November 17, 1999

To: Administration Committee

From: City Clerk

Subject: Municipal Elections - Proposed Legislative Amendments

Purpose:

This report responds to a request from the Corporate Services Committee to report on any necessary legislative amendments to the Municipal Elections Act, 1996 and Ontario Regulation 101/97 for the 2000 municipal election.

Funding Sources, Financial Implications and Impact Statement:

None.

Recommendations:

It is recommended that the Minister of Municipal Affairs and Housing be requested, as soon as possible, to make the amendments described in items 1 through 42 to the Municipal Elections Act, 1996 and Ontario Regulation 101/97, as applicable, and the Minister of Finance be requested to make the amendment set out in item 43 to the Assessment Act:

(1) a new subsection be added to section 8 to provide for a question or by-law that is to appear on the ballot to be submitted to the Clerk no later than eight weeks prior to voting day;

(2) subsection 15(2) be amended to read "The clerk may delegate to any election official any of the clerk's or deputy returning officer's powers or duties in relation to an election, as he or she deems necessary";

(3) subsection 16(1) be amended to read "A certified candidate may appoint scrutineers to represent him or her during voting and at the counting of votes, including a recount";

(4) a new subsection be added to section 17 to prohibit a non-resident elector from voting at his/her former qualifying address if he or she sells the interest in the property during the qualification period;

(5) a new subsection be added to section 22 that reads "This section is not intended to be a substitution for the revision process set out in sections 24 and 25";

(6) clause 24(3)(b) be amended to provide that the Clerk is to "advise the applicant of the approval" rather than return the approved revision application to the elector;

(7) a new subsection be added to section 25 to permit the Clerk to dismiss, without a hearing, any application which, in the opinion of the Clerk, is frivolous or vexatious;

(8) section 31 be amended to provide that nomination day be a Friday, 41 days prior to voting day (if voting day is moved to the Thursday after Thanksgiving);

(9) clause 33(2)(b) be amended to read "be accompanied by a declaration of qualification, in the prescribed form, signed by the person being nominated; and";

(10) a new clause be added to section 34 to require that no refund of the nomination filing fee be given until the required financial statement is received by the Clerk and the ninety day compliance audit period has expired;

(11) section 36 be amended to require that the withdrawal of a candidacy must be filed in person by the candidate or his or her agent;

(12) section 39 be amended to provide that should any mayoralty candidate die during the time period beginning the day after nomination day and before the close of voting on voting day, the election for the office of mayor shall be void and a by-election shall be held to fill the office;

(13) the principles (as set out by the Who Does What Panel) should be included in the Act. Alternatively, subsection 42(4) should be amended to read "The procedures and forms established by the clerk under this section, if arrived at in good faith, prevail over anything in this Act or the regulations made under it";

(14) a new subsection be added to section 42 to provide that if vote counting equipment is being used, clauses 47(5)(e) and 47(5)(f) and subsection 54(3) do not apply;

(15) subsections 44(2) and (3) be amended to clarify that a person may act as a proxy for another elector or for his or her family members but not both;

(16) subsection 44(4) be amended to read "The appointment of a voting proxy may be made only after the Tuesday following nomination day and does not remain in force after voting day";

(17) clause 44(5)(b) be amended to provide that a proxy voting appointment may be presented at the Clerk's office or any other location designated by the Clerk;

(18) subsection 45(4) be amended to provide that the space to be used for a voting place in multi-residential buildings greater than 100 units, buildings owned by a municipality or school board and provincially funded institutions shall be provided free of all charges;

(19) a new clause be added to subsection 47(1) to permit "any other person with the permission of the clerk" to be present at a voting place. A complementary amendment is also required to the lead-in of subsection 47(5);

(20) subsection 48(2) be amended to replace "in a voting place" with "in or at a voting place";

(21) clause 52(3)(a) be amended to provide the mark must be made "...within the designated marking space provided to the right of...";

(22) clause 55(1)(b) be amended to exclude the voters' list from placement in the ballot box;

(23) subsection 56(2) be amended to increase the time period for the conduct of a tied vote recount from ten to fifteen days;

(24) clause 57(1)(a) be amended to increase the time period for a council to pass a resolution requiring a recount from thirty to sixty days;

(25) subsection 57(2) be amended to increase the time period for the conduct of a recount requested by a council, local board or the Minister of Municipal Affairs and Housing from ten to fifteen days;

(26) subsection 58(4) be amended to increase the time period for the conduct of a court ordered recount from ten to fifteen days;

(27) paragraph 65(4)1. be amended to increase the time period for the setting of nomination day from thirty to sixty days after the need for a by-election is established;

