Concerning my re-election to Oshawa Council and the very close official election result (a narrow 8 vote count difference over my closest competitor): —
After being sworn into Council during the morning session Tuesday November 15, 2022, at the afternoon session (following the time-sensitive motion I made was approved concerning Oshawa objecting to the Province's plan to carve lands out of the Greenbelt) Council proceeded to deal with the correspondence on the agenda from the law firm Aird & Berlis.
Aird & Berlis lawyer, John Mascarin, representing my competitor in the Ward 1 City Councillor election had written November 9th requesting a manual vote recount under section 57 of the Ontario Municipal Elections Act. Note that section 57 (1) states:
"Within 30 days after the clerk’s declaration of the results,
(a) the council of a municipality may pass a resolution requiring a recount of the votes cast".
Mr. Mascarin also attended with his client and made an in-person delegation and answered questions from Councillors.
The City Clerk when answering some Councillors' questions, explained that the 93 ballots that were rejected or declined and which were referred to in the Aird & Berlis correspondence, were city-wide and 50 of them were declined by the voters and 43 were ballots that the tabulator rejected.
The Clerk said that after several attempts when a tabulator is unable to process a ballot -under most circumstances the voter is present and is notified there is a problem and then given the opportunity to fix their ballot or fill out a new one. However, in the case of the 43 ballots rejected across-the-City on Oct 24, 2022, it seems some of the voters may not have been available for this option (The Clerk added that this occurrence sometimes happens at Senior Long Term Care residences.)
According to the Clerk, the total rejected ballots in Ward 1 were 7 of the total 43 rejected ballots.
The motion introduced to approve the requested vote recount (see picture below) was passed 8 Yes, 1 No (Councillor Nicholson) and 2 members making Declarations of Interest and therefore not able to vote, comment or ask questions (Councillor Neal who said the reason for his Declaration was that the husband of the candidate who was requesting the recount has been the Neal family's doctor; and me...I made a declaration of interest because the matter involves the legitimacy of my election to Council.)
The Council approved recount will be processed again through the tabulators, although Mr. Mascarin's letter originally requested a manual recount. The City’s legal counsel and the Clerk explained Council ordering a manual recount would be in contravention of the Municipal Elections Act Section 60 (1).
MUNICIPAL ELECTIONS ACT
"60 (1) A recount under section 56, 57 or 58 shall be conducted in the same manner as the original count, whether manually or by vote-counting equipment. 2016, c. 15, s. 41 (1)."
and
60 (2) A recount shall be conducted in accordance with the prescribed rules, subject to subsection (3). 1996, c. 32, Sched., s. 60 (2)
60 (3) Despite subsection (1), if the judge who orders a recount under section 58 is of the opinion that the manner in which the original count was conducted caused or contributed to the doubtful result, he or she may, in the order, provide that the recount shall be held in a different manner and specify the manner. 1996, c. 32, Sched., s. 60 (3); 2016, c. 15, s. 41 (2).
ONTARIO REGULATION 101/974.
"The following rules are prescribed for the purpose of subsection 60 (2) of the Act:
2. The clerk shall open the ballot boxes and count,
i. in the case of a recount in an election for an office, the number of votes for each candidate who is subject to the recount under section 56, 57, 58 or 59 of the Act,
3. The clerk shall reject from the count all ballots and votes in a ballot that do not comply with the rules set out in subsection 3 (2)"
ONTARIO REGULATION 101/974
"3. (1) The rules set out in subsection (2) are prescribed for the purpose of section 54 of the Act (rejection of ballots). O. Reg. 326/16, s. 2.
(2) The deputy returning officer shall reject from the count,
(a) all votes in a ballot, if the ballot,
(i) was not supplied by the deputy returning officer, or
(ii) contains writing or marks that may identify the elector, or is torn, defaced or otherwise dealt with by the elector in a way that may identify him or her;
(b) all votes in a ballot for an office, if votes have been cast for more candidates for the office than are to be elected;"
Today the Clerk notified Council that the recount will be conducted on Thursday, November 24, 2022.
Mr. Mascarin did say on Tuesday that if his client is not satisfied, she may appeal to the Court. See video clip from Nov 15 Council meeting below.
It is a process open to her which involves her making an application to the Superior Court under Section 58 of the Municipal Elections Act.
"58 (1) A person who is entitled to vote in an election and has reasonable grounds for believing the election results to be in doubt may apply to the Superior Court of Justice for an order that the clerk hold a recount.
(3) If satisfied that there are sufficient grounds for it, the court shall make an order requiring the clerk to hold a recount of the votes cast for all or specified candidates, on a by-law, or for all or specified answers to a question, and shall give the clerk a copy of the order as soon as possible.
(6) A request for a recount due to problems related to voting and vote-counting equipment may be made only under this section."
So, this matter may still take a while to conclude.
*In attendance at the Oshawa Nov 15, 2022 Council meeting and speaking to Council were City lawyer Sam Yoon, Blaney McCurtry lawyer Jack Siegel who was retained by the City to provide advice in this matter, and Aird & Berlis lawyer John Mascarin for his client Theresa Corless. Interestingly: Siegel and Mascarin represented former Councillors Mary Novak and Joe Neal on a court application concerning a recount of the Clarington ballots in the 2014 election where they were 3 votes apart:
www.canlii.org/en/on/onsc/doc/2015/2015onsc342/2015onsc342.html?searchUrlHash=AAAAAQAWYnJvY2sgZWxlY3Rpb24gcmVjb3VudAAAAAAB&resultIndex=4
After being sworn into Council during the morning session Tuesday November 15, 2022, at the afternoon session (following the time-sensitive motion I made was approved concerning Oshawa objecting to the Province's plan to carve lands out of the Greenbelt) Council proceeded to deal with the correspondence on the agenda from the law firm Aird & Berlis.
