2010 ONSC 6432, 2010 ONSC 6432

CITATION : Brunton v. Fort Erie (Town), 2010 ONSC 6432 COURT FILE NO.: 1825/10 DATE: 2010/11/22 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) William Brunton ) ) ) Eric K. Gillespie, for the Applicant ) Applicant ) ) - and - ) ) ) The Corporation of the Town of Fort Erie, Carolyn Kett and Douglas Martin ) ) ) David G. Boghosian, for the Respondents The Corporation of the Town of Fort Erie and Carolyn Kett ) Respondents ) ) Thomas A. Richardson, for the Respondent Douglas Martin ) )) HEARD at Welland: November 19, 2010 The Honourable Justice T.

Maddalena MOTION ENDORSEMENT THE ISSUES [ 1 ] The applicant brings an application directing the Clerk of the Town of Fort Erie to conduct a manual recount of all ballots cast in the municipal election for the office of Lord Mayor held on October 25, 2010. [ 2 ] The real issue for the applicant is not the manual recount of all ballots, but the recount of approximately 60 to 64 ballots he says were not counted by the vote tabulating machines (hereinafter referred to as “VTMs”). [ 3 ] In the motion before me, the moving parties, The Corporation of the Town of Fort Erie and Carolyn Kett, move to strike paragraphs 9 and 11 of the affidavit of William Brunton, sworn November 14, 2010 (hereinafter referred to as “the first affidavit”), and further move to strike paragraphs 12 and 13 of the affidavit of William Brunton, sworn November 18, 2010 (hereinafter referred to as “the second affidavit”).

[ 4 ] The moving parties state that the offending paragraphs constitute contentious hearsay and are contrary to Rule 39.01(5) of the Rules of Civil Procedure . [ 5 ] Further, the moving parties state that the applicant has not raised prima facie reasonable grounds to cause the results of the election to be in doubt, contrary to s.58(1) of the Municipal Elections Act , S.O. 1996, c. 32 . [ 6 ] Mr. Douglas Martin takes no position before the court on the aforementioned issues.

THE FACTS [ 7 ] The facts are that municipal elections were held October 25, 2010 across Ontario. [ 8 ] The results of the mayoral electorate in Fort Erie were tabulated as follows:- Douglas Martin 4,836 votes Ann-Marie Noyes 4,832 votes Margin: 4 votes [ 9 ] A municipal recount was requested by Ms.

Noyes. [ 10 ] On October 29, 2010 council passed the resolution approving the recount. [ 11 ] On November 9, 2010 the recount was conducted. [ 12 ] The recount was conducted using the same VTMs. [ 13 ] The results of the recount were as follows:- Douglas Martin 4,836 votes Ann-Marie Noyes 4,831 votes Margin: 5 votes THE FIRST AFFIDAVIT OF WILLIAM BRUNTON SWORN NOVEMBER 14, 2010 [ 14 ] Both paragraphs 9 and 11 in the first affidavit of William Brunton contain hearsay evidence. [ 15 ] Paragraph 9 deals with hearsay evidence from Ms.

Noyes regarding the 60 to 64 ballots that were not read or counted by the VTMs. [ 16 ] Paragraph 11 recites the applicant’s understanding and belief regarding the issue of 15 to 20 percent completion of the area within the oval that might satisfy the regulation but may not have been counted by the VTMs. THE SECOND AFFIDAVIT OF WILLIAM BRUNTON SWORN NOVEMBER 18, 2010 [ 17 ] Paragraph 9 of that affidavit states the deponent is advised by Ann-Marie Noyes who was advised by Ms. Kett regarding the 20 percent issue of the area within the oval on the ballot. [ 18 ] Paragraph 11 of the affidavit refers to a newspaper

article written by Mr. Spiteri and published November 10, 2010 quoting Carolyn Kett. Paragraph 12 refers to an

article in the Fort Erie newspaper written by Kris Dube published November 13, 2010 quoting Ms. Kett. Paragraph 13 of the affidavit is information from Mr. Dube whereby he purports to confirm information from Ms. Kett. [ 19 ] Both The Corporation of the Town of Fort Erie and Carolyn Kett argue that the issues relating to the 60 to 64 ballots and the 15 to 20 percent completion of the oval within the ballots are contentious hearsay.