(28) subparagraph 65(4)4.ii. be amended to provide that the assessment commissioner is to give the preliminary list of electors for a by-election to the Clerk at least twenty-one days prior to nomination day;

(29) paragraph 65(4)5. be amended to provide that the time period for applications to delete a name from the voters' list in a by-election end on nomination day;

(30) paragraph 68(1)2. be amended to provide that the campaign period ends on January 31 in the year following a regular election and ninety days after voting day in the case of a by-election;

(31) a new subparagraph be added to paragraph 68(1)4. to permit candidates a maximum of one additional year after the end of the regular campaign period to eliminate any deficit. A complementary amendment is also required to paragraph 68(1)5.;

(32) sections 77 and 78 be amended to set March 31 in the year following the regular election as the filing deadline for financial statements. For by-elections, the filing deadline should be 150 days after voting day;

(33) sections 77 and 78 be amended to provide a maximum additional campaign period of one year from the normal end of the campaign period. Only one supplementary financial statement would need to be filed within sixty days of the end of the additional campaign period;

(34) subsection 78(3) be amended to clarify that the supplementary financial statement is to be a total update of all the campaign financial activities from the date of nomination, not just the supplementary reporting period activities;

(35) clause 80(1)(b) be amended to read "a document filed under section 78 shows on its face a surplus, as described in section 79, and the candidate fails to pay the amount required by section 79 to the clerk by the relevant date";

(36) subsection 80(3) be amended to increase from five days to ten days the time for the clerk to send a default notice to candidates who have not met the financial filing requirements;

(37) subsection 80(6) be amended to require the candidate, within ten days of the date of the judge's declaration waiving the penalties due to inadvertence or an error in judgement, to file the required financial statement or pay over to the clerk the applicable surplus, as the case may be;

(38) subsections 81(3) and 81(10) be amended to increase from thirty days to sixty days the time periods for a council to consider a request for a compliance audit and the auditor's compliance audit report, respectively;

(39) review the issue of third party campaigning and make any necessary amendments to the Act that would impose on these individuals the same accountability and spending limits as candidates have;

(40) a new subsection be added to section 1 of Ontario Regulation 101/97 to provide that for the office of mayor for the City of Toronto Council the prescribed nomination filing fee is set at $1,000.00 and for the office of councillor for the City of Toronto Council the prescribed nomination filing fee is set at $500.00;

(41) section 5 of Ontario Regulation 101/97 be amended to increase the $0.50 cents per elector in the campaign expense spending limit formula. In deciding on an appropriate increase, the Province should have consideration to the Provincial candidate spending limit of $0.96 per elector or to providing for a cost of living allowance (COLA) increase to the $0.50 per elector originally established back in 1988. Any revised formula should provide for automatic COLA increases;

(42) section 9 of Ontario Regulation 101/97 be amended to include on the proxy form the telephone number of the elector making the proxy; and

(43) section 16.1 of the Assessment Act be amended to move the date for property owners to provide a listing of the residential tenants of buildings from July 31 back to May 31.

Council Reference:

City Council has already considered a report from the City Clerk on a possible amendment to the Act to change the date of the municipal election. On April 13, 14 and 15, 1999, City Council amended Clause No. 7 of Report No. 7 of the Strategic Policies and Priorities Committee by adding thereto a new recommendation number 5, so that the clause now reads as follows:

"(1) Council request the Minister of Municipal Affairs and Housing to amend the Municipal Elections Act, 1996, Section 5, to enable municipalities to pass a by-law to provide for a voting day as approved by the municipality. The amendment should limit the choice of dates to a day no later than the second Monday in November and no earlier than the Thursday after Thanksgiving in October;

(2) in the event the Minister is not in favour of Recommendation No. (1) above, the Minister be requested to institute a Province-wide municipal election date of the Thursday after Thanksgiving in an election year;

(3) Council indicate their support for the City of Toronto municipal election to be held on the Thursday after Thanksgiving in an election year;

(4) Council request the Minister of Municipal Affairs and Housing to amend the Municipal Elections Act, 1996, subsection 6(1) to enable municipalities to pass a by-law to provide for the beginning date for a new council. Such date to be no more than two weeks after the date of the election; and

(5) it is further recommended that, in the event the municipal voting day conflicts with religious holidays, the City Clerk be requested to seek the necessary amendment to the Municipal Elections Act, 1996 to hold additional advance polls."

