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Recounts at TCDSB: here is the law, do what you want

TORONTO – The action, or non-action, of the school board has left him with no choice but to seek relief in the Court. Phil Horgan, legal counsel to trustee candidate Robert Pella, in Ward 1 of the Toronto Catholic District School Board (TCDSB) issued a Notice of Application in Ontario Superior Court, together with reasons, for an order to recount of the ballots cast in the election held October 24. 

Given the one- vote margin of victory, both the incumbent and the challenger deserve certainty that all legitimate votes were counted and all illegitimate votes were discarded, said Mr. Horgan when contacted by phone. It is in everyone’s interests to ensure the validity of the outcome, he added.

Mr. Horgan had submitted a written request to the TCDSB on November 11, after having obtained from the [Toronto] City Clerk relevant information regarding the conduct of the election, the actual voting procedures and tabulations of the votes.

In the voice interview (and via email), Mr. Horgan explained that “Mr. Pella wants a recount because there are grounds to doubt the accuracy of the election in Ward 1 […moreover…] The circumstances were also unusual. Mr. Pella was leading by seven (7) votes, 2,139 to 2,1332, based on reported returns until past midnight”.

… “Then, after 2 AM, the results changed to show Mr. Joseph Martino, the incumbent, ahead by one (2,148 to 2,147), taking into account the tabulation of votes from long term care facilities. These latter votes were counted between 8:00 and midnight on the evening of the election.”

In the November 11 letter to the TCDSB, Mr. Horgan outlined reasons why some 259 votes required clarification.

The City, which has responsibility for administering the election, will only conduct a recount automatically if the vote ends in a tie. The TCDSB has the right to ask for a recount, but is not legally bound to do so, unless there is a tie vote. This has happened before; there is legal precedent in Ontario to guide the TCDSB.

Mr. Horgan asserts that it would be “the right thing to do” for the TCDSB to formally ask for a recount. He cited a prior case heard in Superior Court involving a one-vote election where the presiding judge ruled as follows:

The language of this section grants the school board the right to request a re- count. It does not impose a legal duty. I consider, however, that under circumstances such as these where the vote is extremely close there is a moral duty upon the board to resolve any uncertainty by requesting a re-count. A proper count of the votes cast is important to everyone in the area serviced by the school board.” – Justice Wright, Re Chapman and Lake Superior Board of Education, 1986 CanLII 2847 (ON SC).

Frank D’Amico, Vice-Chair of the TCDSB, ventured that the root cause of the issue may rest with the Municipality’s reliance on the technology used to conduct the election.

In the pic above, from the left: Joe Martino, lawyer Phil Horgan and Robert Pella

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