



COURT OF APPEAL FOR ONTARIO

CITATION:
Cusimano v. Toronto
    (City), 2012 ONCA 907

DATE: 20121224

DOCKET: C55365

Weiler, Juriansz, and Tulloch JJ.A.

BETWEEN

Agustine G. Cusimano

Applicant (Appellant/Respondent by way of cross-appeal)

and

City of Toronto
and
Maria
    Augimeri

Respondents (Respondents/
Appellant by way of cross-appeal
/
Respondent by way of cross/appeal
)

Lorne Honickman and Rory Barnable, for the appellant/respondent
    by way of cross-appeal, Agustine G. Cusimano

Diana Dimmer and Tim Carre, for the respondent/respondent
    by way of cross-appeal, City of Toronto

Julian Heller and Zabi Yaqeen, for the respondent/appellant
    by way of cross-appeal, Maria Augimeri

Marcia J. Taggart, for the intervener, City of Mississauga

Caroline V. Jones and Michael Fenrick, for the
    intervener, Gloria Saccon

Heard: November 8, 2012

On appeal and cross-appeal from the judgment of the
    Divisional Court (Justices John R.R. Jennings, Michael R. Dambrot, and John R.
    Sproat), dated December 19, 2011, with reasons reported at 2011 ONSC 7271 and
    2012 ONSC 2629.


Table of Contents

A.

Overview..................................................................................................... 3

B.

Facts.......................................................................................................... 7

(1)      The Statutory Scheme for Municipal Elections and the
    2010 Ward 9 City Councillor Election................................................................................................... 7

(2)      Decisions Prior to this Appeal....................................................... 12

(a)

The
    Decision of the Application Judge................................... 12

(b)

The
    Decision of the Divisional Court...................................... 15

(c)

Opitz
    v. Wrzesnewskyj
.......................................................... 20

C.

Legal
    Issues and Analysis.......................................................................... 24

(1)      Are the irregularities in the 275 VLCRFs sufficient
    in and of themselves to discount the votes they represent?....................................................................... 24

(2)      What evidence was the Divisional Court entitled to
    consider in concluding that the omission of the election officials signature
    did not affect the result of the election? 29

(3)      Conclusion on the Main Appeal..................................................... 34

D.

Costs........................................................................................................ 35

(1)      Facts........................................................................................... 36

(a)

Costs
    Before the Application Judge....................................... 36

(b)

Augimeris
    Motion to Intervene as a Party.............................. 36

(c)

Costs
    Before the Divisional Court.......................................... 39

(d)

Opitz
and Costs.................................................................... 45

(2)      The Parties Positions Respecting the Divisional
    Courts Decision on Costs 47

(3)      Analysis of Costs for Augimeris Motion to Intervene
    and Proceedings Before the Application Judge and the Divisional Court.............................................. 49

(4)      Costs of this Appeal..................................................................... 57

(5)      Summary of Costs....................................................................... 59

Weiler J.A.:

A.

Overview

[1]

This appeal requires the court to determine whether Maria Augimeri was
    validly elected as a City Councillor in Ward 9 of the City of Toronto.

[2]

In the October 25, 2010 municipal election conducted pursuant to the Ontario
Municipal Elections Act
,
1996
, S.O. 1996, c. 32 (MEA),
    Maria Augimeri defeated Agustine Cusimano by a plurality of 89 votes.  There is
    no suggestion of fraud, although one person voted twice.  Cusimano contested
    the validity of Augimeris election,
[1]
primarily on the basis of irregularities contained in the Voters List Change
    Request Forms (VLCRFs).

[3]

VLCRFs are used when a persons name is not on the voters list for a
    particular ward.  In such instances, that person will be asked to do two
    things: first, to present identification verifying his or her name, qualifying
    address, and signature, like all other voters who attend at a voting place on
    election day; and second, to complete and sign a VLCRF containing a declaration
    of entitlement to vote.  An election official, having verified that
    identification was provided and the form was properly completed, will then add
    his or her signature to the end of the VLCRF and provide the voter with a
    ballot.

[4]

In the Ward 9 election, 275 VLCRFs used to add voters to the voters
    list were submitted without an election officials signature, though each
    contained a signed declaration of the voter attesting to his entitlement to
    vote.
[2]
The omission of the election officials signature on these VLCRFs was a
    clerical mistake that was not within the voters control or that of the
    candidates.  Although Cusimano complains of hundreds of irregularities in the
    Ward 9 election, these 275 VLCRFs that lack an election officials signature
    but include a voter declaration are the focus of this appeal.

[5]

Cusimano applied to the Superior Court to determine the validity of the
    election pursuant to s. 83(1) of the MEA.  Section 83(6) states that the court
    shall not determine an election to be invalid if (a) a procedural irregularity
    occurred that did not affect the result of the election and (b) the election
    was conducted in accordance with the principles of this Act.

[6]

As discussed in greater detail below, the application judge and the
    Divisional Court adopted two divergent approaches to determining whether the
    irregularities in Ward 9 did, in fact, affect the result of the election.

[7]

Following the Divisional Courts decision, the Supreme Court of Canada
    released its reasons in
Opitz v. Wrzesnewskyj,
2012 SCC 55.  The
    majoritys reasons, also discussed in greater detail below, provide support for
    the Divisional Courts approach and conclusion.

[8]

In
Opitz
, the Supreme Court of Canada dealt with a challenge to
    the validity of  an election under the
Canada Elections Act,
S.C.
    2000, c. 9 (CEA). A number of voter declaration forms, which are functionally
    equivalent to VLCRFs, were not signed by the voter, but were signed by the
    election official.  As is the case here, the Supreme Court had to choose
    between two divergent approaches in determining whether the omission affected
    the result of the election.

[9]

The two approaches were the procedural approach, whereby failure to
    follow a procedural safeguard will invalidate the vote cast, and the
    substantive approach, whereby primacy is given to the underlying right to vote
    and failure to follow a procedural safeguard is not determinative.  Rather,
    when the court follows the substantive approach, it will have regard to all of
    the evidence respecting the vote, and decide whether persons not entitled to
    vote, voted.  The majority of the Supreme Court in
Opitz
rejected the
    procedural approach in favour of the substantive approach.

[10]

The
    Supreme Court also adopted the magic number test. Under the magic number
    test, the court considers whether the number of discounted ballots was greater
    than the plurality by which the person originally elected won.  If so, the
    court should exercise its discretion to annul the election.  Applying the
    magic number test to this case, if the votes represented by the 275 VLCRFs
    are discounted, then the election is invalid because the discounted votes
    exceed the 89 votes by which Augimeri won.

[11]

Applying
    the specific wording of the MEA

and the substantive approach endorsed
    in
Opitz
, I conclude that the omission of the election officials
    signature on those 275 VLCRFs did not compromise the voters underlying
    entitlement to vote. The 275 ballots represented by those VLCRFs should not be
    discounted, as the procedural irregularities in issue did not affect the
    result of the election.

[12]

For
    that reason and the reasons that follow, I would therefore uphold the decision
    of the Divisional Court and dismiss the appeal.

[13]

Certain
    additional issues were argued before this court by Augimeri, the winning
    candidate in Ward 9, who became a party to these proceedings after the
    application judges decision. These issues were also raised before the
    Divisional Court, but it did not decide them.  I do not propose to decide them
    here.  There is no decision at first instance to review and the resolution of
    these issues is not essential to the ultimate outcome of this appeal.

[14]

A
    subsidiary but important issue to the main appeal is who should pay the costs
    of the proceedings.   I will consider the question of costs after I deal with
    the main appeal.

B.

Facts

(1)

The Statutory Scheme for Municipal Elections and the 2010 Ward 9 City
    Councillor Election

[15]

The
    MEA is the governing statute for municipal elections held in the province of
    Ontario.  There are several notable elements of the statutory scheme for the
    purposes of this appeal.

[16]

Section
    17(2) sets out a list of qualifications which entitle an individual to vote in
    a municipal election on voting day.  It stipulates that a qualified elector
    will:

·

Reside in or own property located in the municipality or be a
    spouse of such an owner or tenant;

·

Be a Canadian citizen;

·

Be at least 18 years old; and

·

Not be prohibited from voting under s. 17(3) or otherwise by law.
[3]

[17]

Prior
    to election day, a preliminary voters list is prepared by the Municipal
    Property Assessment Corporation (MPAC) for each polling division.  Typically,
    the voters list does not contain complete information and requires amendment
    on the day of the election to accommodate qualified and eligible individuals who
    have been left off the list by MPAC.

[18]

An
    individual who has been left off of the voters list and is seeking to be added
    must complete a VLCRF.  A VLCRF has three sections that the voter is instructed
    to complete.  The first section requires the voter to specify what kind of
    change is being requested  for example, a voter might check the box which says
    Add my name to the list.  The second section requires the voter to fill in
    his or her name, date of birth, and address, and to specify his or her entitlement
    to vote  for example, a voter might check the box that says Resident if he
    or she is a resident of the ward in which the polling station is located.  The
    third section requires the voter to sign and date a declaration that he or she
    is a Canadian citizen, at least 18 years old on voting day, and entitled to be
    an elector and that the information providedis true and accurate.