On June 9, 10 and 11, 1999, City Council, in receiving for information, Clause No. 30 of Report No. 6 of the Corporate Services Committee under "Other Items", was advised of the following action taken by the Committee:

"(1) the attached background report, "Election 2000", be received for information at this time;

(2) a copy of this report be circulated to all Members of Council; and

(3) the City Clerk be authorized to undertake consultations with Members of Council, and through focus groups consisting of candidates, voters and other stakeholders, on the issues and draft proposals contained in the report and report on any necessary legislative amendments, policies and procedures to Council in July and December, 1999."

This report addresses the above directives of Council on any necessary amendments required to the Municipal Elections Act, 1996. Reports on the election process and procedures, and the by-laws required for the conduct of Election 2000 are also before the Committee.

Comments and /or Justification:

The 1997 municipal election was the first election conducted under the revised Municipal Elections Act, 1996 (the "Act"). The Act provided for greater discretion and flexibility in election administration to suit the particular needs of local municipalities. While many of the new provisions of the Act worked well, there are areas where amendments would further improve and simplify election administration.

During the preparation of this report, the City's Elections staff consulted with Members of Council and hosted six public meetings at the Civic Centres during the period October 18 to October 26, 1999. A number of citizens made presentations at the public meetings, some on the behalf of community and ratepayer groups. The input of both the Members of Council and the public were considered in developing the recommendations contained within this report.

These suggested amendments are in addition to the change to the municipal election day and the beginning of the term of council which have already been approved by City Council and forwarded to the Minister of Municipal Affairs and Housing.

To permit the necessary time for the Minister of Municipal Affairs and Housing to consider these suggested amendments to the Municipal Elections Act, 1996 and Ontario Regulation 101/97, this list should be forwarded to the Minister as soon as possible. The list should also be sent to the Minister of Finance for the one recommended amendment to the Assessment Act.

Attached as Appendix "A" to this report is a table which sets out the current wording of the sections of the Act that the following recommended amendments pertain to.

(1) Date of the Submission of a Question/By-law to Appear on the Ballot

Currently there is no legislated date for the last day a council, local board or the Minister of Municipal Affairs and Housing may submit a question or by-law to the Clerk to appear on the ballot. The late submission of a question or by-law to the Clerk has implications on ballot design and whether or not there is, in the Clerk's opinion, sufficient time to give proper notice of the question or by-law to the electors.

It is suggested a new subsection be added to section 8 to provide for a question or by-law that is to appear on the ballot to be submitted to the Clerk no later than eight weeks prior to voting day.

(2) Delegation of Deputy Returning Officer's Powers

The Act assigns specific legislated duties to the deputy returning officer (DRO). In order to make more effective use of the voting place staff, it is desirable that the Clerk be given the ability to delegate any of the DRO's duties to other election officials. This would result in improved customer service for the electors as more than one staff person at the voting place would be able to perform the DRO's duties.

It is suggested that subsection 15(2) be amended to read "The clerk may delegate to any election official any of the clerk's or deputy returning officer's powers or duties in relation to an election, as he or she deems necessary".

(3) Appointment of Scrutineers

Subsection 16(1) permits any candidate to appoint scrutineers to represent him or her at the voting places. However, as only the names of certified candidates appear on the ballot, only certified candidates should be entitled to appoint scrutineers. (This would be consistent with subsection 47(1) of the Act where only scrutineers appointed by certified candidates are entitled to be present in the voting place.)

It is suggested that subsection 16(1) be amended to read "A certified candidate may appoint scrutineers to represent him or her during voting and at the counting of votes, including a recount".

(4) Qualifications of Electors

The Act prohibits a resident elector, who has moved during the qualification period, from voting at his/her former qualifying address. No such prohibition exists for a non-resident elector who sells his or her interest in a property during the qualification period. This gives rise to a double standard for electors - one for resident electors and another for non-resident electors.

It is suggested that a new subsection be added to section 17 to prohibit a non-resident elector from voting at his/her former qualifying address if he or she sells the interest in the property during the qualification period.

(5) Corrections of Errors to the Preliminary List of Electors

Section 22 permits the Clerk to correct the preliminary list of electors for "obvious errors", typically being streets missed or listed in the incorrect voting subdivision. It has been suggested by some that this also gives the Clerk the power to add or delete names to the list. It is the opinion of the Elections staff that this is a broad and potentially dangerous interpretation of this section as names could be added or deleted without the necessary safeguards provided by the Act.

It is suggested that a new subsection be added to section 22 that reads "This section is not intended to be a substitution for the revision process set out in sections 24 and 25".

