Cusimano v. Toronto (City), 2011 ONSC 4768

• Judge: Lederman, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: August 05, 2011
• Jurisdiction: Ontario
• Citations: 2011 ONSC 4768;(2011), 282 O.A.C. 274 (DC)

Cusimano v. Toronto (2011), 282 O.A.C. 274 (DC)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. AU.025

Agustine G. Cusimano (applicant/respondent in appeal) v. City of Toronto (respondent/appellant)

(260/11)

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

(259/11; 2011 ONSC 4768)

Indexed As: Cusimano v. Toronto (City)

Court of Ontario

Superior Court of Justice

Divisional Court

Lederman, J.

August 17, 2011.

Summary:

In a judgment reported [2011] O.T.C. Uned. 2527, the Ontario Superior Court declared the election of a city councillor (Augimeri) and a school board trustee (Payne) invalid due to voting irregularities respecting the City of Toronto's administration of the Voters' List Change Request Form. The city appealed in the Augimeri matter. Payne appealed the decision that her election was invalid. In the Augimeri matter, Augimeri and Saccon (a voter whose vote was not counted) applied under rule 13.01 for leave to intervene in the appeal. The City of Mississauga sought leave to intervene in both matters.

The Ontario Divisional Court, per Lederman, J., granted Augimeri leave to intervene as a party to protect her own interests. She was entitled to file her own Notice of Appeal, present affidavit evidence on limited matters and file a factum. Saccon was granted leave to intervene as a friend of the court to assist the court by way of argument, with leave to file an affidavit upon which Cusimano decided not to cross-examine, to file a factum and to present oral argument not exceeding 30 minutes. The City of Mississauga was granted leave to intervene in both matters as a friend of the court, with leave to file an affidavit upon which Cusimano decided not to cross-examine, to file a factum and to present oral argument not exceeding 30 minutes.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - Augimeri was elected city councillor - Cusimano, the losing candidate applied to invalidate the election for voting irregularities (City of Toronto's fault) respecting the administration of the Voters' List Change Request Form - Augimeri was not named as a party and did not seek to be joined as a party as she was satisfied by City solicitors that the City represented her interests - The application was allowed and the election was invalidated - The City's initial decision was not to appeal, but it subsequently chose to appeal - Augimeri applied under rule 13.01 for leave to intervene on appeal as a party to protect her own interests - The Ontario Divisional Court, per Lederman, J., granted Augimeri leave to intervene as a party - She was entitled to file her own Notice of Appeal, present affidavit evidence on limited matters and file a factum - Augimeri obviously had an interest in the subject matter of the proceeding and would be adversely affected if the appeal were dismissed - Her presence was necessary for the effective and complete adjudication of the issues on appeal - See paragraphs 16 to 26.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - Augimeri was elected city councillor - Cusimano, the losing candidate applied to invalidate the election for voting irregularities (City of Toronto's fault) respecting the administration of the Voters' List Change Request Form (VLCRF) - The City appealed - Saccon was a voter whose name did not appear on the voter's list - After filling out a VLCRF at the polling station, her vote was accepted - After the judgment invalidating the election, Saccon learned that her vote had been discounted - Saccon applied under rule 13.01 to intervene on the appeal - The Ontario Divisional Court, per Lederman, J., granted Saccon leave to intervene as a friend of the court to assist the court by way of argument, with leave to file an affidavit upon which Cusimano decided not to cross-examine, to file a factum and to present oral argument not exceeding 30 minutes - The appeal was public in nature, resulting in greater latitude for intervention - The court stated that "Saccon's participation provides a context of a voter's actual experience with the VLCRF and interaction with election officials at the polling station. It is a perspective different than offered by other parties" - See paragraphs 27 to 34.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - Augimeri was elected city councillor - Cusimano, the losing candidate applied to invalidate the election for voting irregularities (City of Toronto's fault) respecting the administration of the Voters' List Change Request Form (VLCRF) - A school board trustee's election was invalidated for the same reason - The City appealed in the Augimeri matter - The school board trustee appealed the invalidation of his election - The City of Mississauga applied under rule 13.01 for leave to intervene in both matters, arguing that the decision "sets a standard of practice for municipal elections that is impossible to meet and that will adversely impact not just the City of Toronto, but all municipalities across Ontario" - The Ontario Divisional Court, per Lederman, J., granted Mississauga leave to intervene in both matters as a friend of the court, with leave to file an affidavit upon which Cusimano decided not to cross-examine, to file a factum and to present oral argument not exceeding 30 minutes - Mississauga could provide information that could be useful to the court because it ran municipal elections - In particular, Mississauga could address the extent of irregularities in municipal elections and the potential impact of the standard that the Superior Court decision required of municipalities in conducting elections - Thus limited, Mississauga's participation in the appeal would not cause an injustice to the parties - See paragraphs 36 to 39.

Practice - Topic 687

Parties - Adding or substituting parties - Intervenors - Amicus curiae - [See second and third Practice - Topic 685 ].

Practice - Topic 8896

Appeals - Parties - Persons entitled to participate in an appeal - [See all Practice - Topic 685 ].

Cases Noticed:

Halpern et al. v. Wong et al. (2000), 139 O.A.C. 300; 51 O.R.(3d) 742 (Div. Ct.), refd to. [para. 8].

Lafarge Canada Inc. v. Ontario Environmental Review Tribunal et al. (2008), 234 O.A.C. 312 (C.A.), refd to. [para. 10].

R. v. Lepage (1994), 21 C.R.R.(2d) 67 (Ont. Gen. Div.), refd to. [para. 10].

M. v. H. (1994), 20 O.R.(3d) 70 (Gen. Div.), refd to. [para. 11].

Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1990), 74 O.R.(2d) 164 (C.A.), refd to. [para. 12].

R. v. A.M., [2005] O.A.C. Uned. 431 (C.A.), refd to. [para. 41].

Carsons' Camp Ltd. v. Municipal Property Assessment Corp. et al., 2008 CarswellOnt 9463 (C.A.), refd to. [para. 42].

Human Rights Commission (Ont.) et al. v. Christian Horizons (2008), 245 O.A.C. 193 (Div. Ct.), refd to. [para. 43].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 13.01, rule 13.02 [para. 5].

Counsel:

Lorne Honickman, for the applicant/respondent in appeal, Agustine G. Cusimano;

Tim Carre, for the respondent/appellant, City of Toronto;

Jullian D. Heller and Neil Foley, for the moving party, Maria Augimeri;

Caroline Jones and Michael Fenrick, for the moving party, Gloria Saccon;

Andrea Wilson-Peebles, for the moving party, City of Mississauga.

These applications were heard on August 5, 2011, at Toronto, Ontario, before Lederman, J., of the Ontario Divisional Court, whose following judgment was released on August 17, 2011.