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Report To: General Government Committee
Date of Meeting: March 21, 2022 Report Number: LGS-005-22
Submitted By:
Reviewed By:
File Number:
Report Subject:
Rob Maciver, Director of Legislative Services
Mary-Anne Dempster, CAO By-law Number:
Resolution#:
2022 Municipal Election – Procedures and Legislative Update
Recommendation:
1.That Report LGS-005-22, and any related communication items, be received for
information.
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Report Overview
This report is intended to provide Council, and the public, with a broad overview of how
different aspects of Clarington’s 2022 Municipal Elections will be conducted.
1. Background
1.1 Members of Council had requested information about how the Clarington 2022
Municipal Elections will be conducted. The Municipal Elections Act (MEA) provides that
the Municipal Clerk shall make all decisions, except for specific items (such as the
method of election) and details are in the process of finalization. However, this report
provides some of the known details and changes for the 2022 Clarington Municipal
Elections.
1.2 In January 2019, arising out of Report CLD-020-18 on the accessibility of the 2018
elections, Committee referred a motion to set the method of election as internet and
telephone voting to the January 14, 2019, Council meeting and asked Staff for more
information. Arising out of consideration of Report CLD-005-19, Council passed the
following Resolution #C-020-19 and subsequently passed By-law 2019-003 to establish
internet and telephone voting for Clarington municipal elections:
That Report CLD-005-19 be received;
That the Council of the Municipality of Clarington endorse Internet and
Telephone Voting for Advance Polls and Voting Day as the preferred m ethod of
voting for the Municipality of Clarington, beginning with the 2022 Municipal
Elections; and
That Attachment 1 to Report CLD-005-19, the draft by-law to authorize the use of
internet and telephone voting, and to repeal By-law 2013-038 (which authorizes
the use of vote tabulators, special ballots, and accessible equipment for
Municipal Elections), be approved.
1.3 Voting Day is Monday, October 24, 2022, however, the voting period begins at 10:00
am on Tuesday, October 18, 2022.
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2. Recent Changes to the Municipal Elections Act (MEA)
2.1 The following legislation made changes to the MEA affecting the 2022 municipal
elections:
Bill 68, Modernizing Ontario’s Municipal Legislation Act, 2017;
Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, 2020 ;
and
Bill 254, Protecting Ontario Elections Act, 2021.
The following summarizes the changes that apply to Clarington.
Term of Council
2.2 The current term of Council began on December 1, 2018, and will end on November
14, 2022. With the following term of Council beginning on November 15, 2022 , instead
of December 1, 2022.
Nomination Day
2.3 Changes were made to move Nomination Day in a regular election from the fourth
Friday in July to the third Friday in August (August 19, 2022).
Clerk’s Procedures Deadline
2.4 Previously, the Clerk’s Procedures (i.e., how the election will be run) needed to be
completed prior to December 31st in the year prior to a regular election. With the recent
change, the deadline is June 1st of the election year. However, Staff plan to have this
completed prior to May 1st, which is the first day for nominations.
Electronic Filing
2.5 Clerks may put conditions in place that would allow candidates and third party
advertisers to submit their nomination and registration forms electronically.
Endorsements of a nomination that are filed electronically must still be collected as
original signatures.
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2.6 In Clarington, electronic filing1 (e-filing) will only be permitted if all the following
conditions have been met:
1. A state of emergency has been declared by the federal or provincial government
or the Municipality of Clarington; and
2. The Clerk’s Office is closed due to the emergency, and in -person attendance is not
permitted for three contiguous business days, which will include Nomination Day.
If the conditions above have been met, e-filing is permitted, and the details are
outlined in the Candidates’ Manual and the Clerk’s Procedures.
Ranked Ballots
2.7 The Province made changes to remove the option to hold ranked ballot elections in
Ontario municipalities by revoking Ontario Regulation 310/16 (Ranked Ballot Elections)
in its entirety, and by repealing Subsections 41.1 and 41.2 of the MEA.
Third Party Advertiser’s Withdrawal of Registration
2.8 A registered third party advertiser may withdraw their registration by filing a written
withdrawal with the Clerk during the time for filing a notice of registration (no later than
the Friday before Voting day, at a time when the Clerk’s office is open).
2.9 If a registered third party advertiser files a nomination to run for office, their third party
advertiser registration is deemed to be withdrawn and their advertising campaign
automatically closes.
1 NOTE: A candidate may also submit their nomination papers, including fee, and copies of
identification, using the drop-box at the main door of the Municipal Administrative Centre
(MAC) only when all the conditions for e-filing have been met.