(6) Revision of List by Elector

Section 24 permits an elector to make application to the Clerk to have his or her name added to or deleted from the voters' list or to have the information on the list amended (such as school support). The Clerk, in approving the application, is required to return a copy of the approved application to the elector. When this application is made early in the revision period, any approved changes can be incorporated directly into the official voters' list for the voting place. However, as the elector has the approved application in his/her possession, it presents the opportunity for the elector to vote twice, once on the basis of being on the voters' list and once by way of the approved application. To enhance the integrity of the voting process, copies of the approved applications should only be returned to those electors whose change will not be reflected in the official voters' list, i.e. those made late in the revision process. Where the voters' list can be updated to reflect the change, the elector should only be advised of the approval (either verbally or by letter), not receive a copy of the approved application.

It is suggested that clause 24(3)(b) be amended to provide that the Clerk is to "advise the applicant of the approval" rather than return the approved revision application to the elector.

(7) Deletion of Name from the Voters' List

Section 25 permits a person to make application to the Clerk to have the name of an elector removed from the voters' list. When such an application is made, the Clerk is required to hold a hearing, with notice being given. Occasionally, there is no legal basis for the application being made, the applicant is merely incorrect in his or her facts. However, there is no ability for the Clerk to simply dismiss these applications, she must hold the hearing.

It is suggested that a new subsection be added to section 25 to permit the Clerk to dismiss, without a hearing, any application which, in the opinion of the Clerk, is frivolous or vexatious.

(8) Nomination Day

Nomination Day is a Friday, 31 days prior to voting day. With the potential of withdrawals occurring on the following Monday and the possibility of the need to call for additional nominations the week following nomination day, it poses a challenge for Elections staff to prepare sufficient ballots in time for the first advance voting day. Additional time between nomination day and voting day would help alleviate this and would also be of benefit for any municipality utilizing vote by mail or telephone voting.

Following Council's endorsement to move voting day to the Thursday following Thanksgiving, it is suggested that section 31 be amended to provide that nomination day be a Friday, 41 days prior to voting day.

(9) Nomination Requirements

Section 33 sets out the necessary requirements for a nomination form, including that the nomination must include a "consent to the nomination". As there is no longer a legislative need to obtain ten nominators, this requirement should be deleted; the candidate is, in effect, nominating himself or herself.

It is suggested that clause 33(2)(b) be amended to read "be accompanied by a declaration of qualification, in the prescribed form, signed by the person being nominated; and".

(10) Refund of the Nomination Filing Fee

Section 34 permits a refund of the nomination filing fee if the candidate withdraws his or her nomination, is elected to office or receives a prescribed percentage of the votes. To ensure compliance with the financial filing requirements, any refund should also be contingent on the candidate filing the required financial statements and the expiration of the compliance audit period.

It is suggested a new clause be added to section 34 to require that no refund of the nomination filing fee be given until the required financial statement is received by the Clerk and the ninety day compliance audit period has expired.

(11) Withdrawal of Nomination

Section 36 permits a candidate to withdraw his or her nomination. In order for the Clerk to satisfy herself that the withdrawal is legitimate, the candidate should be required to file the withdrawal in person or by an agent. This is similar to the requirement that a nomination must be filed in person or by an agent and gives the Clerk the ability to request identification and compare signatures to ensure it is a proper withdrawal.

It is suggested that section 36 be amended to require that the withdrawal of a candidacy must be filed in person by the candidate or his or her agent.

(12) Death of a Candidate

Section 39 provides that in the event of the death of a candidate for any office, the election shall proceed so long as no candidate would be elected by acclamation. Previously, the Act had different rules in the event of the death of a mayoralty candidate, being the election process was halted and a by-election was held. Given the importance of the role of the head of council, it is appropriate to return to the traditional rule whereby the death of any mayoralty candidate necessitated a by-election to be conducted.

It is suggested that section 39 be amended to provide that should any mayoralty candidate die during the time period beginning the day after nomination day and before the close of voting on voting day, the election for the office of mayor shall be void and a by-election shall be held to fill the office.

(13) Clerk's Procedures for Vote Counting Equipment/Alternative Voting Methods

Subsection 42(4) provides that the procedures and forms established by the Clerk for the use of vote counting equipment or alternative voting method prevail over anything in the Act as long as they are consistent with the principles of the Act. These principles, as set out by the Who Does What Panel, are:

- the secrecy and confidentiality of individual votes is paramount;

- the election should be fair and non-biased;

- the election should be accessible to the voters;

- the integrity of the process should be maintained throughout the election;

- there should be certainty that the results of the election reflect the votes cast; and

- voters and candidates should be treated fairly and consistently within a municipality.

Unfortunately, these principles are not articulated in the Act, leaving the Clerk in an untenable situation should a court challenge be made. It is expected that any clerk would always use his or her best judgement in setting out those procedures necessary to provide for the effective and proper use of the vote counting equipment or alternative voting method.

