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COURT
FILE NO: 30/01 SUPERIOR COURT OF JUSTICE B E T W E E N: JERRY BRANDT, DONALD CAMERON, ) Donald Cameron, on his own behalf LORI HAGGART, JILL KULCHAR [Applicants]) and on behalf of the other Applicant - and - ) CORPORATION OF THE TOWNSHIP OF ) E. Marshall Green, for the ARMOUR, JOANNE CRIPPS - ) Respondent, Corporation of the COUNCILLOR, TOWNSHIP OF ARMOUR, ) Township of Armour, Jack Lesser for GARY MCFARLANE - COUNCILLOR, ) the Respondent, Three Mile Lake TOWNSHIP OF ARMOUR, FRANK GILL - ) Community Club, A. J. Campbell for REEVE, TOWNSHIP OF ARMOUR, AL ) the Respondent, the Near North BOTTOMLEY - TRUSTEE, NEAR NORTH ) District School Board, Daniel J. DISTRICT SCHOOL BOARD, THREE ) Wyjad for the Respondents, Joanne MILE LAKE COMMUNITY CLUB INC., ) Cripps, Gary McFarlane and Frank and NEAR NORTH DISTRICT SCHOOL [Respondents]) Gill BOARD ) BOISSONNEAULT, J. [1] This is an application for an order under section 83 of the Municipal Elections Act, 1996, c. 32 to invalidate the Municipal Election of the Township of Armour held on November 13, 2000, along with other related relief claimed. Although a new election is requested, the Applicants have specifically put in issue the elections of the Reeve, Frank Gill, and two of four Councillors, Joanne Cripps and Gary McFarlane. [2] The Application is also for an order to invalidate the election of Al Bottomley in Area 6 of the Near North District School Board as School Board Trustee under section 218 of the Education Act. [3] Further, an order is sought that a by-election be held in the Township of Armour and the Near North District School Board. [4] I will deal firstly with the Township of Armour Municipal Election. [5] The Applicants' request to invalidate the Municipal Election of the Township of Armour, in the District of Parry Sound, centres around the manner in which proxy votes were cast by a number of electors in the Township who resided along or near Three Mile Lake which is within the Township. The residents of this area incorporated the Three Mile Lake Community Club Inc. in 1983 (the "Club") to advance the interests of owner of property along or near Three Mile Lake. [6] Many of the owners of these properties were seasonal residents and lived, on a permanent basis, out of the jurisdiction of the Township or elsewhere in the Province of Ontario, Canada or the United States. [7] The members of the Club were unhappy in the manner in which the Township was governed. They felt that their political issues and concerns were not being considered fairly. [8] Since Municipal Elections were invariably held in November, it was difficult for seasonal residents of the Three Mile Lake area to vote. [9] Consequently, in the summer of 2000 the Executive of the Club undertook efforts to encourage all their residents to vote for candidates who would be more responsive to their concerns. [10] The Club was aware that many members, who had a right to cast votes, could not travel to the Township of Armour either on election day or on the advanced poll day. [11] The Club, by an initial newsletter, informed its members of their right to vote by proxy and the manner in which they could. The information in this newsletter relating to proxy voting is accurate. A one page instruction sheet with proxy forms was also distributed to the members of the Club and the information contained therein is also accurate where it relates to the mechanics of voting by proxy. [12] In a further newsletter in October 2000 the Club's executive encouraged its members to vote for the following candidates, namely: Frank Gill for mayor Gary McFarlane for councillor Joanne Cripps for councillor [13] The Club took no position in the election of the School Board Trustee. [14] In October 2000 a further newsletter was sent to the Club's members containing the following: "If you cannot come to vote and cannot find someone to vote for you please send your signed proxy form to the Three Mile Lake Community Club at Box 291, Burks Falls, Ontario P0A 1C0." [15] The instruction contained in the October 2000 newsletter from the Club which suggests that sending a signed proxy to the Club without inserting the name of the appointed elector is erroneous. The name of the appointed elector must be filled in at the time the elector making the appointment signs the statement, otherwise the ballot will not be valid. [16] It is my belief, on all the evidence and representations of the parties, that the Club, in suggesting proxy forms be sent without the insertion of the appointed elector, did not act in any dishonest way to circumvent the provisions of the Municipal Act. I accept that the Club did not have an intent to commit an act in contravention of the Act. I conclude that the suggestion to use proxy forms in an unacceptable manner was an honest mistake and created an "irregularity" as contemplated by the Act. Any spurious intention on the part of the Club is dispelled by the overt manner in which it proceeded. There is no evidence that the Club tried to hide its instructions. Any suggestion, as contained in the Application, of criminal wrongdoing is ill advised and baseless. The evidence does not support this proposition. [17] Section 44 (1) of the Ontario Elections Act, 1996 S.O. C. 32 provides for the appointment of a voting proxy. Section 44 (1): A person who is entitled to be an elector in a local municipality may appoint another person who is also so entitled as his or her voting proxy, using the prescribed form. [18] The prescribed Form 3 entitled "Appointment of Voting Proxy" is provided in the Ontario Regulations. The general instructions on the form allow an elector to vote on behalf of one other qualified elector who is not a relative or one or more qualified electors who are relatives using separate proxy forms for each. [19] Form 3 contains three boxes with the following instructions. Box A on the form is designed to provide the pertinent information of the elector making the appointment.
