[IN CHAMBERS.] RE AURORA SCRUTINY. Municipal Corporations Local Option By-law-Scrutiny of Ballots-Consolidated Municipal Act, 1903, sec. 371-Jurisdiction of County Court Judge-Certifying Result to Council-Judicial Act-Prohibition-Inquiry into Validity of Votes-Finality of Voters' Lists-7 Edw. VII. ch, 4-1 Geo. V. ch. 64, sec. 23-Non-residents at Time of Voting— Town Divided into Wards-Qualified Voter Voting Twice-Voting in Wrong Ward-Invalid Exercise of Legal Right to Vote-Right of Judge to Deduct Illegal Votes from Majority in Certifying Result— Absence of Inquiry as to how Persons Voted. Certifying the result of a scrutiny of the ballots cast at the voting upon a municipal by-law (Consolidated Municipal Act, 1903, sec. 371) is a judicial and not a ministerial act. In re Saltfleet Local Option By-law (1908), 16 O.L.R. 293, followed. Upon a scrutiny of the ballots cast at the voting upon a local option bylaw, a County Court Judge found that the votes given by six persons were illegal, and proposed to certify to the council that the majority of the votes was against the by-law: Held, upon a motion for prohibition, that the question was, not whether the Judge reached a correct conclusion in law, but whether he had jurisdiction to inquire into the validity of the six votes. Error in law is a basis for prohibition only when the Judge thereby creates for himself a fictitious jurisdiction. Two of the six persons referred to were residents of the municipality when the lists were finally revised, but afterwards abandoned their residence, and were not residents at the time of the voting: Held, that the Judge had jurisdiction to inquire as to the validity of the votes of these persons. In re Saltfleet Local Option By-law, supra, followed. Two others of the six were non-residents at the time of the revision of the voters' lists, their names were improperly put upon the list, and they continued to be non-residents at the time of the voting: Held, that the Judge had jurisdiction to inquire as to the validity of the Of the two remaining persons, one voted twice. The name of the other The Courts having declared that a scrutiny under sec. 371 includes the vote. Held, also, that the Judge was at liberty to certify, as he proposed to do, without actual inquiry as to how the six persons had voted, that the majority of the votes given was against the by-law. Re West Lorne Scrutiny, supra, followed. 1913 April 7. Lennox, J. 1913 RE AURORA SCRUTINY. APPLICATION by Thomas A. Manning for an order prohibiting one of the Junior Judges of the County Court of the County of York from finding, upon a scrutiny of the ballots cast at the voting upon the local option by-law of the Town of Aurora, that five or any number of illegal votes were cast in favour of the by-law; and from issuing to the town council a declaration that the majority of the votes was against the by-law; and from imposing costs upon the municipality. April 1. The application was heard by LENNOX, J., in Chambers. H. E. Irwin, K.C., and T. Urquhart, for the applicant. James Haverson, K.C., and Eric N. Armour, for Alfred V. Snowdon, the applicant for the scrutiny, respondent upon this application. April 7. LENNOX, J.-I think the costs can properly be left out of the consideration of this motion. Costs are in the discretion of the Judge; the question does not concern the applicant; and the municipality has not moved. I have had the advantage of perusing the findings of the learned County Court Judge and the certificate he proposes to issue, and there is is no finding that "the illegal votes were cast in favour of the by-law." It is of some importance to keep in mind that counsel for the applicant were emphatic in declaring that the six votes decided upon the scrutiny to be illegal were all clearly illegal; but not perhaps vitally important; as the question in the end is, not whether the learned Judge reached a correct conclusion in law, but had he the right-that is, the jurisdiction- to inquire into the validity of the votes in question? Error in law is only a basis for prohibition when the Judge thereby creates for himself a fictitious jurisdiction. See cases collected in In re Long Point Co. v. Anderson (1891), 18 A.R. 401. As a preliminary objection, Mr. Armour submitted that the application is too late; that the County Court Judge has done everything except "certify the result to the council," as provided for by sec. 371 of the Municipal Act; and, this being, as he argued, a purely ministerial act, there is nothing to prohibit. He referred me to Regina v. Coursey (1895), 27 O.R. 181, and Davidson v. Taylor (1890), 14 P.R. 78. These cases are clearly distinguishable. I was also referred to Hancock v. Somes (1859), 28 L.J.N.S.M.C. 196; and, in the absence of a direct decision, this case would afford some ground for the argument that certifying to the council is a ministerial act. Mr. Armour, however, overlooked the circumstance that in In re Saltfleet Local Option By-law (1908), 16 O.L.R. 293, it is distinctly held that certifying the result is a judicial and not a ministerial act; with the result in that case that the County Court Judge was prohibited from giving effect to such of his conclusions as conflicted with the provision for finality of the Ontario Voters' Lists Act. I am, therefore, of opinion that I have power to prohibit the learned Junior Judge of the County Court of the County of York if, in what he proposes to do, he is exceeding, or if his proposed action results from exceeding, his jurisdiction. Then, has he gone beyond or is he proposing to go beyond his jurisdiction? He inspected the ballot papers, heard evidence, inquired as to the right