It is suggested that the principles (as set out by the Who Does What Panel) be included in the Act. Alternatively, subsection 42(4) could be amended to read "The procedures and forms established by the clerk under this section, if arrived at in good faith, prevail over anything in this Act or the regulations made under it".

(14) Secrecy of the Vote when using Vote Counting Equipment

When vote counting equipment is being utilized in an election, then certain provisions of the Act dealing with the scrutineers' ability to view the ballots during the counting process and to object to the counting of votes in a ballot should not apply. To do otherwise would compromise the secrecy of the vote as the ballot is, in effect, "counted" as it is inserted into the vote tabulator. If a scrutineer had the right to view the ballot they would know how the elector voted and would thereby violate the elector's right to a secret ballot.

It is suggested that a new subsection be added to section 42 to provide that if vote counting equipment is being used, clauses 47(5)(e) and 47(5)(f) and subsection 54(3) do not apply. (These legislative provisions relate to the examination of the ballots as they are being counted, objection to a ballot or votes within a ballot as it is being counted and objection to a ballot for not being in compliance with the prescribed rules, respectively.)

(15) Voting Proxies

Subsections 44(2) and (3) provide that a person may only act as a proxy for one other elector, unless the person is the spouse, sibling, parent, child, grandparent or grandchild of the elector making the proxy. Some confusion has arisen as to whether a person may act for both one other elector together with his/her family members.

It is suggested that subsections 44(2) and (3) be amended to clarify that a person may act as a proxy for another elector or for his or her family members but not both.

(16) Timing of Appointment of Voting Proxy

Subsection 44(4) provides that a voting proxy may only be made after nomination day. This is to ensure that the list of nominated candidates has been finalized so that the elector making the proxy can instruct the proxy on how the elector wishes him/her to vote. However, as nominations may be withdrawn up to 5:00 p.m. on the Monday following nomination day, the final list of certified candidates is not known until then.

It is suggested that subsection 44(4) be amended to read "The appointment of a voting proxy may be made only after the Tuesday following nomination day and does not remain in force after voting day".

(17) Place for Acceptance of Voting Proxies

Clause 44(5)(b) requires the elector being appointed as a proxy to present the proxy voting appointment to the Clerk at the Clerk's office. Given the size of the City of Toronto and the fact that services of the Clerk's Department are available at any of the six district offices and at Ward Centres during the election period, it would enhance customer service if voting proxies could be accepted at any location designated by the Clerk.

It is suggested that clause 44(5)(b) be amended to provide that a proxy voting appointment may be presented at the Clerk's office or any other location designated by the Clerk.

(18) Certain Voting Places to be Free of Charge

Subsections 45(4) and 45(5) provide that space for voting places must be provided free of charge in certain facilities (multi-residential buildings with 100 or more units, buildings owned by a municipality or school board and provincially-funded institutions). Some owners attempt to charge the City fees for administration or janitorial services, thereby defeating the intent of this section.

It is suggested that subsection 45(4) be amended to provide that the space to be used for a voting place in multi-residential buildings greater than 100 units, buildings owned by a municipality or school board and provincially funded institutions shall be provided free of all charges.

(19) Who May Remain in a Voting Place

Subsection 47(1) lists those individuals who are entitled to remain in the voting place. This list permits one scrutineer per candidate for each ballot box in use at the voting place. Some of the former municipalities within the City of Toronto traditionally had a number of ballot issuing stations at a voting place to enhance customer service. It is proper that a scrutineer should continue to be permitted at each of these stations. The suggested amendment is also consistent with the provisions of who may be present during a recount.

It is suggested that a new clause be added to subsection 47(1) to permit "any other person with the permission of the clerk" to be present at a voting place. A complementary amendment is also required to the lead-in of subsection 47(5).

(20) Campaign Material Prohibited at a Voting Place

Subsection 48(2) prohibits the display of any campaign material or literature in a voting place. Some candidates have interpreted this to include only the building, not the exterior of the building. The Clerk normally designates the entire property (including the parking lot, walkways, fences, etc.) as the voting place.

It is suggested that subsection 48(2) be amended to replace "in a voting place" with "in or at a voting place".

(21) Marking of the Ballot

Clause 52(3)(a) instructs the elector, in marking his or her ballot, to make a mark "within the space to the right of the name of each candidate for whom the elector wishes to vote". Some judges have interpreted this to mean that any mark to the right of the candidate's name is to be counted, not just those marks within the designated space; other judges have ruled that the mark must be within the designated space in order to be valid. It is critical that certainty be given to what constitutes a valid mark.

It is suggested that clause 52(3)(a) be amended to provide the mark must be made "...within the designated marking space provided to the right of...".

