Cusimano v. Toronto (City) et al., 2011 ONSC 7271

• Judge: Jennings, Dambrot and Sproat, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 19, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONSC 7271;(2011), 287 O.A.C. 355 (DC)

Cusimano v. Toronto (2011), 287 O.A.C. 355 (DC)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JA.009

Agustine G. Cusimano (applicant/respondent) v. City of Toronto and Maria Augimeri (respondents/appellants in appeal) and Gloria Saccon and City of Mississauga (intervenors)

Michael Sullivan (applicant/respondent) v. City of Toronto and Stephanie Payne (respondents/appellants) and City of Mississauga (intervenor)

(260/11; 259/11; 2011 ONSC 7271)

Indexed As: Cusimano v. Toronto (City) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Jennings, Dambrot and Sproat, JJ.

December 19, 2011.

Summary:

Two defeated candidates in a Toronto municipal and school board election applied for 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.

The Ontario Superior Court granted the declaration sought. The City of Toronto and the two winning candidates appealed. They were joined by two interveners: the City of Mississauga and a voter.

The Ontario Divisional Court allowed the appeal and declared the election valid.

Elections - Topic 2088

Voters - Voters lists - Same-day registrants - To be added on the voting list on voting day at a Toronto municipal and school board election, electors had to complete a form called "Voters List Change Request Form on Voting Day" (VLCRF) - Section 24(3) of the Municipal Elections Act required the City clerk or her delegates to endorse the VLCRF if they were satisfied that the elector was entitled to have the requested change made - The Ontario Divisional Court, with respect to what constituted endorsement, ruled as follows: "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) [...] and the City's Voting Procedure and issuing a ballot to the elector pursuant to s. 52(1) [...] are each strong evidence that the application was accepted, but they do not amount to endorsement" - See paragraphs 52 to 56.

Elections - Topic 7902

Controverted elections - Grounds for invalidity - Substantial and influential irregularities - Two defeated candidates in a Toronto municipal and school board election argued that the election they lost, by 89 and 56 votes respectively in City Ward 9 and school board Ward 4, was invalid by reason of irregularities in the procedure for adding persons to the voters' list at polling stations - The "most significant" irregularity was that persons were added to the voters' list, and voted, when neither the City clerk nor any of her delegates had endorsed the "Voters List Change Request Form on Voting Day" (VLCRF) as required by s. 24(3) of the Municipal Elections Act (Ont.) - The VLCRF required a voter to provide certain information pertinent to the entitlement to vote, and then to make a declaration that they were "a Canadian citizen, at least 18 years old on voting day, and entitled to be an elector" - In City Ward 9, 11 VLCRFs did not have the declaration - The declaration was missing from 12 VLCRFs in school board Ward 4 - The Ontario Divisional Court, on appeal, declared the election valid - The failure to endorse was an "irregularity" pursuant to the "very broad ... sweep" of s. 83(7) in that it was a non-compliance with a provision of the Act, a non-compliance with a procedure made, passed or established under the Act, dealing with voting, and a mistake in the use of forms - The "very broad saving provision" of s. 83(6) applied to validate the election where the s. 83(7) irregularity described above did not affect the result of the election and the evidence indicated that the election was conducted in accordance with the principles of the Act - See paragraphs 46 to 116.

Elections - Topic 7915

Controverted elections - Grounds for invalidity - Curing of - [See Elections - Topic 7902 ].

Elections - Topic 7915

Controverted elections - Grounds for invalidity - Curing of - Section 83(6) of the Municipal Election Act (Ont.) provided that a court "shall not determine an election to be invalid" if an irregularity described in s. 83(7) did not affect the result of the election and the election was conducted in accordance with the principles of the Act - The Ontario Divisional Court discussed s. 83(6) and stated as follows: (1) the general regularity of the election was to be presumed absent evidence to the contrary; (2) simply applying an arithmetic formula was not enough: a court had to examine the evidence to ascertain the true effect of the irregularities; (3) the principles of the Act were not explicitly set out but had to be inferred from its provisions - Those principles included the following: (a) secrecy and confidentiality of the voting process; (b) fairness and impartiality; (c) accessibility to voters; (d) maintaining the integrity of the process; (e) certainty that the results reflected the votes cast; and (f) fair and consistent treatment of voters and candidates - Finally, the court indicated that compliance with the mandatory provisions of the Act should not be adopted as a principle of it - See paragraphs 75 to 114.

