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Elections - Municipal Cases. Bonesteel et al. v. Lambton Shores
In Bonesteel et al. v. Lambton Shores (Div Ct, 2021) the Divisional Court considered an appeal of a Superior Court challenge to a municipal election:The Voters’ List and the Clerk’s Duties
[19] Sections 11(1), 11(2) and 12 of the MEA outline the role of a municipal clerk in a municipal election:Duties of clerk
11 (1) The clerk of a local municipality is responsible for conducting elections within that municipality, subject to the following exceptions:
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(2) Responsibility for conducting an election includes responsibility for,
(a) preparing for the election;
(b) preparing for and conducting a recount in the election;
(c) maintaining peace and order in connection with the election; and
(d) in a regular election, preparing and submitting the report described in subsection 12.1 (2). 1996, c. 32, Sched., s. 11 (2); 2009, c. 33, Sched. 21, s. 8 (7).
Powers of clerk
12 (1) A clerk who is responsible for conducting an election may provide for any matter or procedure that,
(a) is not otherwise provided for in an Act or regulation; and
(b) in the clerk’s opinion, is necessary or desirable for conducting the election. 1996, c. 32, Sched., s. 12 (1). [20] Sections 19(1) and 19(1.1) of the MEA describe the preliminary list:Preliminary list
19 (1) In the year of a regular election, the Municipal Property Assessment Corporation shall prepare a preliminary list for each local municipality and deliver it to the clerk. 2009, c. 33, Sched. 21, s. 8 (9).
Preliminary list
(1) The Chief Electoral Officer shall prepare and maintain a preliminary list for each local municipality and make it available to the clerk. 2020, c. 23, Sched. 4, s. 4 (1).
Deadline
(1.1) The preliminary list must be delivered to the clerk no later than the following date:
1. The date agreed upon by the clerk and the Municipal Property Assessment Corporation, which must be a date earlier than September 1.
2. If no date is agreed upon, the date prescribed by the Minister.
3. If no date is agreed upon or prescribed, July 31. 2009, c. 33, Sched. 21, s. 8 (9). [21] Sections 22 and 23(1) of the MEA deal with corrections to the preliminary list:Correction of errors
22 (1) The clerk may correct any obvious error in the preliminary list and shall notify the Municipal Property Assessment Corporation of the corrections. 1996, c. 32, Sched., s. 22; 2006, c. 33, Sched. Z.3, s. 18 (3).
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(2) For the purposes of subsection (1), the clerk may use any information that is in the local municipality’s custody or control. 2009, c. 33, Sched. 21, s. 8 (11).
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(3) Information in the local municipality’s custody or control that is used by the clerk for the purposes of subsection (1) is deemed to have been collected for the purpose of correcting errors in the preliminary list. 2009, c. 33, Sched. 21, s. 8 (11).
Voters’ list
23 (1) The preliminary list, as corrected under section 22, constitutes the voters’ list. 1996, c. 32, Sched., s. 23 (1). [22] Section 24 of the MEA describes the process whereby an individual can seek to make a change to the voters’ list. Section 25 of the MEA provides that deceased persons may be removed from the voters’ list and section 26 of the act provides that a municipal clerk’s decisions are final as regards section 24 and 25.
Jurisdiction of the Courts
[23] An individual may make an application to the Superior Court of Justice per s. 83(1) of the MEA which sets out the available remedies:Application
83 (1) A person who is entitled to vote in an election may make an application to the Superior Court of Justice requesting that it determine,
(a) whether the election is valid;
(b) whether a person’s election to an office in the election is valid;
(c) if a person’s election to an office is not valid, whether another person was validly elected or is entitled to the office;
(d) if an election is not valid or a person’s election to an office is not valid, whether a by-election should be held. 1996, c. 32, Sched., s. 83 (1); 2002, c. 17, Sched. D, s. 34 (1). Irregularities
[24] Sections 83(6) and 83(7) of the MEA limits the ability of the court to invalidate an election:Effect of procedural irregularities
(6) The 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. 1996, c. 32, Sched., s. 83 (6).
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(7) Clause (6) (a) applies to the following irregularities:
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.
5. Repealed: 2020, c. 26, Sched. 2, s. 9. [25] The courts have interpreted these sections and others like them. In Opitz v. Wrzesnewskyj, 2012 SCC 55 at para 24, “irregularities” were defined as “serious administrative errors that are capable of undermining the electoral process - the type of mistakes that are tied to and have a direct bearing on a person's right to vote.”[1]
[26] In Cusimano v. Toronto (City), 2012 ONCA 907 at paras 22 and 25, the Ontario Court of Appeal stated that sections 83(6) and 83(7) of the MEA circumscribe a court’s ability to invalidate an election based upon irregularities:Section 83(1) permits a person who is entitled to vote in an election to contest the validity of that election. The person may make an application to the Superior Court of Justice for a determination of whether an election is valid and, if it is not, whether a by-election should be held. The MEA does not provide any specific guidelines indicating when it is appropriate for a judge to invalidate an election. However, by including s. 83(6), the legislature has seen fit to restrict a judge's discretion in cases of procedural irregularities.
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Together, ss. 83(6) and (7) prevent a court from invalidating an election that was conducted in accordance with the principles of the MEA, where the procedural irregularities did not affect the result. In other words, s. 83(6) amounts to a saving provision for elections in which certain specified irregularities occurred when those irregularities did not affect the outcome or integrity of the electoral process. [27] At para. 45 of its judgment, the Ontario Court of Appeal in Cusimano described the magnitude an irregularity must achieve in order for a court to invalidate an election:[Dambrot J., sitting as a judge of the Divisional Court, the court from which the appeal in Cusimano was heard] then dealt with whether the election could nonetheless be saved under s. 83(6) - whether it could be said that the result had not been affected by the irregularities and that the election had been conducted in accordance with the principles of the MEA. Dambrot J.'s description of s. 83(6), at para. 62 of the Divisional Court's reasons, bears repeating here:... [Section] 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 a question whether the tabulated vote actually reflects the will of the electorate. Appeals
[28] Section 86 of the MEA governs appeals:Appeal
86 (1) An order made under subsection 83 (1) may be appealed to the Divisional Court. 1996, c. 32, Sched., s. 86 (1).
Power of 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. 1996, c. 32, Sched., s. 86 (2).
New hearing
(3) If the Divisional Court orders a new hearing,
(a) it may order that the hearing be held by the judge who held the original hearing, or by another judge of the General Division; and
(b) unless the Divisional Court orders otherwise, the order made on the new hearing may be appealed under subsection (1) as if it had been the first hearing. 1996, c. 32, Sched., s. 86 (3).
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