(22) Post Election Scrutiny of the Voters' List

Currently, clause 55(1)(b) requires the deputy returning officer to place all documents related to the election, except for the original statement of results, in the ballot box. Subsection 88(6) provides that no person is entitled to inspect any documents in a ballot box in the absence of a judge's order. The voter's list, indicating which electors voted on voting day, is one of the documents that is sealed inside the ballot box. In order for election officials and candidates to ascertain whether or not any fraud or illegal activity has occurred, ready access to the voters' list must be available.

It is suggested that clause 55(1)(b) be amended to exclude the voters' list from placement in the ballot box.

(23) Time for Recount - Tied Vote

Subsection 56(2) requires a recount for a tied vote must be conducted within ten days of the Clerk's declaration of the results of the election. For the City of Toronto, this is a very narrow time period to properly organize and carry out a recount, particularly a recount for the office of mayor.

It is suggested that subsection 56(2) be amended to increase the time period for the conduct of a tied vote recount from ten to fifteen days.

(24) Time for Council to Request a Recount

Clause 57(1)(a) permits a council to pass a resolution within thirty days of the Clerk's declaration of the results of the election to require a recount of all or any votes in an election. This is a very narrow time frame given that the Toronto City Council normally only meets once a month. Additional time would also give Council more time to adequately consider the merits of whether or not a recount should be conducted.

It is suggested that clause 57(1)(a) be amended to increase the time period for a council to pass a resolution requiring a recount from thirty to sixty days.

(25) Time for Recount - Resolution or Minister's Order

Subsection 57(2) requires a recount at the request of a municipal council, local board or the Minister of Municipal Affairs and Housing to be conducted within ten days of the passing of a resolution or the making of an order in the case of the Minister. For the City of Toronto, this is a very narrow time period to properly organize and carry out a recount, particularly if there is a delay in the Clerk's receipt of the resolution or order from the local board or the Minister. Similarly, there is also a timing issue if the recount is for the office of mayor.

It is suggested that subsection 57(2) be amended to increase the time period for the conduct of a recount requested by a council, local board or the Minister of Municipal Affairs and Housing from ten to fifteen days.

(26) Time for Recount - Court Ordered

Subsection 58(4) requires a court ordered recount to be conducted within ten days of the Clerk's receipt of the judge's order. For the City of Toronto, this is a very narrow time period to properly organize and carry out a recount, particularly if the recount is for the office of mayor.

It is suggested that subsection 58(4) be amended to increase the time period for the conduct of a court ordered recount from ten to fifteen days.

(27) Time for Holding By-elections

Paragraph 65(4)1. provides that if a by-election is to be held to fill a vacancy in an office, the Clerk shall set nomination day. This day shall be no more than thirty days after the need for the by-election is established, for example once a by-law is passed to require a by-election. Voting day is thirty-one days after nomination day, resulting in a total maximum period of sixty-one days. For the City of Toronto, this is a very narrow time period to properly organize and conduct a by-election, particularly if the by-election is for the mayor's office.

It is suggested that paragraph 65(4)1. be amended to increase the time period for the setting of nomination day from thirty to sixty days after the need for a by-election is established.

(28) Receipt of the Preliminary List of Electors for a By-election

Subparagraph 65(4)4. ii. requires that the assessment commissioner is to give the preliminary list of electors to the Clerk "before nomination day". This could effectively mean the Clerk might receive the voters' list the day before nomination day. This does not give sufficient time to review the list, prepare copies and allow for a reasonable revision period.

It is suggested that subparagraph 65(4)4.ii. be amended to provide that the assessment commissioner is to give the preliminary list of electors for a by-election to the Clerk at least twenty-one days prior to nomination day.

(29) By-elections - Applications to Delete an Elector's Name

Paragraph 65(4)5. permits additions, corrections and deletions to the voters' list for a by-election to be made up to the close of voting on voting day. However, prior to deleting a name from the list, the Clerk is required to hold a hearing. In order to allow for sufficient time to give notice of and conduct the hearing, applications to delete a name should only be made up to nomination day. This would be consistent with the provisions in a regular election.

It is suggested that paragraph 65(4)5. be amended to provide that the time period for applications to delete a name from the voters' list in a by-election end on nomination day.

(30) End of Campaign Period

Paragraph 68(1)2. provides that the campaign period ends on December 1 for a regular election and fifteen days after voting day in the case of a by-election. Many candidates complained this was too short a period. Extending this period would allow candidates more time to complete their campaigns, receive and pay bills and permit additional time for candidates to fund-raise to eliminate a deficit during the regular campaign period.

