Court File and Parties

COURT FILE NO.: CV-21-00669589-0000 DATE: 2021-10-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ALEJANDRA BRAVO Applicant

– and –

CHIEF ELECTORAL OFFICER and JULIE DZEROWICZ Respondents

Meg Atkinson and Vinidhra Vaitheeswaran, for the Applicant

Jean-François Morin, for the Respondent Chief Electoral Officer

Jack Siegel, for the Respondent Julie Dzerowicz

HEARD: October 5, 2021

REASONS FOR JUDGMENT

VERMETTE J.

[1] The Applicant applies for a judicial recount of all the ballots returned by election officers or the Chief Electoral Officer in the electoral district of Davenport in Toronto (“Davenport”).

[2] The Applicant was a candidate for election in Davenport in the 44th General Election that occurred on September 20, 2021. She stood as a candidate for the New Democratic Party of Canada (“NDP”). The Respondent Julie Dzerowicz stood as a candidate for the Liberal Party of Canada. Following the validation process, the Result of Voting certified by the returning officer for Davenport reported that the Applicant had received 19,854 votes and that Ms. Dzerowicz had received 19,930 votes. Thus, the Applicant came second by 76 votes.

[3] During the hearing of this matter on October 5, 2021, I ordered on consent that Ms. Dzerowicz be added as a Respondent to this Application and that the title of proceeding be amended accordingly. The parties also agreed that the Applicant would not rely on certain paragraphs of one of the affidavits included in the application materials (paragraphs 14, 16 and 17 of the Affidavit of Andre Fast affirmed on September 30, 2021), except for the exhibits referred to in these paragraphs.

[4] At the end of the hearing, I indicated to the parties that I was granting the application for a judicial recount of all of the ballots returned by election officers or the Chief Electoral Officer in Davenport, with reasons to follow. The following are my reasons for granting the Application.

Applicable Legal Principles

[5] This Application for a judicial recount is made pursuant to section 301 of the Canada Elections Act, S.C. 2000, c. 9 (“Act”). Subsection 301(1) provides that an elector may, within four days after the day on which a returning officer issues a certificate of votes cast, apply to a judge for a recount. Subsection 301(2) sets out the test that applies on this Application:

The judge shall fix a date for a recount if it appears, on the affidavit of a credible witness, that

(a) an election officer has incorrectly counted or rejected any ballots, or has written an incorrect number on the statement of the vote for the votes cast for a candidate; or

(b) the returning officer has incorrectly added up the results set out in the statements of the vote.

[6] The requirement on the judge to fix a date for a recount is mandatory if it appears, based on the evidence, that an error of the type described in subsection 301(2) exists: see Koloski v. Merasty, 2006 SKQB 60 at para. 3 (“Koloski”) and Maynard v. Kania, 2008 CanLII 54978 at para. 10 (Ont. S.C.J.) (“Maynard”). The threshold of proof under section 301 of the Act is low and there is no materiality threshold to be met: see Maynard at para. 10. See also O’Grady v. Nantel, 2015 QCCS 5001 at paras. 9-10 (“O’Grady”).

[7] In Koloski, Justice Rothery held at paragraph 3 that the legislative framework for a judicial recount is based on accuracy of the counting process. Justice Daley agreed with this view in Maynard and stated the following at paragraph 21:

I agree with Rothery J.’s approach and I am also of the view that inherent in the consideration of s. 301(2) of the Act is a benchmark of accuracy in the proper counting and recording of all ballots by the DRO [deputy returning officer] and by the supervising RO [returning officer]. It is not necessary, nor would it be proper under the scope of the legislation, for the court to assess how material the alleged error was to the overall integrity of the election process.

[8] Broadly worded affidavits are not sufficient to allow the court to determine whether the conditions set out in section 301 of the Act are met. Affidavits filed in support of an application for a judicial recount must contain sufficiently detailed facts to permit such a determination: see O’Grady at paras. 21-22.

[9] Sections 283 and 287 of the Act are also relevant in this case. Section 283 relates to the counting of votes and section 287 relates to the preparation of the Statement of the Vote. These provisions read as follows:

Counting the votes

283(1) Immediately after the close of a polling station, an election officer who is assigned to the polling station shall count the votes in the presence of

(a) another election officer who is assigned to the polling station; and

(b) any candidates or their representatives who are present or, if no candidates or representatives are present, at least two electors.