[19]

The
    VLCRF also has a section that the election official manning the polling station
    is instructed to complete.  The election official is to review the form to
    ensure it contains complete information, mark a box indicating that the voters
    identification has been checked, and place his or her signature at the bottom
    of the form.  A substantial number of the VLCRFs that were not signed by the
    election official had a checkmark confirming that the election official had
    checked the voters identification.
[4]

[20]

In
    support of his submission that the 275 VLCRFs not signed by an election
    official should be declared invalid, Cusimano points to s. 24 of the MEA. 
    Section 24(3) stipulates that if the clerk is satisfied that the applicant is
    entitled to have the requested change made, the clerk shallendorse the
    application to indicate approvaland the voters list will be changed to reflect
    the approved application.

[21]

Cusimano
    submits that in order to comply with the statutory requirement that the clerk
    endorse the application, the election officials processing the VLCRFs were
    required to place their signatures on each submitted form.  Their failure to do
    so amounts to an irregularity that provides a basis for annulling the election
    in Ward 9 and ordering a new one.

[22]

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 judges discretion in cases of procedural irregularities.

[23]

Section
    83(6) stipulates that [t]he 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.

[24]

The
    procedural irregularities described in subsection (7) are:

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.

[25]

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.

[26]

Before
    the application judge, both parties conceded that the errors in the impugned
    VLCRFs fell within either ss. 83(7)(3) or (7)(4), and were therefore procedural
    irregularities subject to the saving provision in s. 83(6).  The Divisional
    Court also accepted this.

[27]

The
    central issue on appeal is therefore whether these procedural irregularities
    affect[ed] the result of the election.  Before us, Cusimano made no specific
    submissions respecting s. 83(6)(b), namely, whether the election was conducted
    in accordance with the principles of the Act.  Nonetheless, because the words
    of an Act must be considered in context, the principles underlying the MEA
    should be borne in mind.

[28]

The
    principles of the Act referred to in s. 83(6)(b) are not expressly set out in
    the legislation.  Rather, they are to be inferred from the provisions of the
    Act.  These inferred principles were considered at some length by Dambrot J. at
    paras. 104-114 of the Divisional Courts decision in this case.  For the
    purposes of this appeal, it is necessary for me only to refer to one of them.

[29]

In
Montgomery v. Balkissoon
(1998), 38 O.R. (3d) 321, at p. 322, this
    court explained that the the proper majority vote decides the election.  This
    principle is enacted by ensuring, so far as is reasonably possible, that valid
    votes be counted and invalid votes be rejected:
Montgomery
, at p.
    322.

[30]

In
    articulating this principle, the court warned against confusing the principles
    of the Act with the means used to ensure conformity with them.  This courts
    comments in
Montgomery
speak to the enfranchising objectives of the
    MEA and the MEAs overriding

aim of ensuring that the ballots cast by
    individuals who are entitled to vote are not discounted by virtue of
    administrative or procedural errors that do not affect the result of the
    election.

[31]

I
    turn now to the decisions of the application judge and the Divisional Court.

(2)

Decisions Prior
to this Appeal

(a)

The Decision of the Application Judge

[32]

The
    application judge was not satisfied that the irregularities in the VLCRFs had
    not affected the outcome of the election, and therefore declined to apply the
    saving provision under s. 83(6).  She declared the Ward 9 election invalid and
    ordered a by-election.

[33]

Cusimano
    argued before the application judge, as he did again on appeal, that the
    failure of an election official to sign a VLCRF was a failure to comply with
    the statutory requirement that a clerk or a delegate of the clerk endorse the
    application.  He submitted that any individual added to the voters list on the
    basis of a VLCRF missing an election officials signature was, as a result of
    the statutory breach, not entitled to vote.  Because the number of voters added
    to the list on the basis of a VLCRF missing an election officials signature
    (275) exceeded the margin of votes by which he had lost (89), he argued that
    the result of the election was affect[ed] within the meaning of s. 83(6).

[34]

The
    application judge accepted Cusimanos submission that the word endorse,
    contextually interpreted within the phrase the clerk shallendorse the
    application to indicate approval, means sign.  By extension, she concluded
    that the failure of an election official to sign the VLCRF was a breach of s.
    24 of the MEA, that the irregularities in the VLCRF fell within either s.
    83(7)(3) or (7)(4), and that the election was therefore subject to the saving
    provision in s. 83(6).

[35]

In
    considering whether the irregularities had not affected the result of the
    election within the meaning of s. 83(6), she was guided by the decision in
OBrien
    v. Hamel
(1990), 73 O.R. (2d) 87.  The
OBrien
court took what
    the majority of the Supreme Court in
Opitz
refers to as a procedural
    approach to this determination:
Opitz,
at para. 54.  Under this
    approach, failure to follow a procedural safeguard set out in the governing
    legislation is alone sufficient to discount the vote cast.  If the number of
    discounted votes exceeds the margin of victory, it cannot be said that the
    statutory non-compliance did not affect the result of the election:
OBrien
    v. Hamel
, at pp. 95-96.

[36]

The
    application judge observed that the failure to comply with procedural
    safeguards set out in the MEA was widespread in Ward 9.  At para. 49 of her
    reasons, she stated:

Hundreds of VLCRFs in various polling divisions were not signed
    by an election official. This is not a case of isolated irregularities. Nor are
    the irregularities trifling.

[37]

Applying
    the reasoning in
OBrien
, she concluded that the number of votes
    tainted by these irregularities exceeded the margin of votes by which Cusimano
    lost, and therefore that the result of the election had been affected by the
    irregularities.  Though she considered whether it was open to her to order the
    City to verify the entitlement of the voters who cast the impugned ballots, she
    ultimately felt she was limited by the MEA to determining whether or not the
    election was valid on the record before her.

[38]

Further,
    while she felt it was unclear from the jurisprudence which party bore the onus
    of demonstrating that an irregularity had affected the result of the election
    under s. 83(6), if it was on Cusimano, it had been satisfied for the reasons
    above.

[39]

Finally,
    the application judge considered the respondents submission that the election
    could be saved by a presumption of regularity  the presumption that only
    individuals entitled to vote had in fact received ballots. The respondents
    argued that such a presumption should arise from evidence in the record that the
    election officials were competent and hard-working, that they had followed the
    regulatory procedures on which they were trained, and that they believed only
    those entitled to vote would have received ballots.

[40]

The
    application judge declined to apply a presumption of regularity in this case. 
    She felt it would be inappropriate in light of the proof presented by Cusimano
    that at least one person voted twice at a Ward 9 polling station  definitive
    evidence that not only individuals entitled to vote had received ballots.

[41]

She
    concluded that the failure of the election officials to comply with the statute
    was fatal to the Ward 9 election, noting at para. 65:

OBrien v. Hamel
held that the fact that the methods
    used by election officials may have been as good as that provided for in the
    statute did not save the votes.  Compliance with the statute was required to
    ensure the integrity of the system.

[42]

In
    the result, the application judge declared the Ward 9 election invalid and
    ordered a by-election be held.

(b)

The Decision of the Divisional Court

[43]

The
    respondents appealed the application judges order to the Divisional Court. 
    Maria Augimeri, the victor in Ward 9, was granted leave to join as a party to
    the appeal.  The City of Toronto and Augimeri were supported by two
    interveners, both of whom intervened again in the appeal before this court: the
    City of Mississauga, and Gloria Saccon, one of the voters in Ward 9.  Dambrot
    J., writing for the court, allowed the appeal, declared the Ward 9 election
    valid, and set aside the application judges order for a by-election.

[44]

Dambrot
    J. accepted, at paras. 54 and 60, that endorse within the meaning of s. 24(3)
    required at least some physical act applied to the form, such as a signature,
    initial, or stamp, and that the failure of the election officials to endorse
    the VLCRFs amounted to an irregularity within the meaning of s. 83(7) of the
    MEA.

[45]

He
    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 Courts 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.

[46]

As
    I will discuss in greater detail below, this conception of s. 83(6) foreshadows
    the Supreme Courts decision in
Opitz
.

[47]

Before
    deciding whether the irregularities in the 275 VLCRFs did not affect the result
    of the election, Dambrot J. considered which party bears the standard of proof
    in such a determination.  He held that the applicant has the burden of
    establishing, on a balance of probabilities, both that an irregularity existed
    and that it affected the outcome.

[48]

In
    deciding the issue of whether the result of the election was affected by the
    irregularity, Dambrot J. held that the application judge had erred in law in
    her approach, for three reasons.

[49]

First,
    he found her refusal to apply a presumption of regularity, on the basis of
    evidence that one person was permitted to vote twice, unreasonable.

[50]

Second,
    he found the application judges use of an arithmetic formula  the number of
    votes at issue less the number of votes representing the margin of victory  to
    determine the impact of the irregularities on the result of the election to be
    insufficient.  Instead, Dambrot J. was of the opinion that the application
    judge was obliged to examine all the evidence to ascertain the true effect of
    the irregularities.