It is suggested that paragraph 68(1)2. be amended to provide that the campaign period ends on January 31 in the year following a regular election and ninety days after voting day in the case of a by-election.

(31) Continuation of Campaign Period to Eliminate a Deficit

If a candidate is continuing to fund-raise to eliminate a deficit, paragraph 68(1)4. defines the end of the campaign period as being the date the deficit is eliminated, the candidate files a nomination in a subsequent election for an office on the City of Toronto Council or the candidate advises the Clerk he/she no longer intends to campaign. There are currently still four candidates in a deficit position from the 1997 municipal election, more than two years after voting day. There is generally little movement in these campaigns from one supplementary filing date to the next. There is a need to bring finality to this process. A definite end to the campaign period would encourage candidates to be more effective in their fund-raising efforts. Candidates may file a nomination paper and begin campaigning on January 1 of an election year, resulting in a regular campaign period of thirteen months (assuming the amendment in recommendation 30 is adopted). One additional year should be sufficient to accommodate the needs of the majority of candidates. Any remaining deficit could be carried over to the next election.

It is suggested that a new subparagraph be added to paragraph 68(1)4. to permit candidates a maximum of one additional year after the end of the regular campaign period to eliminate any deficit. A complementary amendment is also required to paragraph 68(1)5.

(32) Filing Date for Financial Statements

Sections 77 and 78 require candidates to file a financial statement by January 31 for a regular election and sixty days after voting day in the case of a by-election. Many candidates complained the time period between the end of the campaign period and the filing date was too short for them to properly close off the campaigns and have an audit conducted.

With January 31 as the end of the campaign period (as set out in recommendation 30), it is suggested that sections 77 and 78 be amended to set March 31 in the year following the regular election as the filing deadline for financial statements. For by-elections, the filing deadline should be 150 days after voting day.

(33) Supplementary Financial Statements and Filing Deadline

Sections 77 and 78 require candidates in a deficit, who are continuing to fund-raise, to file supplementary financial statements covering each three month period their campaign is continuing. The supplementary statement is due one month after the end of each three month period. This places an onerous burden on candidates to constantly need to file the supplementary statements and creates an administrative burden for staff to monitor this requirement. The process needs to be simplified while still providing for a full public disclosure of the campaign contributions and expenses.

It is suggested that sections 77 and 78 be amended to provide a maximum additional campaign period of one year from the normal end of the campaign period. Only one supplementary financial statement would need to be filed within sixty days of the end of the additional campaign period.

(34) Supplementary Financial Statement Format

Subsection 78(3) provides that the supplementary financial statement and auditor's report is to update the previously filed statement to reflect the changes to the campaign finances during the supplementary reporting period. The supplementary statement should reflect all the financial activities of the entire campaign, not just the activities during the supplementary period. As some candidates did not interpret the section in this manner, it should be amended to clarify any confusion.

It is suggested that subsection 78(3) be amended to clarify that the supplementary financial statement is to be a total update of all the campaign financial activities from the date of nomination, not just the supplementary reporting period activities.

(35) Penalties for Non-compliance

Clause 80(1)(b) provides that failure to turn over any campaign surplus shown on the financial statement will result in the application of certain penalties. The Clerk must determine whether or not a default has occurred and send notice of any default to the candidate. This places an onerous task on the Clerk. The only way to be absolutely sure of the amount of surplus, is to review the entire statement to ensure no mistakes have been made. This clause should be amended to be in line with clause 80(1)(c) which uses the words "shows on its face" with respect to whether or not the candidate has exceeded the expense limit.

It is suggested that clause 80(1)(b) be amended to read "a document filed under section 78 shows on its face a surplus, as described in section 79, and the candidate fails to pay the amount required by section 79 to the clerk by the relevant date".

(36) Time for Sending the Default Notice

Subsection 80(3) requires the Clerk to send a default notice to those candidates in violation of the financial filing requirements of the Act within five days of the default occurring. With the large number of financial statements being filed on the due day (in 1997 there were 419 candidates to track), five days is insufficient time to review all the statements for any defects.

It is suggested that subsection 80(3) be amended to increase from five days to ten days the time for the clerk to send a default notice to candidates who have not met the financial filing requirements.

(37) Default - Requirement to Remedy the Non-compliance

Subsection 80(6) permits a candidate in default of the financial filing requirements of the Act to apply to a judge for a declaration that the penalties of the Act do not apply due to inadvertence or an error in judgement. There is nothing in this subsection to deal with the correction of the non-compliant situation. There are two possibilities; either an amendment to the subsection to provide that the judge must order the candidate to make the necessary corrective action or put this requirement directly into the legislation.