Aird & Berlis lawyer, John Mascarin, representing my competitor in the Ward 1 City Councillor election had written November 9th requesting a manual vote recount under section 57 of the Ontario Municipal Elections Act. Note that section 57 (1) states:
"Within 30 days after the clerk’s declaration of the results,
(a) the council of a municipality may pass a resolution requiring a recount of the votes cast".
Mr. Mascarin also attended with his client and made an in-person delegation and answered questions from Councillors.
The City Clerk when answering some Councillors' questions, explained that the 93 ballots that were rejected or declined and which were referred to in the Aird & Berlis correspondence, were city-wide and 50 of them were declined by the voters and 43 were ballots that the tabulator rejected.
The Clerk said that after several attempts when a tabulator is unable to process a ballot -under most circumstances the voter is present and is notified there is a problem and then given the opportunity to fix their ballot or fill out a new one. However, in the case of the 43 ballots rejected across-the-City on Oct 24, 2022, it seems some of the voters may not have been available for this option (The Clerk added that this occurrence sometimes happens at Senior Long Term Care residences.)
According to the Clerk, the total rejected ballots in Ward 1 were 7 of the total 43 rejected ballots.
The motion introduced to approve the requested vote recount (see picture below) was passed 8 Yes, 1 No (Councillor Nicholson) and 2 members making Declarations of Interest and therefore not able to vote, comment or ask questions (Councillor Neal who said the reason for his Declaration was that the husband of the candidate who was requesting the recount has been the Neal family's doctor; and me...I made a declaration of interest because the matter involves the legitimacy of my election to Council.)
The Council approved recount will be processed again through the tabulators, although Mr. Mascarin's letter originally requested a manual recount. The City’s legal counsel and the Clerk explained Council ordering a manual recount would be in contravention of the Municipal Elections Act Section 60 (1).
MUNICIPAL ELECTIONS ACT
"60 (1) A recount under section 56, 57 or 58 shall be conducted in the same manner as the original count, whether manually or by vote-counting equipment. 2016, c. 15, s. 41 (1)."
and
60 (2) A recount shall be conducted in accordance with the prescribed rules, subject to subsection (3). 1996, c. 32, Sched., s. 60 (2)
60 (3) Despite subsection (1), if the judge who orders a recount under section 58 is of the opinion that the manner in which the original count was conducted caused or contributed to the doubtful result, he or she may, in the order, provide that the recount shall be held in a different manner and specify the manner. 1996, c. 32, Sched., s. 60 (3); 2016, c. 15, s. 41 (2).
ONTARIO REGULATION 101/974.
"The following rules are prescribed for the purpose of subsection 60 (2) of the Act:
2. The clerk shall open the ballot boxes and count,
i. in the case of a recount in an election for an office, the number of votes for each candidate who is subject to the recount under section 56, 57, 58 or 59 of the Act,
3. The clerk shall reject from the count all ballots and votes in a ballot that do not comply with the rules set out in subsection 3 (2)"
ONTARIO REGULATION 101/974
"3. (1) The rules set out in subsection (2) are prescribed for the purpose of section 54 of the Act (rejection of ballots). O. Reg. 326/16, s. 2.
(2) The deputy returning officer shall reject from the count,
(a) all votes in a ballot, if the ballot,
(i) was not supplied by the deputy returning officer, or
(ii) contains writing or marks that may identify the elector, or is torn, defaced or otherwise dealt with by the elector in a way that may identify him or her;
(b) all votes in a ballot for an office, if votes have been cast for more candidates for the office than are to be elected;"
Today the Clerk notified Council that the recount will be conducted on Thursday, November 24, 2022.
Mr. Mascarin did say on Tuesday that if his client is not satisfied, she may appeal to the Court. See video clip from Nov 15 Council meeting below.
It is a process open to her which involves her making an application to the Superior Court under Section 58 of the Municipal Elections Act.
"58 (1) A person who is entitled to vote in an election and has reasonable grounds for believing the election results to be in doubt may apply to the Superior Court of Justice for an order that the clerk hold a recount.
(3) If satisfied that there are sufficient grounds for it, the court shall make an order requiring the clerk to hold a recount of the votes cast for all or specified candidates, on a by-law, or for all or specified answers to a question, and shall give the clerk a copy of the order as soon as possible.
(6) A request for a recount due to problems related to voting and vote-counting equipment may be made only under this section."
So, this matter may still take a while to conclude.
*In attendance at the Oshawa Nov 15, 2022 Council meeting and speaking to Council were City lawyer Sam Yoon, Blaney McCurtry lawyer Jack Siegel who was retained by the City to provide advice in this matter, and Aird & Berlis lawyer John Mascarin for his client Theresa Corless. Interestingly: Siegel and Mascarin represented former Councillors Mary Novak and Joe Neal on a court application concerning a recount of the Clarington ballots in the 2014 election where they were 3 votes apart:
www.canlii.org/en/on/onsc/doc/2015/2015onsc342/2015onsc342.html?searchUrlHash=AAAAAQAWYnJvY2sgZWxlY3Rpb24gcmVjb3VudAAAAAAB&resultIndex=4