[51]

Determining
    the true effect of the irregularities requires the court to consider whether
    they resulted in either (a) votes being counted that were cast by individuals
    who were not entitled to cast them, or (b) votes not being counted that were
    cast by individuals who were entitled to cast them.  Where those votes actually
    changed the outcome of the election, because they exceeded the margin of
    victory, the irregularities could properly be said to have affected the result
    of the election. This approach closely parallels what the Supreme Court in
Opitz
calls the substantive approach, discussed in greater detail below.

[52]

Third,
    Dambrot J. found that the application judge erred in law by finding there was no
    evidence in the record upon which she could conclude that the impugned VLCRFs
    were submitted by voters who were in fact entitled to vote.  In particular, she
    overlooked the fact that the scheme in place for processing the VLCRFs provided
    a series of procedural safeguards to ensure that each ballot cast was submitted
    by an entitled voter.  As Dambrot J. describes, at para. 95-96:

All electors were required by the Identification Policy to
    produce specific identification verifying their name, qualifying address, and
    signature in order to vote.  Once it was confirmed by an election official that
    an elector whose name was not on the voters list was in the correct ward, the
    official was required by the Voting Procedure to give the elector a VLCRF and
    have the elector complete it.  The elector was required to record his or her
    name and address on the form; to tick boxes indicating occupancy, residency,
    and school support; to sign and date a declaration that he or she was a
    Canadian citizen, at least 18 years old on voting day, entitled to be an
    elector, and that the information provided was true and accurate; and to
    present the completed form to an official.  The official was then required to
    review the form, tick a box confirming that identification had been checked,
    and, if satisfied of the electors eligibility, sign the form, add the
    electors name to the front of the voters list and place the original VLCRF
    and a duplicate in appropriate envelopes.  The Ballot Officer was then required
    to provide the elector with a ballot and follow the ordinary voting procedure.

There is no reason to doubt that this scheme was generally
    followed by the election officials
. [Emphasis added.]

[53]

While
    Dambrot J. acknowledged the errors in hundreds of VLCRFs identified by
    Cusimano, he concluded that there was a significant body of evidence that in
    each case a voters name was added to the voters list, that voter was in fact
    eligible to vote.  The evidence included the voter procedure described above,
    the affidavits of seventeen election officials that, to the best of their
    knowledge, they had followed the voting procedure, and declarations signed by
    275 of 286 voters attesting to being Canadian citizens, 18 years of age, and
    entitled to vote.

[54]

Dambrot
    J. placed particular emphasis on these declarations because they were made
    under threat of penalty of a fine of up to $25,000, pursuant to s. 89(h) and
    94.1(1) of the MEA.  The declarations thus provided compelling evidence that
    the individuals who signed them were entitled to vote.  Dambrot J. also pointed
    out that relying on the declarations of voters that they are entitled to vote
    reinforces the enfranchisement of citizens and guards against
    disenfranchisement: para. 102.

[55]

As
    a result, the Divisional Court allowed the appeal, declared the Ward 9 election
    valid, and set aside the order that a by-election be held.

(c)

Opitz v. Wrzesnewskyj

[56]

As
    indicated at the outset of these reasons, the adoption of the substantive
    approach by the majority of the Supreme Court in
Opitz
has a direct
    impact on the proper resolution of this appeal.  I will therefore briefly
    review the majoritys decision before discussing the legal issues raised in
    this case.

[57]

Opitz
    won in the Etobicoke Centre electoral district by a plurality of 26 votes. 
    Wrzesnewskyj was the runner-up.  He applied to have the election annulled under
    s. 524(1)(b) of the CEA, which allows a candidate to contest the validity of an
    election on the grounds that there were irregularitiesthat affected the
    result of the election.

[58]

Recall
    that, in order for the saving provision in s. 83(6)(a) of the MEA to be
    applied, the court must determine that the irregularity did not affect the
    result of the election.  This phrase is simply the negative construction of
    the language contained in the CEA enabling a candidate to obtain a declaration
    of invalidity.

[59]

The
    majority of the Supreme Court, whose reasons were co-authored by Rothstein and
    Moldaver JJ., with Deschamps and Abella JJ. concurring, dismissed the appeal. 
    They emphasized two principles.  The first is that the purpose of an election
    statute is to enfranchise all persons entitled to vote and to allow them to
    express their democratic preferences:
Opitz
, at para. 35.  The second
    is that a remedial by-election is not a perfect substitute because it
    disenfranchises all those electors who voted in the original election:
Opitz
,
    at para. 48.

[60]

The
    Supreme Court was unanimous in holding that the challenger bears the burden of
    proving, on a balance of probabilities, that irregularities have affected the
    result of the election: see
Opitz
, at paras. 52 and 172.  Indeed, the
    majority cites the Divisional Courts decision in this case in support of its
    conclusion:
Opitz
, at para. 52.

[61]

The
    majority then proceeded to discuss the two approaches historically taken to
    determining when irregularities will justify invalidating an election.  As I
    have indicated, these two approaches, the procedural approach and the
    substantive approach, closely parallel the approaches taken by the application
    judge and the Divisional Court respectively in this case.

[62]

The
    procedural approach, followed in
OBrien v. Hamel
, requires the court
    to discount any vote cast where there was a failure to comply with procedural
    steps set out in the governing act aimed at establishing an individuals
    entitlement to vote:
Opitz
, at para. 54.  This approach places a
    premium on form over substance, and risks overturning an election that reflects
    the will of voters who in fact had the right to vote.  The procedural approach
    also enlarges the likelihood of litigation, because losing candidates will look
    for technical administrative errors in the hopes of getting a second chance:
Opitz
,
    at para. 56.

[63]

Unlike
    the procedural approach, the substantive approach looks beyond procedural non-compliance
    and emphasizes the purpose of an election statute, namely, to enfranchise all
    persons entitled to vote and to allow them to express their democratic
    preferences:
Opitz
, at para 35.  In adopting the substantive
    approach, the majority stated, at para. 57:

The substantive approach is recommended by the fact that it
    focuses on the underlying right to vote, not merely on the procedures used to
    facilitate and protect that right.  In our view, an approach that places a
    premium on substance is the approach to follow in determining whether there
    were irregularitiesthat affected the result of the election.

[64]

The
    substantive approach, as formulated by the
Opitz
majority, entails two
    steps.  First, an applicant seeking to invalidate an election must demonstrate
    that an irregularity has occurred.  Because an irregularity is not
    specifically defined in the CEA, the majority defines an irregularity as a
    breach of a statutory provision designed to establish a persons entitlement
    to vote:
Opitz
, at para. 58.  By entitlement, the court means an
    individuals age, citizenship, and residence  not compliance with procedural
    safeguards under the governing act:
Opitz
, at para. 63.

[65]

The
    second step an applicant must take under the substantive approach is to
    demonstrate that the irregularity affected the result of the election by
    establishing that someone not entitled to vote, voted.  A vote cast by someone
    not entitled to vote will be considered invalid and discounted.  A discounted
    vote affects the result of the election, because it changes the vote count:
Opitz
,
    at para. 59.

[66]

Once
    an applicant has led evidence of an irregularity respecting entitlement to
    vote, his or her
prima facie
evidentiary burden is met.  The
    respondent then must adduce evidence that either no irregularity occurred or,
    despite the irregularity, that the votes in question are valid:
Opitz
,
    at para. 61.  A court may consider any evidence, produced by either party,
    including after the fact evidence, which is relevant to the three criteria of
    entitlement: age, citizenship and residence:
Opitz
, at paras. 62-63.

[67]

If
    it is established on the basis of all the evidence that there were
    irregularities that affected the result of the election, a court may annul
    the election.  This discretion should be exercised when the court is satisfied
    that the true winner of the election is in doubt.  The winner of the election
    will be in doubt when a sufficient number of votes have been discounted on the
    basis that they were cast by persons not entitled to vote.

[68]

Specifically,
    while leaving room for the possibility of another, more realistic method for
    assessing controverted elections, the majority endorsed the magic number
    test:
Opitz
, at paras. 71-73. As discussed above, under this
    approach, an election will be declared invalid where the number of discounted
    votes exceeds the margin of victory. This is the same formula used by the
    application judge and the Divisional Court in this case.

C.

Legal Issues and Analysis

[69]

Cusimano
    argues that each of the 275 VLCRFs in issue contain an irregularity which is
    alone sufficient to discount the votes represented: the omission of an election
    officials signature.  Because of this irregularity, he submits that there is
    no assurance that those individuals who were permitted to cast votes were
    qualified and entitled to do so.

[70]

I
    will first discuss the nature of the irregularity in issue and then the
    evidence respecting whether the persons who voted were, in fact, entitled to vote. 
    I conclude, as did the Divisional Court, that the omission of the election
    officials signatures on the 275 VLCRFs did not compromise the voters
    entitlement to vote and therefore did not affect the result of the election.

(1)

Are the irregularities in the 275 VLCRFs sufficient in and of themselves
    to discount the votes they represent?

[71]

Both
    the wording of the MEA and the majority decision in
Opitz
are fatal to
    Cusimanos argument.