It is suggested that subsection 80(6) be amended to require the candidate, within ten days of the date of the judge's declaration waiving the penalties due to inadvertence or an error in judgement, to file the required financial statement or pay over to the clerk the applicable surplus, as the case may be.

(38) Compliance Audits

Subsection 81(3) requires a council to consider any request for a compliance audit within thirty days of the receipt of the request. Should a compliance audit be ordered, under subsection 81(10) a council has thirty days to consider the auditor's report. These time frames are very narrow for the City of Toronto Council as it normally only meets once a month.

It is suggested that subsections 81(3) and 81(10) be amended to increase from thirty days to sixty days the time periods for a council to consider a request for a compliance audit and the auditor's compliance audit report, respectively.

(39) Third Party Campaigning

Concern has been expressed that the Act contains no provision for regulating the activity and spending of a third party in promoting or opposing the election of a candidate. This was identified as an issue in Ward 19 during the 1997 municipal election. Other jurisdictions that have attempted to introduce such measures have determined this would be in violation of an individual's right to freedom of speech under the Charter of Rights and Freedoms.

A possible solution would be to require any person who is supporting or opposing the election of a candidate to register with the Clerk, with a penalty for failure to register. Any such registered person would be subject to the same accountability and spending limits as the candidate whose election the person is supporting or opposing, as the case may be.

It is suggested that the Minister review the issue of third party campaigning and make any necessary amendments to the Act that would impose on these individuals the same accountability and spending limits as candidates have.

(40) Nomination Filing Fee

Subsection 1(1) of Ontario Regulation 101/97 sets the nomination filing fee at $100.00 for all offices. It has been suggested this amount should be increased for the offices on the City of Toronto Council to ensure candidates are serious in their intentions to seek office on City of Toronto Council.

It is suggested that a new subsection be added to section 1 of Ontario Regulation 101/97 to provide that for the office of mayor for the City of Toronto Council the prescribed nomination filing fee is set at $1,000.00 and for the office of councillor for the City of Toronto Council the prescribed nomination filing fee is set at $500.00.

(41) Spending Limit

Ontario Regulation 101/97, made under the Act, sets the spending limit for an office as being $5,500.00 plus $0.50 per elector for the head of council and $3,500.00 plus $0.50 per elector entitled to vote for the office of councillor. Some Members of Council have indicated these spending limits are too low, given the anticipated reduction in names on the voters' list associated with a more accurate list and the potential change in the number of City wards from 28 to 57. It is noted these amounts have not changed to reflect the cost of inflation since the formulas were first introduced for the 1988 municipal election.

It is suggested that section 5 of Ontario Regulation 101/97 be amended to increase the $0.50 cents per elector in the campaign expense spending limit formula. In deciding on an appropriate increase, the Province should have consideration to either the Provincial candidate spending limit of $0.96 per elector or to providing for a cost of living allowance (COLA) increase to the $0.50 per elector originally established back in 1988. Any revised formula should provide for automatic COLA increases.

(42) Proxy Voting Form

The proxy form is a Provincially prescribed form. In order to have a proxy form certified, the elector being appointed as proxy must attend at the Clerk's office. However, the elector making the appointment is not required to so attend. Occasionally, there is a need for City staff to contact the elector making the appointment to clarify information on the form. This task would be easier if the form captured the telephone number of the person.

It is suggested that section 9 of Ontario Regulation 101/97 be amended to include on the proxy form the telephone number of the elector making the proxy.

(43) List of Residential Tenants

Section 16.1 of the Assessment Act requires owners of property with seven or more units to provide the Ontario Property Assessment Corporation (OPAC) with a list of the residential tenants of the building on or before July 31 in each year. This is intended to assist OPAC in identifying eligible electors. However, in an election year OPAC is required to provide the Clerk with the preliminary list of electors on July 31, meaning that list will not include the most recent update of the tenant information. To provide a more accurate list of electors, this date should be moved to earlier in the year so that the information from the most recent update is captured in the list of electors.

It is suggested that the Minister of Finance be requested to amend section 16.1 of the Assessment Act to move the date for property owners to provide a listing of the residential tenants of buildings from July 31 back to May 31.

Conclusion:

The suggested amendments in this report will improve election administration and enhance customer service. Legal Division staff have been consulted on the proposed amendments contained in this report.

The amendments should be forwarded on to the Minister of Municipal Affairs and Housing and the Minister of Finance for their consideration as soon as possible.

Contact Name:

John Hollins, Director of Elections, City Clerk's Division

Telephone No. 392-8019 E-mail: jhollins@toronto.ca

Novina Wong

City Clerk

APPENDIX "A"