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3. Election Assistance Centres (EACs)
3.1 Voters do not need to attend a voting location. However, if they need assistance,
Election Assistance Centres (EACs) will be available. Based on the experience of
other municipalities, Clarington is planning that between 15% and 30% of eligible
Voters may need assistance.
3.2 Wherever possible, only municipally-owned facilities will be used for EAC locations
during a municipal election and no schools are being used. This provides greater
control and less risk. We have established 10 EACs for Voting Day, across the four
wards in addition to the Clarington Libraries (a new addition in 2022) and the Special
Voting Locations (i.e., long-term care facilities, hospital, etc.). All EAC locations have
been inspected and staffing decisions were made with the assumption that social
distancing requirements will be necessary.
4. COVID-19 Planning
4.1 Although decisions and planning are still underway, Staff are planning for the election
as if we are under a certain amount of public health restrictions (i.e. cleaning protocol,
masks, and social distancing). These plans may be modified as we get closer to the
Voting Period.
5. Advance Voting Period
5.1 The Voting Period will begin at 10:00 am on Tuesday, October 18, 2022, and end at
8:00 pm on October 24th. The length of the Advanced Voting Period is consistent with
previous Clarington elections. Advanced EACs will be operating on various days, in
various locations throughout the Advanced Voting Period, except Sunday (which will
have the election support hotline available). Residents will also be able to vote at
Clarington libraries during regular library hours, during the Advanced Voting Period.
6. Special Voting Locations
6.1 Section 45(7) of the MEA requires that voting must be provided on the premises for
institutions with 20 or more beds occupied by persons who are disabled, chronically ill,
or infirm and for retirement homes in which 50 or more beds are occupied. These
locations are commonly referred to as “special voting locations”.
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6.2 The Act dictates that voting places be open for voters between the hours of 10:00 AM
and 8:00 PM but also provides that the Clerk may establish that specified voting places
shall be open on voting day at a specified time before 10:00 AM on Voting Day and
provides that the Clerk may establish reduced voting hours of special voting locations,
provided that the location is only for the use of the respective residents. Prior to the
changes to the Act, these would have been established by by-law, but now it is
established by the Clerk.
6.3 Election Officials assigned to these special voting locations will conduct the vote during
the specified hours.
6.4 The following are Clarington’s special voting locations, which will have reduced hours
on Voting Day:
Ward Location Address Community
01 White Cliffe Terrace Retirement
Residence 1460 Highway 2 Courtice
02 Seasons Clarington Retirement
Community 65 Clarington Blvd Bowmanville
02 Bowmanville Creek Retirement
Community 105 Queen Street Bowmanville
03 Lakeridge Health Bowmanville 47 Liberty Street S. Bowmanville
03 Glen Hill Strathaven - Long Term
Care
264 King Street
East Bowmanville
04 Fosterbrooke Long Term Care 330 King Avenue
West Newcastle
6.5 Each of these voting locations will mainly be for the respective resident voters – but
since they are EACs by the nature of internet/telephone voting, non-residents can be
assisted and can vote using the technology provide d, depending on the restrictions of
the specific facility. Voting hours per location are based on the analysis of the time
required to process voters at each location and have been established in co-operation
with the administration staff of each facility.
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7. Internet and Telephone Voting
Commitment to Principles
7.1 The Clerk’s Division is working to establish policies, procedures, and training that
reflect industry best practices. The guiding principles for these policies, procedures,
and training are as follows2:
1. Secrecy - The association between a voter’s identity and vote is secret;
2. Equality - A voter shall not be able to cast more votes than another, nor be
prevented from casting a ballot;
3. Accessibility - The election shall be accessible to voters. Each voter must have
the means and opportunity to participate;
4. Fairness - Voters and candidates shall be treated fairly and consistently;
5. Dependability - The election shall deliver an outcome in a reliable and timely
manner;
6. Accuracy - A cast vote must accurately reflect the voter’s intended preference;
7. Correctness - The election outcome must reflect the correct combination of
valid cast votes;
8. Confidence - Voters and candidates must be confident in the correctness of
the election outcome; and,
9. Transparency - The election is to be conducted in a manner that is transparent
and accountable to voters and candidates.
2 “Protecting Electoral Integrity in the Digital Age: Developing E -Voting Regulations in
Canada”, Alexander Essex and Nicole Goodman. Election Law Journal, Volume 19,
November 2, 2020, Page 173. Accessed from:
https://www.liebertpub.com/doi/10.1089/elj.2019.0568
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Software Vendor
7.2 As noted in Report CLD-005-19, Staff conducted a competitive procurement to obtain
an internet/telephone voting vendor. The RFP submissions were reviewed by seven
members of Staff including IT, Finance, Clerk’s, and the Director of Legislative
Services/Municipal Solicitor. The vendor selected was Simply Voting, and staff have
begun to implement the project with the vendor. In the 2018 Ontario Municipal
Elections, Simply Voting had 28 Ontario municipalities as customers. In 2022, they will
have 50 Ontario municipalities as customers.