[72]

As
    I have indicated, the irregularity in this case is a procedural irregularity
    described in s. 83(7) of the MEA.  Section 83(6) of the MEA makes it clear that
    a procedural irregularity described in s. 83(7) will not invalidate an election
    so long as (a) the irregularity did not affect the result and (b) the election
    was conducted in accordance with the principles of the MEA.  Thus, on a plain
    reading of the MEA, the procedural irregularities in the 275 VLCRFs are not
    sufficient in and of themselves to discount the votes they represent.  The
    court must, under the clear legislative direction in the MEA, go on and
    consider whether the saving provision of s. 83(6) applies.  Cusimanos argument
    is therefore not supported by the wording of the MEA.

[73]

Despite
    this, Cusimano points this court to the majoritys observation in
Opitz
at
    para. 57 that, [p]roof of an irregularity may itself be sufficient to discount
    a vote.  He says this statement supports his argument that an irregularity
    alone may be sufficient to discount a vote, and that the irregularity in
    question  the failure of the election officials to sign the VLCRFs  is one
    such irregularity.

[74]

Cusimanos
    submission fails to place the majoritys comment in
Opitz
in context. 
    First, as Cusimano acknowledges in his factum, the CEA does not contain a
    definition of irregularity.  The majority instead defined an irregularity
    serious enough to trigger the application of s. 524(1)(b) as a breach of a
    statutory provision designed to determine entitlement:
Opitz
, at para.
    58.  When the majority refers to an irregularity that may alone be sufficient
    to discount a vote, it is therefore referring to non-compliance with a
    statutory provision designed to establish a voters entitlement to vote.

[75]

The
    wording of the MEA is complimentary to this aspect of the decision in
Opitz
.
     Under the MEA, irregularities that trigger the saving provision of s. 83(6)
    are expressly defined in s. 83(7); they are
procedural
irregularities.  Indeed, the heading of the saving provision in s. 83(6) is
    Effect of procedural irregularities.  Entitlement to vote under the MEA is
    governed by s. 17(2), which lists the same three requirements as set out in
Opitz
 age, citizenship and residence, plus the requirement under s. 17(2)(d) that
    the elector not otherwise be prohibited by law from voting.

[76]

Irregularities
    respecting entitlement to vote under s. 17(2) are not included in the saving
    provision of s. 83(6).  Therefore, applying
Opitz
, it is only irregularities
    that call into question the criteria set out in s. 17(2) that may in themselves
    be sufficient to discount a vote.  By extension, the failure of an election
    official to sign a VLCRF as required under the MEA is not the type of
    irregularity that will alone be sufficient to discount the underlying vote.

[77]

Indeed,
    if this court were considering the CEA instead of the MEA, it would be
    questionable whether the omission of the election officials signatures even
    rises to the level of seriousness required to trigger the application of s. 524
    under the first step of the
Opitz
analysis.  Under the MEA, however, a
    court confronted with a procedural irregularity under s. 83(7) in a validity
    application must proceed to the second stage of the
Opitz
analysis
    pursuant to s. 83(6).  It is therefore unnecessary to determine whether the
    procedural irregularities in this case would fall within the definition of
    irregularitiesthat affected the result put forward in
Opitz
.

[78]

Second,
    the majority in
Opitz
draws an important distinction between
    entitlement to vote and procedural mechanisms used to satisfy election
    officials that voters are entitled to vote.  Entitlement relates to the fundamental
    requirements of age, citizenship and residence: para. 63.  Procedural mechanisms
    allow those citizens who meet these requirements, and are therefore entitled to
    vote, to actually cast a ballot on election day.  Procedural safeguards in
    electoral statutes are not to be treated as ends in themselves:
Opitz
,
    at paras. 33-34.

[79]

Thus,
    the Supreme Court has made clear that procedural requirements should not trump
    the substantive right to vote.  Similarly, here, entitlement to vote under s.
    17(2) of the MEA does not depend on compliance with the procedural safeguards
    set out in the statute.

[80]

The
    requirement that an election official sign a VLCRF is a procedural safeguard. 
    It is intended to ensure that the election official has confirmed that only a
    person entitled to vote is voting, by checking the voters identity, age and
    residence.

[81]

While
    the breach of a procedural irregularity does not compromise the voters
    underlying and fundamental entitlement to vote, it is evidence from which it
    may be inferred that a voter was not entitled to vote:
Opitz
, at para
    60.  Cusimano was not required to prove the votes were fraudulently cast or to
    lead direct evidence of a lack of entitlement:
Opitz
, at para. 57. 
    However, the respondents in this appeal were entitled to present, as they did,
    evidence that, despite the procedural irregularity, the ballots were cast by
    voters who were entitled to vote:
Opitz
, at para. 61.

[82]

Under
    the substantive approach set out in
Opitz
and the clear statutory
    language of the MEA, the court must

look to all of the evidence to
    determine whether the procedural irregularities did, in fact, affect the result
    of the election.  Without this second step, the carefully drawn distinction
    between entitlement and procedural safeguards drawn by the majority in
Opitz
would be turned on its head.

[83]

For
    these reasons, I would reject Cusimanos argument that the omission of the
    election officials signature on the 275 VLCRFs is sufficient in and of itself
    to discount the votes in question.  His argument does not give effect to either
    the wording of the MEA or the substantive approach adopted by the Supreme Court
    in
Opitz.


[84]

I
    will now consider the second prong of Cusimanos argument, namely, that there
    was insufficient evidence to assure the Divisional Court that the 275 VLCRFs
    lacking an election officials signature nonetheless represented ballots cast
    by voters who were entitled to vote.

(2)

What
    evidence was the Divisional Court entitled to consider in concluding that the
    omission of the election officials signature did not affect the result of the
    election?

[85]

Cusimano raises two specific concerns about the evidence the Divisional
    Court used to conclude that the impugned ballots were, in fact, cast by
    electors who were entitled to vote.

[86]

First,
    he argues that the voter declarations are insufficient, in the absence of an
    election officials signature or other concrete evidence of qualification, to
    validate the ballots in issue.  As I noted above, all 275 VLCRFs in issue in
    this case were signed by a voter, declaring that he or she was a Canadian
    citizen, 18 years of age, and entitled to vote on election day.  Cusimano
    submits that no weight should be given to these declarations or, alternatively,
    that they are insufficient to show that, despite the lack of an election
    officials signature, the ballots cast were valid.

[87]

In
    support of this argument, he points out that the registration certificates
    impugned in
Opitz,
though lacking voters signed declarations,
were
signed by an election official  concrete evidence, according to Cusimano,
    confirming qualification and entitlement.  Because there are no election
    officials signatures on the VLCRFs in this case, Cusimano submits that there
    is no such direct evidence from which it can be inferred that the ballots
    arising from the 275 VLCRFs were cast by qualified voters.  In his words,
    [t]he presence of the declaration does not show that the ballots belonged in
    the ballot box (emphasis omitted).

[88]

Second,
    Cusimano argues that the Divisional Court should not have accorded as much, if
    any, weight to the after the fact affidavit evidence of election officials
    manning Ward 9 polling stations.  Many of the affidavits include sworn
    statements that the election officials believed only qualified electors were
    permitted to vote on election day.  Cusimano submits that such generalized,
    after the fact evidence involves a speculative approach not sanctioned by
Opitz
and cannot be used to save the votes cast under the 275 irregular VLCRFs.

[89]

The
    affidavits were completed by DROs, MDROs and Ballot Officers who were involved
    in the election in Ward 9.  The election officials describe the procedures and
    policies surrounding the administration of the election, the mandatory training
    they were required to complete, and their recollection of voting day.  Most
    swear that, while it is possible, due to inadvertence, or to heavy voter
    traffic, that not every VLCRF was signed, they would have only added voters to
    the voters list and distributed ballots after being satisfied that those
    persons were entitled to vote.

[90]

Cusimanos
    submissions do not accurately reflect the decision in
Opitz.
In
    determining whether the result of an election is affected, the Supreme Court is
    clear that a judge is entitled to consider more than direct evidence.

The
    majority stated, at para. 74 of their reasons:

In determining whether the result was affected, an application
    judge may consider any evidence in the record capable of establishing that the
    person was in fact entitled to vote despite the irregularity, or that the
    person was not in fact entitled to vote.

The minority similarly observed, at para. 170, that an
    applicant may lead either direct or circumstantial evidence to demonstrate, on
    a balance of probabilities, that persons not entitled to vote, voted.

[91]

In
    relation to Cusimanos first argument respecting the effect of signed voter
    declarations, the majority in
Opitz
indicated that such declarations 
    which establish age and citizenship  could be evidence that the voters in
    question were in fact entitled to vote:
Opitz
, at paras. 110-111.  The
    dissenting reasons, authored by McLachlin C.J., state that the signed
    declaration is a vital prerequisite of entitlement to vote:
Opitz
,
    at para. 159.  I therefore reject Cusimanos argument and agree with the
    Divisional Court that the voter declarations are important evidence of voter
    qualification and entitlement.

[92]

In
    relation to Cusimanos second argument that after the fact evidence should not
    be considered, the majority of the court in
Opitz
did consider after
    the fact evidence
.
For example, at para. 61, the majority suggests
    that where registration certificates are missing, a party may point to
    evidence showing that [the registration certificates] were completed, such
    as.evidence from the polling officials that registration took place.