Tally sheets

(2) One of those election officers shall supply all the persons referred to in paragraph (1)(b) who are present and who request one with a tally sheet to keep their own score of the voting.

Steps to follow

(3) The election officer who counts the votes shall, in the following order,

(a) count the number of electors who voted, count the number of those to whom a certificate was given under subsection 161(4), make an entry at the end of the list of electors that states “The number of electors who voted at this election is (stating the number). Of these, the number of electors to whom a certificate was given under subsection 161(4) is (stating the number).”, sign the list and place the list in the envelope supplied for that purpose;

(b) count the spoiled ballots, place them in the envelope supplied for the purpose, indicate on the envelope the number of spoiled ballots, and seal it;

(c) count the unused ballots that are not detached from the books of ballots, place them with the stubs of the used ballots in the envelope supplied for the purpose, indicate on the envelope the number of unused ballots, and seal it;

(d) total the number of electors indicated under paragraph (a) who voted and the numbers arrived at in paragraphs (b) and (c) in order to ascertain that all ballots that were provided by the returning officer are accounted for;

(e) open the ballot box and empty its contents onto a table; and

(f) examine each ballot, show the ballot to each person who is present, and ask the election officer referred to in paragraph (1)(a) to make a note on the tally sheet beside the name of the candidate for whom the vote was cast for the purpose of arriving at the total number of votes cast for each candidate.

Statement of vote

287(1) The election officer who counts the votes shall prepare a statement of the vote, in the prescribed form, that sets out the number of votes in favour of each candidate and the number of rejected ballots and shall place the original statement and a copy of it in the separate envelopes supplied for the purpose.

Copies of statement of vote

(2) The election officer shall give a copy of the statement of the vote to each of the candidates’ representatives present at the count.

[10] Many of the errors alleged by the Applicant in this case relate to the counting of unused ballots. In Koloski, Justice Rothery granted the application for a recount based on evidence of incorrect counting of unused ballots. She stated the following:

6 On the other hand, there is evidence on the face of the Statement of the Vote for certain polls that the deputy returning officer has incorrectly counted the unused ballots. Section 283(3) of the Act requires the deputy returning officer to correctly count not only the votes cast, but to correctly count all ballots. Section 283(3) states: […].

8 While it might be argued that incorrectly counting the unused ballots does not affect the counting of the votes, such errors indicate a lack of precision that is not permitted by the Act. The entitlement to a judicial recount is dependent upon evidence of errors having occurred. Once that is established by affidavit evidence, the judge is required to order the recount.

9 Unlike provincial elections where entitlement to a recount is based upon factors including the total number of rejected votes, this Act uses accuracy as its benchmark for entitlement to a recount. The test is to show the judge that it appears there have been counting mistakes. There are six polls that reflect counting mistakes. Without a recount, it will never be known whether these are mistakes in counting the number of unused ballots, or simply not counting unused ballots, or some other counting mistakes.

10 Furthermore, it is not the number of mistakes that determine whether a recount may be granted. In the case of In re The Dominion Elections Act, 1938 In re McCullough and Maple Creek Electoral District, 1940 CanLII 167 (SK QB), [1940] 2 W.W.R. 185 (Sask. D.C.), the application for a recount was granted on the evidence of only two votes being improperly rejected by the deputy returning officer. Because of the evidence of incorrect counting of unused ballots, I must grant the application for a recount.

Discussion

[11] The evidence before me includes four affidavits filed by the Applicant, and one affidavit filed by Ms. Dzerowicz. The affiants are all persons who assisted with the campaign of one of the candidates. In addition to this affidavit evidence, the returning officer for Davenport, Mr. Marko Banjavcic, provided oral evidence at the hearing. He was examined over Zoom by counsel for Ms. Dzerowicz and counsel for the Applicant. Some Elections Canada manuals and guidebooks were also filed, and Mr. Banjavcic was taken to some of them during his testimony.