They do not agree that those facts are not in dispute and therefore the evidence cannot be presented by way of hearsay as this offends Rule 39.01(5) which states as follows: “An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit.

R.R.O. 1990, Reg. 194 , R. 39.01 (5) .” [ 20 ] The applicant argues that the 60 to 64 ballots issue is not contentious since both The Corporation of the Town of Fort Erie and Carolyn Kett its Clerk have provided no evidence to the contrary. No one has challenged this issue and therefore it must be non- contentious. [ 21 ] The applicant further states that the Clerk, Carolyn Kett, had previously held out to the public that unless the 20 percent oval in a ballot was filled in, the VTM would not register it.

Therefore, the applicant argues that she cannot now state that the 20 percent issue is contentious when, in fact, both parties are now saying the same thing, i.e. the applicant is saying the issue is having completed the oval within the ballot to the extent of 15 to 20 percent, and Ms. Kett, the Clerk, states 20 percent must be completed for the VTMs to tabulate the ballot. [ 22 ] Accordingly, the applicant states both issues are therefore essentially non-contentious, and the hearsay evidence should be allowed.

CONCLUSIONS [23] The difficulty for the court is that the evidence regarding the two main issues, that is, the issue relating to the 60 to 64 ballots,as well as the issue relating to the 15 to 20 percent completion of the oval within the ballots, is all presented to the court by way ofhearsay, sometimes double or triple hearsay in the applicant’s affidavit. The fact is that the Town of Fort Erie and its Clerk, Ms.

Kett,are both before the court disputing the very issues the applicant claims are not in dispute. [24] I am satisfied that the facts relating to the 60 to 64 ballots and the 15 to 20 percent issue are in fact in dispute and cannot beput before the court via hearsay evidence. [25] Therefore, I order as follows: 1. Paragraphs 9 and 11 in the first affidavit of the applicant William Brunton are hereby struck. 2.

Paragraphs 9, 11, 12 and 13 in the second affidavit of the applicant William Brunton are hereby struck. [26] The result of striking those paragraphs would result in essentially a dismissal of the application. [27] However, I am mindful of those principles enunciated by the Supreme Court of Canada in Haig v. Canada, (SCC), [1993] 2 S.C.R. 995, at p. 1058-9 as follows: “The right to vote is of fundamental importance to Canadians and to our Canadian democracy. In the

interpretation of all enfranchising statutes the provisions granting the right to vote should be given a broad and liberalinterpretation. Every effort should be made to interpret the statute to enfranchise the voter. Conversely every effort should be made to limit the scope of provisions which tend to disenfranchise the voter.” [28] Therefore, taking into consideration the principles enunciated by the Supreme Court of Canada in Haig v. Canada, and theparticular facts of this case, I do not dismiss the application, but permit the applicant to file further evidence before the court in supportof the application.

COSTS [29] Unless otherwise agreed, I am prepared to consider written submissions on costs, limited to two pages. The moving partyshall serve and file submissions by November 29, 2010 at 5:00 p.m. The applicant shall serve and file by December 6, 2010 at 5:00 p.m.(I do not expect any costs submissions on behalf of Mr. Martin). [30] Submissions may be forwarded by facsimile to the attention of my assistant, Gabriella Daigle, at 905-732-1700. ___________________________ Maddalena, J. Released: November 22, 2010 COURT FILE NO.: 1825/10 DATE: 2010/11/22

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: William Brunton Applicant - and – The Corporation of the Town of Fort Erie, Carolyn Kett and Douglas Martin Respondents MOTION ENDORSEMENT Maddalena, J. Released: November 22, 2010