Voting Information Letter (VIL)
7.3 The VIL to be mailed to each voter will contain the telephone number for telephone
voting; the website for internet voting; instructions for both types of voting; the unique
voter Personal Identification Number (PIN); and contact information to seek help. It is
anticipated that the VILs will be mailed out in late September, and should arrive in early
October, to every voter on the Voters’ List.
Pop-Ups on Computers
7.4 Some Members of Council expressed concern about ensuring that there were no “pop -
ups” on the voting screens that would be marketing or influencing the vote. This was a
requirement that was built into the Request for Proposal document for the software
vendor and Staff have confirmed that Simply Voting does not allow pop -ups.
Online Voting & Devices
7.5 Voters will be able to vote online from any internet -enabled device or desktop
computer.
7.6 Devices at the EACs will be set up for use by voters who do not have access to the
internet or require assistance. They will log out each voter automatically after they vote,
for quick and efficient turnover.
7.7 The voter will enter the website name into any browser, enter their PIN number and
personal credentials. The user will enter their selection for each race, the system will
confirm their selection, record the votes, and provide a receipt code.
Telephone Voting
7.8 When the voter dials the telephone number, the system will prompt voters for their
credentials, read out the candidate names, record the votes, and provide a receipt
code. Voting instructions and the wording of the ballot will be professionally recorded in
a human voice. The voting system ensures that no one can vote twice.
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Senior’s and Internet Use
7.9 Members of Council had expressed concern about internet/telephone voting and the
senior population. It should be noted that anyone without internet can vote by
telephone or at an Election Assistance Centre (EAC) during the Voting Period.
However, it is interesting to note that Statistics Canada, on their most recent (2018)
Canadian Internet Use Survey, reports that 71 % of seniors are frequent Internet users
(Statistics Canada, 2019). This is significant increase from the previous survey (2012)
where only 48% of seniors used the Internet. Although it is frequently assumed that
seniors are not technology savvy, there is no data to support this claim. In fact, the
major Ontario internet voting municipalities (Markham, Newmarket, and Aurora) stated
in an interview that they had not reported complaints or criticism from senior voters
claiming to be disenfranchised by online voting.
Security
7.10 Members of Council have asked about the security of internet/telephone voting. Staff
were very clear in the RFP that the software had to meet a high level of specific
security measures. The Simply Voting software uses a variety of security features,
certifications, testing, and encryption techniques and Staff have a high degree of
confidence in the integrity of the system.
7.11 These security features include:
Secret Ballot - Whether you use the internet or telephone to vote, your vote is
instantly encrypted and stored with no possibility of your vote being traced back to
your identity, just like a traditional paper ballot. It is impossible for municipal staff,
Simply Voting employees, or any other person, to see how you have voted. Election
Officials will only be able to see that you cast your vote, the time you voted, and the
IP address or telephone number you voted from.
One Person, One Vote - Only registered voters on the municipal list of voters will be
authorized to access a ballot. Once you vote, using either internet or telephone, you
are “crossed off” the list and cannot vote again. Even if you switch between the
internet and telephone, even if you try to vote using several devices at the same
time, the system will only accept one single ballot from each voter.
Protection Against Computer Hackers - Simply Voting is an expert in internet
security and goes to great lengths to protect the voting system. All communications
between the voters’ computer and the voting website are encrypted to ensure
confidentiality. The internet ballot is tamperproof and there are multiple layers of
security to protect the servers against attacks. Simply Voting software has been
independently certified with several common security certifications.
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Protection Against Imposters - To vote, you will need to enter a PIN that will be
mailed to each voter in a Voter Information Letter prior to the "Voting Period". These
PINs are randomly generated by Simply Voting and are printed, machine folded in
security-tinted envelopes, and mailed directly to voters. As an added security
measure, voters will also be required to enter personal information to complete the
voting procedure. Therefore, if a Voter Information Letter ends up in the wrong
hands, another person will not be able to cast the vote without your PIN and the
personal information.
