tabulate the votes reflected in the ballots. The batches of ballots were brought to the station by runners, who were in sight of scrutineers. The ballots were first put through one of two tabulators, each of which were hooked up to a laptop. The laptops and tabulators work in unison to scan and receive the information on the ballots. The equipment and software was provided by Dominion Voting Systems. The laptops and tabulators were not hooked up to the internet or to any external network.

[20] Prior to scanning the ballots, “zero reports” were run to ensure that the tabulators and laptops would start counting from zero. Each batch of ballots was then fed into the tabulators and scanned. A check was done to ensure that the number of ballots scanned matched the number of ballots in the batch. The results of the scanning would be saved on the laptop.

[21] If an error message identified a defective ballot, the ballot would be removed from the batch and placed in a folder to be sent to the defective ballot processing station. Details of any such steps would be recorded.

[22] The process was open to scrutineers. There were no complaints or questions at the time.

[23] The process at the defective ballot station involved examining the defective ballot and recreating the information on a blank ballot so it would be readable. The process of examining and rectifying defective ballots was observed by both scrutineers and candidates. Only one objection was received and it did not relate to the Applicant.

[24] Following completion of the defective ballot process, the laptop tabulated the election results and produced an election summary report.

[25] On the following day, the results were audited and verified. Data from 52 randomly selected ballots was found to match the scanned image of the selected ballots. As well, the number of return envelopes precisely matched the number of ballots processed.

The Complaints Raised by the Applicant

[26] In the Notice of Application, Mr. Kett raises the following complaints:

a. Scrutineers were not given full optics of procedures;

b. There were mechanical irregularities that affected the result of the election;

c. There were process irregularities that affected the result of the election;

d. There were issues regarding the security of the ballots during the election period; and,

e. The printing of the ballots at the Township office was unsecured and unaccountable.

[27] At the outset of hearing of this application, Mr. Kett sought leave to amend his application to allege that mechanical and procedural irregularities “may” have affected the election results.

[28] The Notice of Application seeks a manual recount only, though in his factum and oral submissions Mr. Kett indicates that he is also seeking disclosure of all security video recordings, receipts, transcripts, accounting, communication, ballots and any documentation related to the election. He also seeks an opportunity to inspect all audit trails and documentation of who used the electronic access controls to the secured areas where the ballots were stored. Lastly, he seeks an order requiring Dominion Voting Systems and DataFix to authenticate ballots returned during the election.

[29] In support of this application, Mr. Kett has sworn an affidavit. He has also provided a number of notarized though unsworn statements of purported witnesses to improprieties during the election period.

[30] A summary of the complaints contained in these notarized statements is as follows:

a. While canvassing homes that were listed on the voter’s lists as not having voted, volunteers were informed by various home occupiers that they had indeed voted, suggesting that the voter’s lists had not been properly updated.

b. A volunteer was not permitted to attend with the Clerk at the post office to retrieve mailed in ballots, nor was the volunteer permitted to accompany the ballots from the main floor boardroom to the secure basement storage area. That said, the volunteer was permitted to observe ballot processing.

c. A volunteer noted that other election material, including a ballot printing machine, undelivered ballots and voter declaration cards were not stored in the secure area along with the ballots.

d. The flow of information to volunteers/scrutineers left much to be desired. Many questions about the various processes in place were left unanswered or answered in an unclear or incomplete fashion.

e. It appears that the candidate who became mayor may have seen results on a screen prior to the official release of the election results.

f. The tabulators were tested before scrutineers attended and the scrutineers were not shown the “zero reports”.

g. Ballots could be dropped off through a mail slot after office hours, but the municipal offices were open to anyone who had a key fob for access.

h. An IT person contracted to work for the Township was in the tabulator room without any apparent reason or explanation.

i. The Clerk did not post preliminary election results as had been done in the past.

j. The receipts from the tabulators were not provided to scrutineers.

[31] In his affidavit, Mr. Kett advances the following complaints:

a. Neither he nor his scrutineers were permitted to monitor retrieval of ballots from the post office, nor were they advised that ballot boxes would be brought to institutions and nursing homes.

b. The Clerk denied a request to review security videos taken inside the municipal offices. A request to inspect the secure area was also denied.

c. The Clerk did not provide a number of items including Canada Post receipts for the vote by mail kits, daily vote counts, logs tracking who entered the secure area and when, number of voters who had attempted to vote twice, numbers of voters added to the voter’s list, et cetera.

d. A request to fill ballot boxes with exactly 1,000 ballots was denied, as was a request to place initials on ballot box seals.

[32] In his oral submissions, Mr. Kett amplified his complaints and raised a number of additional seemingly unanswered questions about the election process.

The Clerk’s Response

[33] In his detailed affidavit, John Paul Newman, the Township Clerk, provided a response to the complaints raised by the Applicant. He also included copies of email correspondence between himself and the Applicant and others relating to queries about the election process.