[12] As in Maynard, the Applicant prepared a summary chart of the alleged errors in this case, as referenced in the affidavit evidence. In my view, it is unnecessary to deal with all of them as I am satisfied, based on the analysis below, that there is more than sufficient evidence to conclude that it appears that errors of the type referred to in subsection 301(2)(a) of the Act have been made, i.e. that an election officer has incorrectly counted or rejected any ballots. I find that, contrary to the situation in O’Grady, the affidavit evidence filed in this case contains sufficiently detailed facts to allow the court to determine whether the conditions set out in section 301 of the Act are met. In particular, numerous Statements of the Vote were included in the evidence and, most of the time, they speak for themselves. No such evidence was filed in O’Grady.

[13] The evidence before me, including the Statements of the Vote in the materials, show the following:

a. Unused ballots were not counted at a number of polling stations, including polls 25, 107, 611, 612 and 614, contrary to section 283(3)(c) of the Act. During his testimony, the returning officer stated that not counting unused ballots was “careless”.

b. On some Statements of the Vote, the total of (i) votes cast, (ii) spoiled ballots, and (iii) unused ballots does not match the total of ballots supplied. Pursuant to section 283(3)(d) of the Act, these numbers are to be added in order to ascertain that all ballots that were provided by the returning officer are accounted for. In most cases, no explanation was provided on the Statements of the Vote for the fact that the numbers did not match. This is the case, for instance for polls 62, 152 and 610.

c. On some Statements of the Vote, the total number of electors on the list who voted is greater than the total of votes cast. This is the case, for instance, for polls 21, 107, 121 and 155. This strongly suggests that there was either a mistake made when counting the number of electors who voted pursuant to section 283(3)(a) of the Act or a mistake in counting the number of votes cast.

d. There is a clear arithmetic mistake on the Statement of the Vote for local special ballots 2001-2400. When all the numbers are added up, the total number of votes cast should be 286 (276 valid votes cast and 10 rejected ballots), but the number written on the Statement of the Vote is 284 (274 valid votes cast and 10 rejected ballots), i.e. a difference of two valid votes that appear not to have been taken into account. There is no evidence that this mistake was corrected at a later point.

e. The numbers also do not add up on the Statement of the Vote for poll 608. While it appears that the total of valid votes cast and the total of votes cast were later corrected, the number of votes cast (as corrected), spoiled ballots and unused ballots do not add up to the total number indicated on the Statement of the Vote. Further, a range (4-5) is provided for the number of spoiled ballots instead of a precise number.

f. There is uncontradicted affidavit evidence by a NDP scrutineer that, in the face of a discrepancy of about 200 ballots involving the number of unused ballots, the poll workers at poll 600 decided to simply change the numbers on the Statement of the Vote to make the numbers balance instead of recounting the ballots. This evidence is supported, in part, by the Statement of the Vote for poll 600 which includes numerous corrections and scratched-out numbers. The returning officer described this Statement of the Vote as “a mess” and stated that it was unusual to have so many corrections on a Statement of the Vote.

[14] I also note that, based on the evidence of the returning officer at the hearing, the total number of ballots supplied should usually be a multiple of 50 because ballot books that are issued to election officers each contain 50 ballots. The returning officer stated a number of times during his evidence that the numbers of ballots supplied that were reported on certain Statements of the Vote did “not make any sense” because the numbers were not a multiple of 50. The Statements of the Vote that were shown to the returning officer on this point include those for polls 107 (177 ballots supplied), 611 (1,359 ballots supplied) and 612 (1,019 ballots supplied). The returning officer added that he was confident that at least some of these numbers were wrong, notably the 177 number for poll 107. I note that other Statements of the Vote in the materials report a number of ballots supplied that is not a multiple of 50, including polls 62 (114), 100 (502), 601 (1183) and 609 (846). Again, this strongly suggests that some ballots were not counted or incorrectly counted.

[15] In light of the foregoing, I find that it appears that an election officer has incorrectly counted or rejected any ballots. I agree with and adopt the reasoning of Rothery J. in Koloski set out in paragraph 10 above with respect to incorrect counting of unused ballots. Section 283(3) of the Act requires election officers to count not only the votes cast, but all ballots, and section 301(2)(a) provides that a judicial recount shall take place if it appears that an election officer has incorrectly counted or rejected any ballots [emphasis added]. As stated in the case law reviewed above, the legislative framework for a judicial recount is based on the accuracy of the counting process. When numbers do not balance on a Statement of the Vote and ballots are not accounted for, the precision and accuracy of all the numbers reported on the Statement of the Vote are put in issue. As stated by Rothery J., without a recount, it will never be known whether the mistakes are mistakes in counting the number of unused ballots or some other counting mistakes.

