In the recent Ontario Superior Court of Justice decision of Braid v. Georgian Bay (Township) [2011] O.J. No. 2818, the Court declared the Mayor to be duly elected even though he failed to file a certified financial statement and auditor’s report on time. As the mayor’s campaign expenses exceeded $10,000.00, the Municipal Elections Act, 1996 (the “Act”) requires that a financial statement and auditor’s report be prepared by an auditor licensed under the Public Accounting Act, 2004.

The Mayor asked his neighbour, whom he believed to be a certified general accountant, to prepare the necessary documentation. The Mayor told his neighbour of the qualifications required. Although eligible, the neighbour did not hold a licence under the Public Accounting Act, 2004.

Despite finding that the Mayor violated the Act, the Court did not apply any penalty (which could have included forfeiture of office) since the Mayor acted in good faith and committed the offence inadvertently or because of an error in judgment, an exception provided for in the Act. The Mayor took immediate steps to remedy the situation and a subsequent “duly audited” report was filed, which was identical to the first.

Implications of the decision:

  • The Court affirms that the over-arching purpose of the Act is to ensure that municipal elections are conducted in a fair, orderly, and transparent manner.
  • Accordingly, the Act requires disclosure of amounts spent and provides severe penalties for overspending or failure to disclose amounts spent to ensure that elections cannot be “bought”.
  • Penalties for violating the Act may not be imposed where a candidate acted in good faith and committed the offence inadvertently or because of an error in judgment. Such was the case here where the Court held that it is not necessary for a candidate to cross examine his chosen auditor after sending him the qualifications needed and receiving an affirmative answer.