[93]

In
    relation to poll 426, where 26 votes were at issue, the majority states at
    para. 102 of its reasons, [t]he DRO, when asked eight months after the
    election, said she thought she had completed the 33 certificates.  Although
    the application judge placed little weight on the DROs comments, the majority
    of the Supreme Court, at para. 103, disagreed and accepted the DROs
    recollection as direct evidence of her familiarity with proper protocol:

With respect, we see the matter differently. Any vagueness in
    the DROs evidence is consistent with her being asked to recall something that
    occurred eight months earlier.  Her recollection provides direct evidence that
    she knew she had to complete the registration certificates.

[94]

The
    majority concluded, at para. 104, that the evidence of the DROs recollection,
    along with the evidence that the poll clerk filled out the relevant poll book
    page, made it improbable, to say the least that the DRO failed to comply with
    her obligation to verify voter entitlement.

[95]

It
    is thus clear that the majority in
Opitz
considered the election
    officials recollection to be direct evidence.  The affidavit evidence of the
    election officials in this case similarly conveys their recollection that they
    were familiar with and followed proper protocols with respect to verifying
    voter entitlement.  The affidavit evidence is therefore properly considered
    direct evidence, along with the voter declarations, and Cusimanos argument
    that no direct evidence exists must fail.

[96]

I
    must point out that I am in disagreement with one statement made by Dambrot J.
    with respect to the election officials affidavit evidence.  He states, at
    para. 99 of his reasons:

While of course there were more than these
    seventeen officials who added voters to the list in Ward 9 and Ward 4 TDSB, I
    consider this sample to be large enough to give me significant confidence that
    very few and most likely no voters were permitted to vote who did not present
    the required proof of eligibility.

[97]

This
    sentence is problematic.  There was no evidence that the affidavits of the
    officials were statistically significant, because there was no evidence that
    they were taken from a sufficiently large or randomized sample to represent the
    hundreds of election officials manning the Ward 9 polling stations.  In this
    regard, I agree with Cusimanos submission that Dambrot J. was not entitled to
    reach the conclusion he did based on these affidavits alone.

[98]

That
    said, evidence must be considered as a whole, and Dambrot J.s comments in
    para. 99 must be placed in the context of paras. 94-100 of his reasons.  When
    read in its entirety, Dambrot J.s analysis makes it clear that he viewed the
    affidavits as part of a larger body of evidence that included, most
    significantly, 275 voter declarations.

[99]

I
    agree with the Divisional Court that the affidavits and the declarations, taken
    together, can properly be used in the circumstances of this case to conclude
    that it is likely that only entitled electors voted and, therefore, that the
    result of the election was not affected by the omitted signatures.  This
    conclusion is fortified by the Citys evidence that in a large number of cases
    there is a checkmark in the box on the VLCRF indicating that voter entitlement
    was, in fact, verified by the election officer, although the officer did not
    sign the form.

[100]

For these
    reasons, the Divisional Court did not err in considering both the declarations
    on the VLCRFs and the after the fact affidavit evidence in determining whether
    the persons who voted were entitled to vote.

(3)

Conclusion
on the Main Appeal

[101]

The omission of
    the election officials signature on the 275 VLCRFs in issue was a procedural
    irregularity under s. 83(7) of the MEA. Consequently, the court must determine
    whether the saving provision in s. 83(6) can be applied.  Here, that
    determination turns on whether the result of the election was affected by the
    omission.  In making this determination, the substantive approach endorsed in
Opitz
requires the court to decide, considering the evidence as a whole, whether
    the person casting the impugned ballot was entitled to vote.  There is strong
    evidence in this case that, despite the omission of the election officials
    signature, the persons who signed the 275 VLCRFs were nonetheless entitled to
    vote.  Cusimano has therefore failed to discharge the onus on him to show that
    the result of the election was affected.  The votes represented by the 275
    VLCRFs should not be discounted.  The saving provision under s. 83(6) of the
    MEA can be applied.  The election in Ward 9 is valid.

D.

Costs

[102]

The costs appeal
    in this case requires this court to determine how the following costs should be
    apportioned:

1.

The costs of the proceedings before the application judge;

2.

The costs of the appeal to the Divisional Court;

3.

The costs of the motion to have Augimeri added as a party;

4.

The costs of the appeal before this court.

[103]

I will first set
    out, in chronological order, the decision on costs before the application
    judge, Augimeris motion to intervene, the decision on costs before the
    Divisional Court, and the decision on costs in
Opitz
.  I will then
    outline the parties positions before this court, and my analysis of their
    respective entitlements and liabilities.  Finally, I will consider who should
    bear the burden of costs in this appeal.

(1)

Facts

(a)

Costs Before the Application Judge

[104]

The application
    judge released her reasons in Cusimanos favour on April 21, 2011.  In her
    reasons on costs, released separately, she observed that the previous version
    of the MEA specifically provided that the costs of a recount were to be borne
    by the municipality, unless a court ordered otherwise: para. 13.  Commenting on
    the jurisprudence under the existing MEA, which makes no provision for costs, she
    stated:

[T]he two cases addressing costs since the  MEA was enacted 
Di
    Biase v. Vaughan (City),
[2007] O.J. No. 3516 (S.C.J.) and
Goldie v.
    Brock
(
Township) 
establish that the norm is partial indemnity
    costs, determined in accordance with customary costs principles: para. 11.

[105]

On the basis of
    these two cases, the application judge awarded costs to Cusimano on a partial
    indemnity scale, payable by the City, amounting to $65,000.

(b)

Augimeris Motion to Intervene as a Party


[106]

Augimeri was not
    a party to the proceedings before the application judge.  However, the process set
    out under the MEA for contesting elections clearly contemplates that the
    winning candidate will be a party to such an application.  It is true that s. 83(3.1)
    of the MEA

only requires the applicant to serve the municipality with
    a copy of the application.  However, s. 84(7) of the Act also allows a winning
    candidate whose election is challenged to disclaim the seat and thereby avoid
    any liability for costs of the application.  A winning candidate would only be
    liable for costs if he or she were a party to the proceedings challenging the
    validity of the election.

[107]

Augimeri was not
    a named respondent in Cusimanos application (though his Notice of Application
    refers to her as the respondent), and she was never served.  Though Augimeri
    became aware of Cusimanos application before it was heard, she says she believed
    from her conversations with the City that it would protect her interests.  She
    says she was told by the City that the application had nothing to do with her.

[108]

When the
    application judges decision was issued in April 2011, the City initially
    indicated that it would not appeal the decision.  Augimeri immediately began
    exploring her options for challenging the application judges order.  Shortly
    thereafter, the City changed its position and elected to appeal, announcing
    that it was clear that the decision would be appealed to the Divisional Court
    by other parties  In July 2011, Augimeri did seek leave to be added as a
    party to the pending appeal, and to adduce fresh evidence.

[109]

Prior to the
    hearing on Augimeris motion, Cusimano provided an offer to settle on a without
    costs basis under Rule 49 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194.  The offer was that
    Augimeri would:

·

intervene in the appeal to the Divisional Court as a friend of
    the court (rather than as a party);

·

accept the record and file no additional evidence;

·

not seek costs against Cusimano; and

·

undertake not to delay the appeal, then scheduled to be heard by
    the Divisional Court on September 19 and 20, 2011.

[110]

Augimeri
    declined Cusimanos offer to settle.

[111]

Lederman J.
    heard Augimeris motion on August 5, 2011.  He ruled, at para. 23 of his
    decision, that Augimeri should be granted party status in the appeal because
    she had an interest in the subject matter of the proceeding and would be
    adversely affected by the decision.

[112]

Because she did
    not have an opportunity to file evidence on the initial application, he allowed
    her to deliver an affidavit to show that those voters listed on the VLCRFs
    were in fact eligible to vote, and to provid[e] evidence from voters
    establishing that the elections officials in question at each poll did take the
    necessary steps to verify identities, notwithstanding that the correct box on
    the form was not filled out, or signed.

[113]

The evidence
    Augimeri was seeking to introduce was responsive to the application judges
    reasons for judgment.  At para. 59 of her reasons, the application judge
    commented that the information necessary to contact most of the voters whose
    VLCRFs were not signed was available, that it may have been possible for the
    City officials to contact those voters, verify their entitlement to vote, and
    sign the VLCRFs after the fact.  If this had been done, the application judge
    noted that the City might have been in a position to establish that the
    statutory non-compliance had not affected the result of the election.

[114]

Lederman J. left
    it to the panel of the Divisional Court hearing the appeal to determine the
    ultimate admissibility and the weight of Augimeris evidence, as well as the
    costs of the motion.

(c)

Costs Before the Divisional Court

[115]

Before outlining
    the Divisional Courts decision on costs, I will briefly review two
[5]
preliminary issues the Divisional Court was asked to determine at the outset of
    the appeal which are relevant to the costs portion of this judgment.

[116]

First, Augimeri
    sought to raise a constitutional argument not raised in the original
    application, namely that the requirement under the MEA that a person who is not
    on the voters list complete a VLCRF in order to cast a vote was a
    constitutional violation under s. 2(b) and s. 15 of the
Canadian Charter of
    Rights and Freedoms
.  In its preliminary reasons, reported at 2011 ONSC
    5570, the Divisional Court declined to hear the constitutional argument. 
    Jennings J., writing for the Court, noted that the application judge who
    allowed Augimeri to be added as a party had directed that her participation not
    unduly widen the focus of the appeal.  Jennings J. also observed, at para. 2,
    that the record was woefully inadequate to support the proposed challenge.