[34] A summary of his response is as follows:

a. The ballots were retrieved and processed on 32 occasions prior to tabulation. At no time did any candidate or scrutineer present communicate any dissatisfaction with the process or procedures.

b. Mr. Kett asked questions about the process and was provided answers. On some issues, for example, the request to inspect the secure vault and the request for access to security videos, Mr. Kett was denied, as he was not entitled under the procedures to this degree of access simply on demand. As well, the secure vault required that access had to be restricted. If all candidates and their scrutineers were given access to the vault, its security could not be guaranteed.

c. No request was made to permit scrutineers to monitor the transfer of the ballots from the post office to the Township office or to monitor the transfer of the ballots within the Township office to the secure vault.

d. There were no complaints raised during a ballot counting process walkthrough which was done for the candidates. The walkthrough was followed up by an email. No complaints followed the email.

e. Prior to vote tabulation, Mr. Newman ran a “zero report” on the tabulators. A second “zero report” was done in the presence of the scrutineers. No complaints were made at the time.

f. The tabulation process was done in the presence of the scrutineers. While they may have had some difficulty seeing the laptop screen, they raised no complaint.

g. Defective ballots were processed in view of the scrutineers. Only one concern was raised.

h. The IT person, Mr. Adam Dubecki, was provided with a USB key with the election results. He assisted in preparing a PowerPoint presentation to be presented in council chambers when the results were announced.

i. On the day following the election, Mr. Newman and the Election Coordinator completed a number of audit procedures and reports. The results revealed no issues.

j. Prior to the election, Mr. Newman conducted logic and accuracy tests on the equipment and found no issues.

k. While there were few complaints about the process in advance of the election, Mr. Kett asked for a recount on November 6, 2018, a few days after the election. He also requested access to security videos, logs, and receipts. On November 7, 2018, Mr. Newman denied the request for a recount indicating that he could order a recount only if two candidates received the same number of votes. He also advised Mr. Kett that Scugog council could order a recount by way of a special council meeting. Lastly, he denied Mr. Kett’s requests for access to the listed items on the basis that the items had nothing to do with the election results.

l. The Mayor was advised of Mr. Kett’s request. The Mayor decided not to call for a special council meeting to address the issue. An email was sent to council indicating that a majority of council could call for a special council meeting to address the possibility of a recount. No one asked for a special meeting and some councillors, including one of the original Applicants in this matter, opposed a special meeting.

m. Mr. Kett was advised that as no council member was in favour of a special council meeting, one would not be called. Mr. Kett was then directed to s. 58 of the Municipal Elections Act. Mr. Kett responded with a lengthy laundry list series of complaints and questions which mirror many of his complaints advanced in this Application.

Analysis

[35] I commence my analysis with a recognition of the fundamental importance of the election process in a democracy such as Canada. There can be no doubt that the courts must be vigilant to insure that the fairness, integrity and openness of the election process is not only maintained but fostered.

[36] Section 58 of the Municipal Elections Act provides a mechanism through which the court can order a recount if there are reasonable grounds to doubt the validity of the election results. In this regard, I note that the validity of the election results relates to the principle that the person with the majority of votes wins the election. The standard is not one of perfection. In other words, it is the result that must be called into question not simply the exact vote count.

[37] Here, Mr. Kett, an incumbent, lost the election resoundingly. He placed third by over 3,700 votes. There were approximately 7,000 votes cast. His former co-Applicants also lost the election, though by smaller margins.

[38] In support his request for a recount, Mr. Kett raises a litany of questions and concerns. Some of these concerns come from unsworn statements of his colleagues. Some of the concerns come from his sworn affidavit. Generally speaking, the concerns fall into three broad categories; (a) alleged failures to provide access to documents and videos that were required to assess the integrity of the process, (b) alleged failures to permit participation in the vote processing and tabulating process and (c) alleged failures to abide by the principles and/or provisions of the Municipal Elections Act.

[39] Before dealing briefly with some of the specific concerns raised, I will offer some general comments. First, Mr. Kett maintains that this application is not about sour grapes. That may or may not be the case. However, there is an obvious ex-post quality to his complaints, especially in view of the fact that he was an incumbent and would have been well aware of the election procedures as they were developed and implemented. No substantial complaints were raised by him prior to the election process. He waited until after the election results were announced and after the council elected not to call a special meeting to consider a recount before revealing his laundry list of complaints and requests. The timing is telling.

[40] Second, Mr. Kett essentially offers no evidence that anything untoward happened with the election process. His complaints are based on speculation that something could or might have happened with the process. While I appreciate that he does not need to prove to a civil or criminal standard that the election result was incorrect, he does need to point to a credible basis upon which I can find a reasonable probability that the election results were incorrect. That objective credible basis must be found in evidence and not speculation, conjecture or conspiracy theory.

[41] Third, given the result of the votes, this was not a close election on any front. This is not a case where a swing of a small number of votes would have changed the outcome of the election. For the results of this election to be in doubt, a very significant degree of malfeasance or error would be required.