Elections - Topic 8144

Controverted elections - Evidence and proof - Burden of proof - Two defeated candidates in a Toronto municipal and school board election applied for 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 - A dispute arose about where the onus lay to show whether or not the irregularity affected the result - After indicating that an applicant had the onus to establish that there was an irregularity, the Ontario Divisional Court ruled that the applicant here "bore the burden to show, on a balance of probabilities, that any irregularity found to exist affected the result of the election" - See paragraphs 70 to 74.

Elections - Topic 8145

Controverted elections - Evidence and proof - Affidavits - Two defeated candidates in a Toronto municipal and school board election applied for 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 - They were successful at first instance - An appeal was brought - One of the winning candidates was added as a party - In an interlocutory ruling, the Ontario Divisional Court allowed her to file affidavit material but declined to admit that part of the material relating to efforts made on her behalf to determine the eligibility of voters by canvassing them and having them sign forms - At the ruling on the merits, the Ontario Divisional Court explained that the evidence it had declined to admit was hearsay, which raised concerns about necessity and reliability - The court stated that: "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" - See paragraphs 38 to 43.

Cases Noticed:

O'Brien v. Hamel (1990), 73 O.R.(2d) 88 (Div. Ct.), consd. [para. 32].

Cusimano v. Toronto (City) (2011), 282 O.A.C. 274 (Div. Ct.), refd to. [para. 39].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 50].

Fulawka v. Bank of Nova Scotia, [2011] O.J. No. 2561; 2011 ONSC 530 (Div. Ct.), consd. [para. 50].

Camsell v. Rabesca (1987), 4 A.C.W.S. (3d) 272 (N.W.T.S.C.), consd. [para. 63].

Reaburn v. Lorje (2000), 190 Sask.R. 235; 95 A.C.W.S.(3d) 655; 2000 SKQB 81, consd. [para. 64].

Stoddart v. Owen Sound (Town) (1912), 8 D.L.R. 932 (H.C.J.), refd to. [para. 71].

Thwaites v. Georgian Bay (Township) et al., [2001] O.T.C. 539 (S.C.), consd. [para. 71].

Sinclair v. Owen Sound (1906), 12 O.L.R. 488 (Div. Ct.), aff'd (1906), 13 O.L.R. 447 (C.A.) and (1907), 39 S.C.R. 236, refd to. [para. 72].

Fennessy v. Wade and Plaunt, [1939] O.R. 537 (H.C.J.), refd to. [para. 72].

Thwaites v. Georgian Bay (Township), [2001] O.J. No. 2847 (S.C.), refd to. [para. 72].

Blanchard v. Cole, [1950] 4 D.L.R. 316 (N.S.C.A.), consd. [para. 83].

R. v. Tridico (G.) et al. (2010), 261 O.A.C. 93 (C.A.), refd to. [para. 100].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, consd. [para. 102].

Montgomery v. Balkissoon et al., [1998] O.A.C. Uned. 161; 38 O.R.(3d) 321 (C.A.), consd. [para. 105].

Di Biase v. Vaughan (City) (2007), 43 M.P.L.R.(4th) 287, consd. [para. 106].

Goldie v. Brock (Township) et al., [2010] O.T.C. Uned. 6930 (S.C.), refd to. [para. 107].

Statutes Noticed:

Municipal Elections Act, S.O. 1996, c. 32, sect. 24(3) [para. 11]; sect. 83(6) [para. 26]; sect. 83(7) [para. 27].

Counsel:

( 260/11 )

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;

( 259/11 )

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.

This appeal was heard at Toronto, Ontario, on September 19 and 20, 2011, by Jennings, Dambrot and Sproat, JJ., of the Ontario Divisional Court. The following decision of the Divisional Court was delivered by Dambrot, J., and released on December 19, 2011.