[117]

Second, Augimeri
    sought to file certain affidavit material before the Divisional Court in
    support of her position that the election was valid.  The court admitted some
    of Augimeris affidavits but declined to admit others. The Divisional Court
    declined to admit that part of her material relating to efforts made on her
    behalf to determine the eligibility of voters by canvassing them and having
    them sign forms, primarily on the basis that these affidavits were hearsay and
    raised concerns about reliability: see the Divisional Courts preliminary
    reasons, reported at 2011 ONSC 5611, and its judgment on the main appeal, at
    paras. 42-43.

[118]

I will explore
    the significance of these preliminary matters to the issue of costs below.

[119]

The parties
    submissions on costs before the Divisional Court were as follows.  Cusimano
    asked that he be permitted to retain the $65,000 in costs awarded to him by the
    application judge, and that there be no costs of the appeal before the
    Divisional Court ordered on the grounds that it was a public interest
    litigation.  The City sought $5,000 from Cusimano for its costs of the appeal.
    Augimeri sought costs of her appeal payable by the City either on a substantial
    or partial indemnity basis, including her costs of the motion to be added as a
    party.

[120]

Sproat J.,
    writing for the Court, set out several principles guiding the courts exercise
    of discretion of whether to order costs, at paras. 12-31:

·

While a statutory predecessor of the MEA provided for a
    presumption that the costs of a candidate in a recount case would be paid by
    the municipality, the MEA no longer contains that provision.  There is
    therefore no presumption under the MEA that the City is obliged to pay the
    costs of all litigants.

·

The MEA contemplates that costs awards could be made between
    challengers and elected officials in s. 84(7), which relieves a candidate from
    liability for costs if he or she disclaims all right to the office.

·

Candidates are able to raise money through public fundraising to
    cover campaign expenses, and s. 67(2) of the MEA specifically includes
    [e]xpenses relating to proceedings under section 83 (controverted elections)
    as a category of campaign expenses.  Candidates may therefore use campaign
    donations to defray litigation expenses.

·

As a general rule, in these cases, a losing litigant will pay
    costs to a winning litigant.

·

It is only in truly extraordinary cases that a successful party
    would be required to pay costs to an unsuccessful public interest litigant.

·

The court may require a successful municipality to pay costs to
    another successful party, in appropriate circumstances.

[121]

Applying these
    principles to the costs award made by the application judge, Sproat J. ordered
    that the $65,000 costs award against the City in favour of Cusimano be set
    aside.  In doing so, he observed that Cusimano had a significant personal
    interest in the litigation, and that he could have chosen other means besides a
    court proceeding to ensure strict compliance with the MEA in the future.

[122]

Sproat J. also dismissed
    the objection that setting aside the costs order made by the application judge
    would deter all but very wealthy candidates from contesting elections.  He held
    that alternate sources of funding would likely be readily available for
    meritorious cases and that [a]n arguable, interesting case is likely to
    attract able counsel who will take the case on other thana straight hourly
    basis: para. 34.  Finally, he ordered Cusimano to bear his own costs of the
    appeal before the Divisional Court.

[123]

In regard to
    Augimeris costs before the Divisional Court, Sproat J. held that she was a blameless
    and successful party entitled to her costs: para. 48.  She also deserved at
    least partial credit for the Citys decision to appeal the application judges
    order.

[124]

Having concluded
    that either the City or Cusimano would be liable for Augimeris costs, Sproat
    J. noted that the City was ultimately responsible for the election and that it
    was the mistakes of election officials that had resulted in so many unsigned
    VLCRFs.  The City was also better equipped than a party in Cusimanos position
     now responsible for his own legal expenses  to bear the costs incurred by
    Augimeri, who was simply in the wrong place at the wrong time and so embroiled
    in litigation: para. 37.  He therefore held, although the City was
    successful on the appeal, it would nonetheless bear the cost of Augimeris
    appeal.

[125]

However, as
    there was no misconduct on the part of the City, there was no justification for
    awarding costs on a substantial, as opposed to a partial, indemnity basis.  In
    addition, Sproat J. noted that Augimeri had expended considerable time and
    effort pursuing unmeritorious issues or duplicating the efforts of the City.  He
    therefore reduced the partial indemnity costs award to Augimeri in two ways:

·

First, he reduced the award by $10,000 to reflect costs incurred
    in relation to the constitutional challenge.  Sproat J. noted, at para. 55,
    that the Divisional Court found the record woefully inadequate to support the
    challenge, and that Augimeri had been ordered by Lederman J. not to unduly
    [widen] the focus, scope, or nature of the appeals.

·

Second, he reduced the award by an additional $15,000 to reflect
    costs incurred by Augimeri in obtaining voter affidavits ultimately ruled
    inadmissible by the Divisional Court.  Sproat J. held, at para. 56, that
    Augimeri ought not to have undertaken such a canvass.  He repeated the
    application judges comment, at para. 59 of her reasons, that such a canvass
    may have been possible for the City, but that it was not something that the
    applicants could have done.  He felt her comment should have alerted Augimeri
    not to undertake such a canvass.

In the result, he ordered the City to pay Augimeri
    $40,000 for the costs of her appeal.

[126]

In addition, Sproat
    J. considered the costs of Augimeris motion to be added as a party.  He held
    that Augimeri had bettered that offer by being granted party status and leave
    to file additional evidence, and that Cusimanos opposition to Augimeris
    motions was unreasonable and driven only by personal or political motives.  He
    ordered Cusimano to pay Augimeri $32,500 for the costs of her motion.  This
    amount was less than the amount of costs Augimeri sought on a substantial
    indemnity basis, $39,500, but greater than her partial indemnity costs of
    $26,500.

[127]

Given the risk
    that Augimeri would not be able to collect her costs against Cusimano, he made
    the City jointly and severally liable for the costs of the motion, but ordered
    Cusimano to indemnify the City for any costs of the motion it paid.

(d)

Opitz
and Costs

[128]

The decision on
    costs in
Opitz
has obvious relevance for this portion of the appeal. 
    Although the Supreme Court was considering a federal election under the CEA,
    the same considerations are applicable in the municipal context.  In addition,
    both the CEA and the MEA are similarly silent with respect to who should bear
    the cost of a challenge to the validity of an election.
[6]


[129]

As in this case,
    in
Opitz
the application judge, Lederer J., held that a by-election
    would have to be held on account of irregularities in the electoral process.  The
    runner-up candidate, who instigated the challenge before the application judge,
    sought costs from Elections Canada.

[130]

Lederer J. began
    his decision by commenting that costs, while always in the discretion of the
    court, are generally awarded to the successful party.  Proceedings challenging
    the validity of elections, however, are unique because there will often be no successful
    or unsuccessful party, at least in the traditional sense.  Unless misconduct
    is alleged, both candidates and the governmental body administering the
    election stand on an equal footing in seeking the true result of the election.

[131]

Lederer J. noted
    that neither electoral candidate had been the cause of, or implicated in, the
    ballots he set aside.  Mistakes in the conduct of an election are inevitable. 
    One of the checks on these errors is an application to set aside an election. 
    Both the person who had been declared the victor and the person seeking to
    invalidate the result were in a similar position insofar as blame was concerned
    and each had the same potential claim for costs.

[132]

Lederer J. further
    commented that in the application before him the Chief Electoral Officer had
    taken and maintained a position of neutrality.  Counsel had merely advised the
    court of policy considerations and provided an understanding of the legislative
    framework governing elections.  Lederer J. held that the Chief Electoral
    Officers neutrality was entirely appropriate, stating[i]t is not for the
    person holding [that] office to take a position that favours one candidate to
    the detriment of others: para. 7.  However, as a consequence, the Chief
    Electoral Officer could not be said to be an unsuccessful party.

[133]

For these
    reasons, Lederer J. held that each party should be responsible for its own
    costs.  In so concluding, he acknowledged that coming to court can be
    expensive.  However, he observed that proceedings of this nature are a matter
    of public interest, and that it is part of the collective responsibility of
    being a Canadian citizen to bring such matters to court. There was also no evidence
    before him that the parties did not have the necessary resources to bear their
    own costs.

[134]

It does not
    appear that the application judges order on costs was appealed, and the
    Supreme Court does not address it.  With respect to costs of the appeal before
    it, the majority held,  without commenting further, that no award as to costs would
    be made [i]n view of the circumstances of this case:
Opitz
, at para.
    133.

(2)

The Parties Positions Respecting the Divisional Courts Decision on Costs


[135]

Before this
    court, Cusimano seeks costs of the proceedings before the application judge and
    the Divisional Court on the basis that this case is meritorious public interest
    litigation.  He submits that he is in the same position as Augimeri; both are
    the victims of mistakes made by City officials.  He also asks this court to
    overturn the award made against him by the Divisional Court for Augimeris
    costs on the intervention motion.  He makes two basic submissions: a) the
    Divisional Court overstated her success on the motion and there was no reason
    to award her elevated costs; and b) he is unable to pay the costs award.