[42] I turn next to the three general categories of complaints. I will not catalogue and address each and every complaint. In my view, none of the complaints taken alone or together remotely undermine the process. I will, however, review a few examples to demonstrate the general nature of the complaints raised by Mr. Kett.

[43] Mr. Kett seeks access to all documents related to the election. He also seeks access to video recordings and faults the Clerk for not allowing him to inspect the secure vault. The Municipal Elections Act and the Scugog election procedures provide candidates and their scrutineers with access to various aspects of the voting process so that they can satisfy themselves about the integrity of the election. The Act and the procedures do not provide unlimited access to anything that could possibly be related to the election process. In this regard, I note that many of Mr. Kett’s request are well beyond the scope of the Act and the procedures. The requests are also unreasonable, if not fanciful, in the absence of some articulated basis supporting the request. For example, Mr. Kett sought access to video security footage around the areas of the secure vault. He sought logs showing who was authorized to enter certain locations within the Township offices. He also sought access to the vault in order to inspect it. He provided no legal or factual basis for these requests. In these circumstances, I find that the Clerk acted correctly and reasonably in denying these requests.

[44] Mr. Kett alleges that his scrutineers were prohibited from observing the ballots being collected from the post office. However, at no time prior to the tabulation, did Mr. Kett or anyone else ask to accompany the Clerk when he went to retrieve ballots. In any event, there is no requirement that Mr. Kett be permitted to have a scrutineer attend for the transport of the ballots from the post office to the Township offices.

[45] Mr. Kett alleges impropriety in the manner in which ballot boxes were taken to nursing homes for the collection of ballots. He indicates that he was not apprised that this was happening and as a result could not have a scrutineer attend. There was nothing untoward about this process. Quite the opposite, it was done to facilitate accessibility, which is a principle of the Act. In any event, once the ballots were collected in this fashion, the ballot boxes were marked accordingly, sealed and taken back to the vault for processing under the watchful eye of scrutineers. The scrutineers would have known that the ballot boxes had been collected at nursing home facilities.

[46] Mr. Kett argues that his scrutineers were prohibited from placing their seals on ballot boxes. It appears that the request was never made and in fact, it would have been contrary to the Scugog election procedures, notwithstanding the provisions of the Act.

[47] Mr. Kett complains that the vote tabulation process did not provide preliminary results as it had in the past. There is nothing improper about this. The equipment was not set up to do so in this election.

[48] Mr. Kett complains that a printer used to print ballots was left unsecured and could have been used to print extra ballots. While this may be true, the potential existence of extra ballots is irrelevant in view of the system used for obtaining Declaration forms for each ballot cast.

[49] Mr. Kett complains that scrutineers were not permitted to verify the testing of the tabulators prior to vote counting. The logic and accuracy testing of the tabulators was done in advance of the election. There is no authority requiring that the testing be done in the presence of candidates or scrutineers. Prior to the election, no inquiries were made by either Mr. Kett or his scrutineers. That said, on the evidence before me, the tabulators were tested before and after the election and there were no issues.

[50] On the whole, Mr. Kett’s complaints have a thread grasping, conspiracy like quality to them. Each unanswered request becomes proof that something may have happened. Similarly, once requests are answered, the answers invariably result in more questions and concerns that are then unanswered. To give but one example, Mr. Kett requested receipts showing how many voter kits were mailed out. A receipt from DataFix was eventually provided showing a disbursement for postage. Mr. Kett, in his submissions, then pointed to the receipt and questioned why no receipt from Canada Post was provided and questioned how it was that DataFix managed to obtain such a low price for postage. Mr. Kett pointed to this as further proof of potential malfeasance and error.

[51] In short, I find that Mr. Kett is not looking for answers. He is looking for questions. The answers do not matter as Mr. Kett is simply not prepared to accept the results of this election. Nothing he raises provides an objective basis for concluding that there exists a reasonable probability to question the election results.

[52] The application is dismissed.

Costs

[53] The Township of Scugog seeks approximately $29,000 in costs and disbursements on a partial indemnity basis. Prior to the hearing of the Application, the Township offered to settle the application on terms including a withdrawal of the recount application and $15,000 in costs.

[54] The Township argues that in view of its complete success on the application and the offer to settle, the request for costs on a partial indemnity basis is more than reasonable.

[55] I accept that the Township has incurred unnecessary expenses in defending this application. The taxpayers in this small community should not to have bear the brunt of Mr. Kett’s failed attempt to review the election process. That said, the costs consequences of applications seeking to maintain and foster open, transparent, and fair elections, should not operate as a deterrent to persons who legitimately seek resort to the court process to test the validity of election results.

[56] Bearing in mind the principles of proportionality and reasonableness, I find that costs of $20,000 all-inclusive are warranted in this case.

Justice J. Di Luca

Date: February 7, 2019