Cusimano v. Toronto (City)

Cusimano v. Toronto (City)

Under the MEA s.83(6) and the substantive approach endorsed in Opitz, the omission of election officials' signatures on the 275 VLCRFs was a procedural irregularity that did not in itself invalidate the votes; having considered the totality of the evidence (voter declarations, election official affidavits and checkmarks indicating identification was checked), the challenger failed to prove on a balance of probabilities that persons not entitled to vote cast those ballots or that the irregularities affected the result; therefore the election is valid and the Divisional Court's decision is upheld.

Citation
2012 ONCA 907
Parties
Applicant / Appellant / Respondent by Way of Cross Appeal: Agustine G. Cusimano; Respondent / Respondent by Way of Cross Appeal: City of Toronto; Respondent / Appellant by Way of Cross Appeal: Maria Augimeri
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
24 December 2012
Procedural Posture
Civil (municipal Election Contest) / Appeal and Cross Appeal to Court of Appeal on Validity of Ward 9 Municipal Election; Appeal From Divisional Court
Outcome
Appeal dismissed; Divisional Court judgment allowing appeal and declaring Ward 9 election valid is upheld
Legal Topics
Voters' List Change Request Forms (vlcrfs), Procedural Irregularities, Right to Vote, Saving Provision S.83(6) of the MEA, Substantive Vs Procedural Approach, Magic Number Test, Burden of Proof, Allocation of Costs
Source Language
English
Election Law Municipal Law Administrative Law Statutory Interpretation Civil Costs Voters' List Change Request Forms (vlcrfs) Procedural Irregularities Right to Vote +5 more

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Parties

Agustine G. Cusimano

Applicant / Appellant / Respondent by Way of Cross Appeal

City of Toronto

Respondent / Respondent by Way of Cross Appeal

Maria Augimeri

Respondent / Appellant by Way of Cross Appeal

Procedural Posture

Civil (municipal Election Contest) / Appeal and Cross Appeal to Court of Appeal on Validity of Ward 9 Municipal Election; Appeal From Divisional Court

Legal Issues

  1. 1 Whether omission of election official's signature on 275 VLCRFs invalidates the votes they represent
  2. 2 Whether, under s.83(6) MEA and Opitz, the procedural irregularities 'affected the result of the election'
  3. 3 What evidence may be considered to establish entitlement to vote (voter declarations, election official affidavits, checkmarks)

Ratio Decidendi

Under the MEA s.83(6) and the substantive approach endorsed in Opitz, the omission of election officials' signatures on the 275 VLCRFs was a procedural irregularity that did not in itself invalidate the votes; having considered the totality of the evidence (voter declarations, election official affidavits and checkmarks indicating identification was checked), the challenger failed to prove on a balance of probabilities that persons not entitled to vote cast those ballots or that the irregularities affected the result; therefore the election is valid and the Divisional Court's decision is upheld.

Court Disposition

Appeal dismissed; Divisional Court judgment allowing appeal and declaring Ward 9 election valid is upheld

Orders

  • Declare Ward 9 election valid and set aside application judge's order for a by‑election
  • Restore costs awarded to Cusimano by the application judge: $65,000 to be paid by the City of Toronto (partial indemnity)