[136]

Augimeri has
    cross-appealed the Divisional Courts decision on costs.  Augimeri submits that
    the Divisional Court erred in awarding her too low an amount for costs or
    alternatively that she should have received costs on a substantial indemnity
    basis.  She submits that the Divisional Court incorrectly minimized the
    importance of the role she played.  Sproat J. acknowledged that her stated
    intention to become a party and challenge the application judges decision
    seems to have been a determining factor in the Citys decision to appeal.

[137]

She also argues that
    the reduction in costs of $10,000 to reflect her unsuccessful constitutional
    challenge was miscalculated.  She says that a junior lawyer completed almost
    all the work done in relation to that argument, and the reduction should have
    been, at most, $5,500.   In relation to the further reduction of $15,000 for
    the voter canvassing costs, Augimeri submits that the evidence she provided was
    justified by the application judges suggestion that such evidence would be
    helpful, the Citys failure to obtain that evidence itself, and the scope of Lederman
    J.s order allowing her to intervene as a party.

[138]

Finally,
    Augimeri submits that it is unrealistic to expect candidates to raise funds for
    their own legal expenses, given the finite pool of potential contributors and
    the restrictions in the MEA on maximum contributions and timeframes for
    fundraising.

[139]

The City has not
    appealed the award of costs against it in favour of Augimeri.  The City asks
    that Cusimanos appeal of the Divisional Courts costs order be dismissed, and
    that Augimeris cross-appeal as to costs also be dismissed. The City submits
    that the Divisional Court made no error in its decision on costs and that the
    courts award should be upheld for the reasons it gave.  In addition, the City
    raises a preliminary objection to Augimeris cross-appeal on the basis that she
    was required to obtain leave to appeal costs, but failed to raise any arguments
    in her factum as to why leave should be granted.

(3)

Analysis of Costs for Augimeris Motion to Intervene and Proceedings
    Before the Application Judge and the Divisional Court

[140]

I turn now to my
    analysis.  As I will explain below, subject to the impact
Opitz
may
    have on costs awards in future cases of this nature, I agree generally with the
    principles enunciated by the Divisional Court.  However, with respect to both
    the application judges order of costs in favour of Cusimano and the quantum of
    Augimeris costs before the Divisional Court, I believe the Divisional Court
    erred in applying those principles.

[141]

I will first
    consider Cusimanos request that we award him costs of all the proceedings and dismiss
    the Divisional Courts order against him for the costs of Augimeris motion.  I
    agree with Cusimano that he should receive a portion of his costs throughout. I
    see no grounds, however, for disturbing the costs award against him for
    Augimeris motion.

[142]

Although
    Cusimano initiated the court proceedings, the Divisional Court acknowledged in
    its reasons on costs that it was reasonable for him to do so.  Indeed, the
    narrow majority by which the Supreme Court resolved
Opitz
, a case in
    which nearly identical legislative language was at issue, amply supports this
    conclusion.

[143]

In refusing
    Cusimanos request for costs, the Divisional Court acknowledged that costs
    could be awarded against a blameless, successful party such as the City in truly
    extraordinary cases  for example, where the issue litigated was of national
    and international significance  but held that this case was not one of them.

[144]

I agree that the
    City may be required to pay costs to an unsuccessful applicant in truly
    extraordinary cases.  I disagree that this case is not one of them.  In my
    opinion, the Divisional Court erroneously minimized the public interest
    component of this case.

[145]

The Divisional
    Court held that [a]t its highest, Cusimano[was] endeavouring to hold election
    officials to strict compliance with the technical requirements of the
M.E.A.

    and that Cusimano might have pursued the same public interest objective by
    alternate means: para. 33.  For example, Sproat J. suggested Cusimano might
    have brought perceived failings in the training and diligence of election
    officials to the attention of the City Clerk, the Mayor and members of Council,
    the media and the public: para 33.

[146]

The public
    interest went far beyond this.  These proceedings dealt with whether the omission
    of the election officials signature on the VLCRFs, a procedural irregularity,
    did not affect the result of the election of Augimeri as a City Councillor
    pursuant to s. 83(6) of the MEA.  The interpretation of these words was of
    great importance to all municipal elections held in Ontario, as the intervener
    City of Mississaugas factum stressed.

[147]

The question of
    whether the strict procedural approach or the substantive approach should be adopted
    was also of importance throughout Canada, as indicated by the appeal in
Opitz
,
    a case of national interest concerning the equivalent phrase in the CEA.  Notably,
    on the important issue of onus of proof, the majority of the Supreme Court
    agreed with and cited the Divisional Courts reasons in this case, and the
    approach the majority adopted closely paralleled that of the Divisional Court.

[148]

The case before
    us is thus clearly a truly extraordinary case.

[149]

That said, the
    principles underpinning the Divisional Courts decision on costs may have been
    overtaken by
Opitz
.  As outlined above, the application judge places
    both the successful and unsuccessful party and the election administrator (who
    was playing a neutral role in the application) on an equal footing.  In a case
    like
Opitz
, where there is no allegation of misconduct and when
    inability to pay costs has not been shown, he requires each party to bear his
    or her own costs.  The Supreme Court also elected not to order costs of the
    appeal before it (though its justification for doing so is unclear).  On a go
    forward basis, when the City has taken a position of neutrality, it may therefore
    be appropriate for the parties disputing the validity of an election in good
    faith on the basis of procedural errors to be on an equal footing with respect
    to costs.

[150]

I cannot,
    however, place Cusimano and Augimeri on an equal footing by awarding no costs
    of the appeal before the Divisional Court.  As I have indicated, the City did
    not appeal the partial award of costs against it in favour of Augimeri.  Thus,
    this court has no jurisdiction to make an order of no costs respecting the
    costs incurred before the Divisional Court.  The only way in which Cusimano and
    Augimeri can be placed on an equal footing would be for this court to make an
    award of costs on a partial indemnity scale in Cusimanos favour.

[151]

In any event, a
    no costs order would not be appropriate with respect to the costs incurred
    prior to the Supreme Courts decision in
Opitz
, having regard to the
    existing jurisprudence at the time of the Divisional Courts decision, the Citys
    active participation throughout the proceedings, and the fact that a costs
    award would not have been outside the Citys expectations.  I also note that bearing
    Cusimanos costs will cost the City much less than conducting a by-election.  As
    the Divisional Court noted, the City of Mississaugas evidence indicated it
    budgeted $445,000 to conduct one such by-election.

[152]

For these
    reasons, I agree with Cusimano that, although he was not successful before the
    Divisional Court, the City should pay his costs of the application fixed by the
    application judge at $65,000 and his reasonable costs before the Divisional
    Court on a partial indemnity basis.  In his factum, Cusimano did not state the
    amount of costs he was seeking for the appeal before the Divisional Court. 
    Having regard to the costs awarded to Augimeri by the Divisional Court, the
    fact that Cusimano was a respondent (and therefore expected to incur somewhat lower
    costs than the appellant), and the costs outline Cusimano filed on the appeal
    to this court, I would award him costs of his appeal to the Divisional Court on
    a partial indemnity basis of $30,000, inclusive of all disbursements and taxes.

[153]

I must now deal
    with Cusimanos appeal of the costs awarded against him by the Divisional Court
    on Augimeris intervention motion to be added as a party. Cusimano submits that
    the Divisional Court overstated Augimeris success on the motion, that rule
    49.10 ought not to be applied, and that there was no basis on which to award
    Augimeri elevated costs.

[154]

The Divisional
    Court did not err in making the award it did and I would maintain its award of
    costs to Augimeri fixed at $32,500.  For the reasons given by the Divisional
    Court, Augimeri clearly bettered Cusimanos Rule 49 offer to settle and this
    fact entitles her to costs on a higher scale than partial indemnity costs.
    Furthermore, as the Divisional Court observed, there was no public interest
    aspect to Cusimanos opposition to the motion.

[155]

With respect to
    Augimeris cross-appeal of the Divisional Courts award of costs, the City
    submits that Augimeri was required to do more than simply request that, if
    necessary, leave to appeal be granted in her Notice of Cross-Appeal, as she
    did. I do not agree. Rule 61.07 of the
Rules of Civil Procedure
governs cross-appeals to this court. Rule 61.07(1.2) provides that a
    respondent shall obtain leave to appeal in the manner provided by
    subrule61.03.1(18)if the cross-appeal is taken under a statute that requires
    leave for an appeal. The City is correct in its submission that the Divisional
    Courts decision on costs falls within the ambit of s. 133(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C. 43, which is a statute requiring leave
    for an appeal within the meaning of rule 61.07(1.2). Augimeri was, therefore,
    required to obtain leave in the manner provided by rule 61.03.1(18). Rule
    61.03.1(18)(a) stipulates that the request for leave to appeal shall be
    included in the notice of. cross-appeal This is precisely what Augimeri did.
    Augimeri therefore complied with her obligations under the
Courts of
    Justice Act
and the
Rules of Civil Procedure
.

