October 02, 2014
The upcoming municipal election in Toronto (and the rest of Ontario) may have you wondering – just who can run, anyway? And for that matter, who can vote? This excerpt from the CED Elections title covers candidates, including eligibility, nominations, withdrawal or death of candidates, election by acclamation, and agents of candidates, as well as the eligibility of electors, preparation and conclusiveness of the voters list and voting by proxy.
Elections
BY: Joan E. Dunlop
IV.3-4: Municipal Elections
Click HERE to access the CED and the Canadian Abridgment titles for this excerpt on westlaw Canada
Click HERE to access the CED and the Canadian Abridgment titles for this excerpt on Westlaw Canada
IV.3(a): Candidates – Eligibility
See Canadian Abridgment: PUB.II.6.a.iii Public law | Elections | Candidates | Eligibility | Miscellaneous
A person is eligible to be a candidate in a municipal election if he or she meets the requirements set by legislation1 and is not disqualified for any reason.2
Disqualifying clauses in such statutes are to be strictly construed.3 The disqualification of an undischarged bankrupt or insolvent does not operate merely if a person is insolvent within the meaning of the Bankruptcy and Insolvency Act4 unless that person has made an assignment in bankruptcy or had a receiving order made against him or her.5
Where a municipal election is contested by quo warranto rather than by ordinary contestation, the plaintiff must prove that the candidate was disqualified at the time of issue of the writ instead of at the time of the election.6 Quo warranto is a discretionary remedy and should not be granted where the applicant has another, equally effective remedy. Thus, where a plaintiff sought leave to proceed by way of quo warranto against a councillor, the application was dismissed because the plaintiff could have applied under municipal legislation to have the seat declared vacant.7 A provision which prohibits the election of a person who owes money to the city does not necessarily require that payment be a condition of continuing to hold office after election.8 If a candidate is indebted to the municipality for services rendered, he or she may not be qualified to be nominated, and is unable to remain in office if elected.9
A municipal election commences on the day of nomination. Therefore, subject to legislation to the contrary,10 a candidate who is disqualified as at that day is ineligible for election.11 Since an election includes the nomination, no distinction can be made between a disqualification existing at the time of the election and one existing at the time of nomination.12
Where a candidate is required to have "continually resided" in the city for a period preceding the election, he or she need not have been physically present at all times. A person may be absent from his or her ordinary place of residence for periods of time, so long as he or she returns there.13
IV.3(b): Nominations
See Canadian Abridgment: PUB.II.6.b.ii Public law | Elections | Candidates | Nominations | Municipal
Candidates are to be nominated in the manner prescribed by legislation.1
Fixing a day for nominations for a municipal election is an essential formality, and where nominations are made on a day other than that fixed by statute, the election is a nullity.2 Where a definite statutory hour for nomination is not observed, the election is not being conducted in accordance with the statutory requirements. However, an inadvertent delay may be covered by the curative provisions of the applicable legislation.3
Nomination papers that are regular must be accepted. A returning officer has no right to decide that a candidate is ineligible by reason of non-payment of taxes.4 A returning officer has no discretion to receive a nomination paper after the time fixed by statute, or to declare that a late nomination constitutes a good nomination.5 The only ground on which a nomination paper may be rejected is that it does not comply with the statutory requirements. Once a nomination paper has been accepted, the returning officer has no power to revoke that acceptance and reject the nomination.6 If nomination papers are in order on their face, the officer must receive them; he or she has no power to conduct an inquiry into the qualifications of nominated persons and on the basis of that inquiry declare a candidate to be elected by acclamation.7
Where nominations require that the candidate's full name be stated, a nomination with a candidate's initials instead of given names will not be rejected.8 Failure by a candidate to sign a form accepting nomination may be viewed as a technical oversight and will not lead to rejection of the nomination paper.9
A nomination by a person who is not a qualified elector pursuant to statutory requirements is a defective nomination.10
IV.3(c): Withdrawal or Death of Candidate
See Canadian Abridgment: PUB.II.6.e Public law | Elections | Candidates | Withdrawal of candidate
Provincial legislation contains provisions dealing with the withdrawal or death of candidates before close of the polls.1
IV.3(d): Election by Acclamation
See Canadian Abridgment: PUB.II.6.f Public law | Elections | Candidates | Miscellaneous
Where no more candidates stand nominated than there are vacancies to be filled, the returning officer is to declare the nominated candidates to be elected.1
The Ontario legislation also sets out the procedure to follow to fill a vacancy when the number of candidates declared to be elected is less than the number to be elected to the office.2
IV.3(e): Agents of Candidates
See Canadian Abridgment: PUB.II.6.d Public law | Elections | Candidates | Agents of candidates
Candidates in municipal elections may appoint persons to act as their agents during the campaign for election.1
IV.4(a)(i): Electors – Eligiblity – General
See Canadian Abridgment: PUB.II.7.a.ii.E Public law | Elections | Voters | Right to vote | In municipal elections | Miscellaneous
To be entitled to be registered as an elector, an applicant must meet the qualifications set out in the applicable legislation.1
IV.4.(a)(ii): Eligibility – Residence
See Canadian Abridgment: PUB.II.7.a.ii.A Public law | Elections | Voters | Right to vote | In municipal elections | Residency requirements
Residency requirements for qualification as an elector are determined by legislation.1
Where a statute entitles a person who becomes a resident of a municipality after a general election to be added to the voters list for a subsequent by-election, the provision should not be construed as requiring residence during the period of enumeration preceding the previous general election. The court should be scrupulous in construing statutes so as to ensure that a person does not lose the franchise.2
Persons having residences in more than one municipality may be required to elect one residence for the purpose of a municipal election. In that event, casting a vote in one electoral division is sufficient evidence of such election.3
In order to establish residence, it is necessary to show continuous residence, but qualification is not lost by a mere temporary absence.4
IV.4(b): Preparation of Voters List
See Canadian Abridgment: PUB.II.7.b.ii.A Public law | Elections | Voters | Voters' lists | Municipal | Preparation of lists
The registration of electors for the compilation of a voters list and the revision of such lists are governed by legislation.1
The right to vote ought not to be lost to anyone entitled to vote if the right can be sustained on a reasonable view of the requirements of the statute. Accordingly, an elector whose surname is incorrectly spelled on the voters list should not be deprived of the franchise.2
Where election documents such as polling lists and books are held by the clerk in the capacity of returning officer, and inspection of such documents is prohibited by statute, mandamus will not lie to compel the clerk, in the general capacity as clerk, to produce all documents in his or her possession.3
IV.4(c): Conclusiveness of Voters List
See Canadian Abridgment: PUB.II.7.b.ii.C Public law | Elections | Voters | Voters' lists | Municipal | Conclusiveness of lists
A voters list is final and conclusive only if made so by statute, either expressly or by implication.1 Where a voters list is prepared and revised in accordance with the formalities required by the governing legislation, the list must be deemed to have been revised in accordance with law, and the court is not justified in going behind the revision to inquire into the electors' qualifications.2 An elector who is registered on a certified list need show only that he or she was resident within the proper zone, in order to be entitled to vote in that zone. Legislation should be liberally interpreted so that persons entitled to vote by reason of their being qualified will not have their franchise defeated by superficial or picayune formalities.3
IV.4(d): Voting by Proxy
See Canadian Abridgment: PUB.II.7.b.ii.D Public law | Elections | Voters | Voters' lists | Municipal | Miscellaneous
Ontario legislation provides for voting by proxy.1
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