[16] Counsel for Ms. Dzerowicz argued that Koloski and Maynard should be reconsidered, and that the words “any ballots” in subsection 301(2)(a) of the Act should be interpreted as not including spoiled and unused ballots, but only “adjudicated ballots”, i.e. votes cast for a candidate (be they valid or rejected). In his view, a judicial recount cannot address issues such as ballots that are not accounted for or other issues that do not relate to the number of votes cast for a candidate, and these issues can be addressed through other avenues, such as an application to contest the election.

[17] Counsel for Ms. Dzerowicz candidly admitted that he had advanced this position in Maynard and that it was rejected. Justice Daley stated the following in paragraphs 36 and 37:

It was urged on behalf of the respondent that the only significant information to be considered on the statement of the vote is the actual number of votes cast for each candidate. It was submitted that in determining whether a DRO has incorrectly counted ballots, I need not consider the reconciliation of all ballots as outlined in each statement of the vote. It was suggested that it is not part of the evaluation to determine if the spoiled, rejected and unused ballots have all been accounted for.

I disagree with this submission. The preparation of the statement of the vote by the DRO calls for the use of the prescribed form, which outlines the recording of the votes cast in accordance with s. 283(3), and in particular s. (d) which requires that the DRO ascertain that the ballots provided by the RO have all been accounted for.

[18] To buttress the arguments he raised in Maynard, counsel for Ms. Dzerowicz further argued that section 287 of the Act does not require an election officer to record the number of unused ballots on the Statement of the Vote, but only the number of votes in favour of each candidate and the number of rejected ballots. He pointed out that subsection 283(3)(c) only requires an election officer to indicate the number of unused ballots on the envelope supplied for this purpose.

[19] There are two issues with this argument. First, as pointed out by Daley J. in Maynard, section 287 of the Act states that an election officer shall prepare a Statement of the Vote in the prescribed form. The prescribed form requires an officer to include the number of unused ballots, and various other numbers and totals. Second, my view is that the manner in which the number of unused ballots is to be reported (on an envelope vs. in the Statement of the Vote) is irrelevant for the purposes of subsection 301(2)(a). If an election officer has incorrectly counted any ballots, the test for a judicial recount is met, and there is a clear requirement to count unused ballots in section 283(3)(c). Thus, like Justice Daley in Maynard, I reject this position.

[20] Counsel for Ms. Dzerowicz also argued that there should be a higher threshold for the granting of a judicial recount. He stated that while there may have been some errors and a certain level of confusion, lack of understanding and sloppiness in the completion of some Statements of the Vote, this did not warrant the use of all the resources required for a judicial recount. He submitted that the discrepancies were very small (often one or two votes) and/or there were likely explanations for some of the issues raised with respect to the Statements of the Vote (e.g. confusion between rejected and spoiled ballots).

[21] In my view, imposing a higher threshold would be contrary to the language of section 301 the Act and how it has been consistently interpreted for more than 15 years. It is open to Parliament to amend the wording of subsection 301(2) if it wants to raise the threshold for a judicial recount, impose a materiality threshold, or limit the kind of counting errors to be considered to certain types of ballots instead of “any ballots”. In the absence of any amendments, the applicable threshold is a low one, as set out in subsection 301(2) of the Act and interpreted in the case law.

Conclusion

[22] As stated above, the Application for a judicial recount of all of the ballots returned by election officers or the Chief Electoral Officer in Davenport was granted at the end of the hearing on October 5, 2021.

[23] The costs of the Application are reserved to the conclusion of the recount.

[24] A case conference was held with counsel for the Applicant and the Respondents on October 6, 2021. Following the case conference, and on consent of the parties, I ordered that the recount take place at 501 Alliance Avenue, Toronto, Ontario starting on Tuesday, October 12, 2021 at 9 a.m. so as to give sufficient time to the parties to recruit the necessary staff and volunteers and make all the necessary arrangements.

Vermette J.

Released: October 7, 2021