Box B on the form is designed to provide the pertinent information of the elector appointed. A third box with no alphabetical designation is entitled "Statement of Elector Making Appointment". This box, clearly part of Form 3 provides for the actual appointment of the proxy voter. Within the perimeter of this box is a note in bold type stating "the name of the elector appointed must be filled in at the time the elector making the appointment signs the statement". [20] It is argued that the "note" does not form part of Form 3 which is referred to in section 44 (1) of the Act. [21] In my view, the note is clearly part of Form 3 and must be complied with under section 44 (1). The name of the appointee must be inserted on the form at the time the appointor signs the proxy. The instructions contained in the "note" are within the parameters of the third box and form part of the prescribed form as contemplated by section 44 (1) of the Ontario Elections Act. [22] As a result of the Club's newsletter of October 2000, a certain number of invalid proxy votes were cast in that the name of the elector appointed was not inserted as required. [23] The question to determine is whether the Club's actions were a premeditated attempt to knowingly circumvent the provisions of section 44 (1) of the Act by encouraging the wrongful use of proxy voting consequently invalidating the election, or, did the Club's actions and subsequent results constitute an irregularity under section 83 (6) of the Act. [24] As I stated in paragraph 16, I find that the proxy voting as suggested by the Club created irregularities as contemplated in section 83 (7) of the Act. The irregularities were procedural and as a consequence of a wrongful use of Form 3. [25] Section 83 (6) provides that a court shall not determine an election invalid if an irregularity occurred but did not affect the validity of an election. [26] I now turn to the evidence which relates to whether the result of the election was affected by the irregular misuse of the proxy votes. [27] The results of the election of the Township of Armour were as follows: REEVE Frank Gill 415 votes Donald Cameron 263 votes COUNCIL Cripps 418 votes Blakelock 400 votes McFarlane 396 votes Corcoran 322 votes Brandt 310 votes Haggart 266 votes [28] The Ontario Provincial Police conducted an investigation in the possible misuse of proxy votes and their effect. Their report was filed on consent. Their investigation revealed that 94 proxy votes were cast in the election. Of the 94 proxy votes, 30 proxies were family member appointments which they believed to be legitimate appointments. [29] I agree with their presumption a voter wishing to appoint a family member would necessarily appoint a specific voter rather than send the proxy form to the Club without a nominee specified. [30] As the remaining 64 proxy votes, a number of these, which has not been identified, were possibly improperly cast. For the purpose of ascertaining whether this election should be invalidated, I shall assume that all 64 proxy votes were invalidly exercised. I shall deduct 64 votes from all respondents who were elected. The results are as follows, with the original vote tally in bracket and the amended vote tally to the right. REEVE Gill (415) (deducted 64 votes) 351 votes Cameron (263) 263 votes
COUNCIL Cripps (418) (deducted 64 votes) 354 votes Blakelock (400) 400 votes McFarlane (396) (deducted 64 votes) 332 votes Corcoran (322) 322 votes Brandt (310) 310 votes Haggart (266) 266 votes
[31] After the deduction of 64 votes from the respondents who were the Club's suggested choices and the respondents in this application, and probably the only candidates to benefit of the irregular proxy votes cast, the result of the election remains the same as originally counted. [32] I purposely refrained from deducting any votes from the total votes cast for Blakelock or Corcoran as they were not a party in this application and presumably did not benefit from the irregular proxy votes. Also, an order is not specifically sought to invalidate their election in paragraph 4 of the Application. [33] I also refrained from adding any votes to the total votes cast for the applicants Brandt, Cameron and Haggart. An irregular vote by proxy will cause that candidate to lose a vote. That vote cannot be added to the vote totals of any applicant considering the manner