of six persons to vote, and determined that the votes given by these six persons were illegal. These persons are not all in the same class and they must be considered in classes; as, although it is now clearly established that the County Court Judge has jurisdiction to prosecute a scrutiny vastly broader than a mere recount, he yet has not jurisdiction to make an unlimited range of inquiry. Well, then, two of the persons complained of, A. E. Jacks and Aaron Love, were residents of Aurora when the lists were finally revised, but afterwards abandoned their residence and were not residents at the time of the voting. This class of disqualification the Judge had jurisdiction to inquire into without going further for authority than the Salt fleet case. Two other persons, Jennie Smith and Hannah Schriener, were, I infer, non-residents at the time of the revision of the voters' lists were improperly put upon the list-and continued Lennox, J. 1913 RE AURORA SCRUTINY. Lennox, J. 1913 RE AURORA SCRUTINY. to be non-residents at the time of the voting. As to the votes of these two persons the Judge had not jurisdiction to inquire, by reason of the finality of the list, under the decision in the Saltfleet case, as the statute then was; but he had such jurisdiction, upon the authority of the majority judgment of the Court of Appeal in Re West Lorne Scrutiny (1912), 26 O.L.R. 339, recently affirmed in the Supreme Court of Canada. This distinction, however, became unimportant before the votes were cast in the present case, as sec. 23 of 1 Geo. V. ch. 64 provides: "Not withstanding the provisions of section 24 of the Ontario Voters Lists Act, the certified list mentioned in that section shall not be final and conclusive as therein mentioned as to persons who were not at the date of taking the vote on such by-law or have not been for three months before that date bonâ fide residents of the municipality to which the by-law relates." For practical purposes, I need go no further, because, if the loss of six votes would determine the issue adversely to the by-law, the loss of one vote is equally prejudicial; for the by-law, with the vote undisturbed as originally counted, has only the bare requisite majority. But, as the learned Judge may be prohibited from giving effect to any part of his inquiry as to which he exceeded his jurisdiction, I should, I think, consider and determine whether he had jurisdiction to continue his scrutiny as to the two other persons whose votes he declares illegal. One of these persons, Thomas Sisman, voted twice. Concerning the other man, Samuel George, as I understand the statement. he appeared on the voters' list as a resident freeholder in two wards. Subsequently to the revision of the list, he sold the property he was living upon, and took up his residence on the other. He was, therefore, still a resident in the municipality. It is claimed that he should have voted in the ward in which he resided. He voted, however, in the other ward. Now, these two men constitute a class by themselves, distinct from either of those I have already referred to; and the jurisdiction for scrutiny as to these has not, so far as I can see, been determined in any case. Indeed, there are expressions in some of the cases which might be taken to mean that the lists, under the Ontario Voters' Lists Act, 7 Edw. VII. ch. 4, are final to all intents save as to the specific exceptions provided for by sec. 24; and, further, that there could be no inquiry other than within the limits of these exceptions. The latter part of this proposition, at least, has not been actually decided, and has not been involved in any of the cases referred to, as the finality of the lists is not attacked. This is not a question of the existence of a legal vote, but is a question of the valid exercise of a legal right to vote; and this was evidently the attitude of the County Court Judge. He says: "In reaching my conclusion I have not in any way gone behind the voters' list, but have treated it, so far as these votes were concerned, as to the right of these parties to vote as indicated by the voters' list, as being final and conclusive. It must be borne in mind, however, that the grounds upon which the votes of Sisman and George are attacked are entirely apart from and independent of their right to vote, as apparent on the voters' list." It seems to me clear, then, that the Courts having declared that a scrutiny under sec. 371 of the Consolidated Municipal Act, 1903, includes the jurisdiction to investigate as to the voter's qualification, so long as it does not conflict with the finality of the lists already referred to, it follows that the Judge has jurisdiction also to investigate as to whether or not, in a given case, the right to vote, finally and absolutely certified by the lists, was subsequently so exercised as to constitute.the ballot paper deposited in the ballot box a legal vote. I have, therefore, come to the conclusion that the Judge had also jurisdiction to inquire into the validity of the votes of these two men. Acting, then, within his jurisdiction, and coming to the conclusion that six of the votes were illegal, the County Court Judge proposes to "certify and declare to the Council of the Municipality of the Town of Aurora that the majority of the votes given upon the voting upon the by-law was against the said by-law;" and the applicant contends that the Judge should not be allowed to do this. . I think he should be allowed to do it; and, even without cases to aid me, I think it is clearly his duty to do so under the statute. Counsel for the applicant argues that the County Court Judge Lennox, J. 1913 RE AURORA SCRUTINY. |