Limited Recount Of Ballots In One Vote Election Defeat Should Lead To Legislative Reform

• Law Firm: Gardiner Roberts LLP
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege
• Author: Mr Stephen Thiele
• Published date: 25 April 2023

The lifeblood of western democracy is the right to vote, and, moreover, the right to have an elector's vote counted once deposited into the ballot box. For a losing candidate, these complementary rights ensure that after a hard fought campaign, the election result is unassailable. To provide comfort to losing candidates where a loss is suffered by a very slim margin, electoral laws generally permit automatic judicial recounts to take place in order to verify an election result and ensure that all ballots cast have been properly counted. Where the difference between the winner and the loser falls outside of the prescribed margin for an automatic judicial recount, a defeated candidate can still make an application for a recount. However, in this situation the candidate must satisfy the court that there are legitimate reasons for the recount.

This can be a daunting task, even where, as recently determined in Pella v. City of Toronto, 2023 ONSC 2021 (CanLII), the margin of defeat is a single vote.

In this case, the applicant ran for school trustee of the Roman Catholic District School Board in the City of Toronto. He lost the election by one vote. However, this narrowest margin of defeat was not subject to an automatic judicial recount because section 56 of the Municipal Elections Act, 1996, S.O 1996, c. 32, Sch (the "MEA"), only mandated a recount in the case of a tie, and the Toronto Catholic District School Board trustees did not vote in favour of a recount. Accordingly, the applicant was required to bring an application for a recount under section 58 of the MEA. This section required him to show that he had reasonable grounds for believing that the election results to be in doubt.

Although the applicant was able to demonstrate that there were reasonable grounds for believing that the election results to be in doubt, the court only ordered a recount for a limited group of ballots that had been cast in the election rather than all of the ballots cast for school trustee or all of the ballots the applicant sought to have recounted.

In my view, the narrowness of the court's order is contrary to the substantive approach that ought to have been applied to the case to ensure that all of the ballots in question were included in the recount.

Moreover, the legislative restriction that only mandates a judicial recount in the case of a tie is unduly and unjustly restrictive and signals a clarion call for municipal electoral reform in connection with when a judicial...