[156]

My decision as to whether or not to grant leave is
    informed by this courts statement in
Brad-Jay Investments Ltd. v.
    Szijjarto
(2006), 218 O.A.C. 315 (C.A.),
    leave to appeal to the S.C.C. refused, [2007] S.C.C.A. No. 92.  In that case,
    the court stated, at para. 21, [l]eave to appeal a costs order will not be
    granted save in obvious cases where the party seeking leave convinces the court
    there are strong grounds upon which the appellate court could find that the
    judge erred in exercising his discretion. As I explain below, I am of the
    opinion that this appeal is one such case.

[157]

However, I do
    not agree with Augimeri that Cusimanos conduct in these proceedings is such
    that elevated costs are warranted.  As noted by Augimeri, normally substantial
    indemnity costs are awarded where there has been reprehensible, scandalous or
    outrageous conduct on the part of one of the parties:
Young v. Young,
[1993]
    4 S.C.R. 3, at p. 134.  Cusimanos conduct, though questionable at times, did
    not rise to this level.

[158]

I also do not
    accept Augimeris complaint regarding the Divisional Courts reduction of her
    costs on account of her unsuccessful constitutional argument.  In my opinion,
    her submission is completely met by the Divisional Courts comment, at para. 57
    of its reasons, that the lower figure for these costs in Augimeris costs
    outline assumed no time was spent by either the junior lawyer or senior counsel
    in preparing for the appeal.  I would also note that the courts award of costs,
    and for that matter its reduction of costs, is not an exact mathematical
    calculation.  Save as indicated below, I would not increase the quantum of
    costs awarded to Augimeri.

[159]

The exception I
    would make with respect to Augimeris costs relates to the voter canvass issue,
    for which her costs award was reduced by $15,000.  She submits that it was
    reasonable for her to incur the expense to obtain such evidence because the
    application judge suggested that it was something the City could have done to
    validate the election after the fact.

[160]

I agree with
    Augimeri.  Furthermore, as I noted above, Augimeri was permitted by the motion
    judge to provid[e] evidence from voters establishing that the elections
    officials in question at each poll did take the necessary steps to verify
    identities and to show that those voters listed on the VLCRFs were in fact
    eligible to vote.  Short of doing what she did, I do not see how Augimeri
    could have obtained the evidence she was given permission to present.

[161]

The Divisional
    Court observed that voter secrecy was not breached by Augimeris efforts.   Its
    concern that some persons who refused to cooperate with Augimeris volunteers
    and that those persons who provided answers to them may have provided answers
    that were influenced one way or the other by the partisanship of the
    interrogators is speculation.   In the circumstances the Divisional Courts
    criticism of Augimeri for obtaining this evidence is misplaced.

[162]

While the
    evidence obtained from the voters may have been hearsay, in the sense that a
    representative of Cusimano was not present when the evidence was obtained,
    Cusimano could have cross-examined on the sworn affidavits had he chosen to do
    so.   He did not.  The affidavits provided direct evidence as to what happened
    at the polls, evidence that Cusimano submitted was lacking.  Although, in the
    end, the Divisional Court had the discretion not to admit this evidence, it was
    reasonable in the circumstances for Augimeri to obtain it.  The Divisional
    Court erred in penalizing Augimeri in costs for doing so.  I would therefore allow
    the cross-appeal to the extent of $15,000.

(4)

Costs of this Appeal

[163]

I must now deal
    with the costs of this appeal.  Cusimano seeks costs of the appeal on a partial
    indemnity basis in the amount of $30,257.50.  Augimeri seeks costs of
    $65,239.45 on a partial indemnity basis.  The Citys position is that, based on
    the decision in
Opitz
, no costs should be awarded and each party
    should bear his or her own costs.

[164]

Unlike the
    situation in
Opitz
, where the Chief Electoral Officer took and
    maintained a position of neutrality, the City took a position in favour of
    maintaining the election result before the application judge and, after some
    hesitation, took on the main role of appellant before the Divisional Court. 
    The City also played an active role as a respondent in the appeal before us.  It
    is therefore too late, in the light of the role the City has played in these
    proceedings, for the City to submit that there should be no costs award made
    against it on the basis of
Opitz
.

[165]

With respect to
    Cusimanos position, the decision in
Opitz
was released by the Supreme
    Court on October 25, 2012, shortly before this appeal was heard on November 8,
    2012.  The outcome of this appeal should have been clear to Cusimano.  He did
    not, however, abandon his appeal.  All parties were therefore forced to
    undertake the additional expense of filing supplementary facta and appearing
    for a full day of argument.

[166]

Because of this,
    I am inclined not to award Cusimano any costs of the appeal before us. 
    However, I recognize that he incurred costs in preparing for this appeal prior
    to the Supreme Courts decision in
Opitz
and that he was partially
    successful in his appeal on the issue of costs.  Balancing these factors, I am therefore
    of the opinion that a more measured response is appropriate.  I would order
    costs of this appeal payable by the City in favour of Cusimano, fixed in the
    amount of $10,000, inclusive of all taxes and disbursements.

[167]

Augimeri is
    entitled to her costs of the appeal on a partial indemnity basis, but not in
    the amount of $65,239.45 she is seeking. I agree with the City that the costs
    being sought are beyond the amount any party would reasonably expect to pay.  I
    also agree with the City that one counsel fee, and not three, is appropriate.  That
    said, Augimeris factum, supplementary factum, and oral submissions were of
    assistance.  She also achieved partial success on her cross-appeal with respect
    to costs.  I would, therefore, order costs payable by the City, fixed in the
    amount of $30,000, inclusive of all taxes and disbursements.

(5)

Summary of Costs

[168]

Based on
Opitz
,
    on a go forward basis, when the validity of an election is challenged on
    account of procedural errors rather than misconduct, the City adopts a position
    of neutrality, and there is no indication that the parties do not have the
    necessary resources to bear their own costs, the parties may generally expect
    to bear their own costs.  In the litigation before us, however,
Opitz
cannot be applied, nor would it be appropriate to do so.

[169]

Cusimano is
    entitled to have his costs before the application judge, fixed in the amount of
    $65,000, restored.  He is also entitled to his costs before the Divisional
    Court, fixed in the amount of $30,000, and his costs of this appeal, fixed in
    the amount of $10,000, payable by the City.

[170]

Augimeri is
    entitled to have her costs of the intervention motion as ordered by the
    Divisional Court.  She is also entitled to her costs of the appeal before the
    Divisional Court of $40,000 increased by $15,000, to reflect the extent to
    which her cross-appeal is allowed.  In all other respects, her cross-appeal is
    dismissed.

[171]

Augimeri is
    entitled to have her costs of the appeal before us paid by the City.  These
    costs have been fixed in the amount of $30,000 inclusive of all taxes and
    disbursements.

Released: Dec. 24, 2012                              Karen
    M. Weiler J.A.

KMW                                                                 I
    agree R.G. Juriansz J.A.

I
    agree M. Tulloch J.A.





[1]
Cusimano was joined in his application by Michael Sullivan, the unsuccessful
    candidate by 56 votes for the position of School Trustee for Ward 4 of Toronto
    District School Board.  Sullivan also participated in the proceeding before the
    Divisional Court, but was not a party to the appeal before this court. 
    Therefore, I will confine these reasons to the Ward 9 election.



[2]
According to the Divisional Court, there were some 1100 VLCRFs submitted in
    Ward 9.  374 were not signed by an election official.  Only 286 of those
    VLCRFs  were used to add a voter to the voters list.  Of these 286, all but 11
    had signed declarations by the voter seeking to be added.



[3]
Persons prohibited from voting under s. 17(3) are inmates serving a sentence in
    a penal or correctional institution, a corporation, an executor, trustee or any
    other person acting in a representative capacity, except as a voting proxy in
    accordance with s. 44 of the MEA, and persons convicted of a corrupt practice
    under the MEA, if the election is less than five years after the date of the
    election in respect of which they were convicted.



[4]
According to Cusimano, 108 VLCRFs that were not signed by an election official
    did have a confirming checkmark.  However, not all of these VLCRFs were
    completed for the purpose of adding a voter to the voters list.



[5]
Augimeri asked the Divisional Court to consider a third preliminary issue, which
    she raised again in her cross-appeal before this court.  She submits that
    Cusimano lacked standing to bring the application in the first place.  Without
    determining whether Cusimano had standing or not, Dambrot J. held, at para. 45,
    that it would be contrary to the public interest to set aside the decision of
    the application judge on such a technical basis.  I too decline to address
    this issue, as I have no decision at first instance to review.  I would note,
    however, that Augimeris request to adduce evidence of misconduct on the part
    of Cusimano was expressly denied by Lederman J. when he granted her leave to be
    added as a party to the appeal.



[6]
Section 526(1) of the CEA does require an application under s. 524 to be
    accompanied by security for costs in the amount of $1,000.  However, it is
    clear from the decision in
Opitz
that this provision is not
    determinative of who will ultimately bear the costs of a proceeding challenging
    the validity of an election.  Section 306 of the CEA, for example, expressly
    provides that if a winning candidate prevails on a recount that has been
    ordered pursuant to the act, the person who applied for the recount shall pay
    the winning candidates costs. Section 310 permits a candidate to make an
    application to the Chief Electoral Officer for reimbursement of his or her
    costs in respect of a recount.