in which the irregularity occurred. The irregular votes occurred as a result of a campaign by the Club directed to specific candidates who presumably were the only ones who benefited therefrom. [34] As stated above the casting of irregular proxy votes was an irregularity. Section 83 (6) of the Act provides that the Court shall not determine an election to be invalid if an irregularity did not affect the result of the election. An order does not follow that the Municipal Election be invalidated or that any elected candidate be invalidated. A by-election is not required to be held. An order for a continued investigation by the O.P.P. is not required. [35] Consequently the Election is declared valid and the following have been elected to the following positions: Reeve: Gill Council: Cripps Blakelock McFarlane Corcoran NEAR NORTH DISTRICT SCHOOL BOARD [36] I now turn to that part of the Application dealing with the request by Jill D. Kulchar for an order to invalidate the election of Al Bottomley as School Board Trustee in Area 6 of the Near North District School Board. [37] Bottomley and Kulchar were the only two candidates in Area 6. Bottomley defeated Kulchar by 79 votes. [38] Kulchar maintains that certain voting irregularities in Area 6 affected the outcome of the election between Bottomley and herself. [39] As to this part of the Application, I could find no evidence to support the proposition that the possible tainted proxy votes, the subject matter of the Three Mile Lake controversy, had any effect on the election of the School Trustee in Area 6 and as such has no impact in determining the validity of this election. [40] The irregularities complained of by Kulchar seems to be the erroneous inclusion of voters names on voters lists in areas that they could not vote and that in several instances there was multiple voting. [41] The Near North District School Board consists of 6 Areas. Area 6 includes territories with and without municipal organization. Ballot kits were sent to electors who resided in territories without municipal organization. Elections for these territories were conducted by way of mail in ballot. Area 6 also contained nine organized municipalities, including the Township of Joly which oversaw the election of the territories without municipal organization. [42] Ballots were sent by error for Area 6 candidates to electors in Area 5. I am satisfied that proper corrective measures were taken by Election Officials. The Returning Office in the Township of Joly was instructed not to accept any ballots sent to electors who resided in Area 5 because they were not listed in Area 6. The errors in Area 5 were few and greatly lesser in number than the 79 votes by which Bottomley defeated Kulchar. They had no impact on the eventual results. [43] Ballots for candidates (Kulchar and Bottomley) were mailed to electors in Area 1 without municipal organization. These electors were those who resided in, owned or rented residential property in Area 6. Those who chose to vote mailed their ballots to the Clerk of the Township of Joly. [44] Kulchar alleges in paragraph 4 of her affidavit that multiple voting occurred in Areas 1 and 6. This assertion is not supported by any evidence which would be admissible in these proceedings. There is no evidence offered as to the number of votes which allegedly affected the election. I cannot conclude, on this evidence, that there was in fact multiple voting, which would have been an irregularity at best, nor can I conclude that these irregularities, if they exist, would have affected the outcome of the election in that Kulchar was defeated by 79 votes and there is no evidence that irregular votes, if any, would have approached the figure of 79. I conclude that if there were any irregular votes cast, sufficient numbers have not been proved to even slightly affect the proper election of Al Bottomley. [45] I therefore conclude that the election of Al Bottomley as School Board Trustee is valid. [46] This Application to invalidate the Municipal Election of the Township of Armour and to invalidate the election of the School Board Trustee in Area 6 are both dismissed as well as all other relief sought in the Application. [47] Costs are to be spoken to by telephone conference to be arranged by Mr. Green and myself within 15 days. Original signed by J. BOISSONNEAULTReleased: October 15, 2001 |