8. Voters’ List
8.1 Staff noted, and share, Council’s concerns about the accuracy of the voters’ list,
including concerns about transient populations. As a result, Staff have contacted MPAC
to inquire how they plan to address the problem of expired tenancies and absent post-
secondary students remaining on the list, and they responded by stating “our planned
Municipal Toolkits will include targeted messaging for post-secondary students that
municipalities can leverage locally as needed. In addition, we will be engaging post-
secondary student groups as contacts to share MPAC materials. We acknowledge that
this elector group poses challenges in respect to enumeration.”
8.2 The “Municipal Toolkit” is a set of communications tools that MPAC shares with
municipalities to have a common approach/branding to the message about updating
the list. It is meant to drive all voters to MPAC’s www.voterlookup.ca to check that they
are on the Voters’ List and that their information is correct.
8.3 Unfortunately, the problems associated with outdated tenancies may not have a great
improvement until Elections Ontario takes over the voters’ list on January 1, 2024,
when we expect there will be a greater focus on accuracy as it is more of their core job.
To that end, Staff have reached out to Elections Ontario as they prepare to take over
the voters’ list, and Gene Genin, from the Provincial Election Register has responded
by stating that “Elections Ontario currently has a comprehensive outreach program for
provincial elections. An objective of the transition program is to make sure that EO’s
outreach activities and other elector communications are enhanced and synched with
municipal messaging.”
8.4 For Clarington’s part, we will be starting earlier to get the word out that everyone should
check the voters’ list and make sure their information is accurately recorded. For
instance, anyone can check MPAC’s www.voterlookup.ca from now until the summer
when it will switch over to Clarington’s voter lookup tool. This has been linked with a
button from our election website, www.clarington.net/votes. However, to avoid
confusion with the June 2, 2022, Provincial election, the majority of the Clarington
advertising campaign will not start until after June 2nd.
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8.5 Additionally, Clarington will undertake a review of the voters’ list from MPAC at an
earlier date than previous elections, to provide more time for the many hours of data
cleansing required to make the list as accurate as possible.
9. Family Voting
9.1 Members of Council asked about possible voting coercion with internet/telephone
elections. The phrase “family voting” is commonly cited as a concern with remote
voting. This refers to a situation where some families “vote collect ively in ways that
uphold the clan-style biraderi (‘brotherhood’) relationships that govern a range of their
social relationships, including marriages” (Smith, 2013). Additionally, pressure from a
head of household can occur in situations where a dominant family member wishes to
influence and control the vote. Also, concerns about campaign workers going door-to-
door with iPads and possibilities for undue influence, notably for groups that may be
more susceptible (e.g., residents of old age homes), has been raised at the municipal
level in Canada (e.g., City of Toronto online voting debate).”3
9.2 No voting approach can guarantee prevention against coercion in unsupervised voting,
including vote-by-mail. One approach would be to have a system that encourages
voters to vote as many times as they like until voting day – but only the last one counts.
Staff have considered this approached but have determined it is not advisable,
especially in the face of the new voting method. Another approach is that the voter can
choose not to vote at home and rather vote at an EAC.
9.3 Regarding campaign workers, the Candidates’ Manual, and the Clerk’s Procedures
(which the candidates receive) will contain wording that makes it clear that “door -to-
door with iPads” is not allowed.
9.4 Education of voters regarding the penalties is the other recommended approach, which
is the approach that Clarington will be taking.
3 “Online Voting: A Path Forward for Federal Elections”, Nicole Goodman, Director of the
Centre for e-Democracy, for the Privy Council Office, January 2017. Page 28. Accessed from:
https://www.canada.ca/en/democratic-institutions/services/reports/online-voting-path-forward-
federal-elections.html#toc14
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10. Role of Scrutineers
10.1 Prior to the Voting Period, the following are the election activities that a scrutineer may
observe:
Election assistance provided by Election Officials
Transportation of Equipment;
Demonstration of technology; and
Mock Election(s).
10.2 In addition to the activities identified above, during the Voting Period
candidates/scrutineers may observe activities in the following election areas:
Opening of Voting – Candidates and scrutineers will be invited to attend the
“Opening of the Vote” at the Municipal Administrative Centre (MAC) (located
at 40 Temperance Street, Bowmanville) on the morning that the Voting Period
commences. Opening of the vote procedures will demonstrate, among other
things, that the vote tally is at zero prior to the opening of the vote, that the
Voting System is inaccessible prior to the official start time, and the voting
system is accessible after the official start time.
EACs - Candidates and Scrutineers may attend any EAC offered throughout
the Voting Period, during hours of operation, to observe the process. In
addition, Scrutineers may enter the EAC 15 minutes before it opens to inspect
election equipment, forms, and documents relating to the vote (but not to
delay the timely opening of the EAC). They may use the chairs assigned to
candidates/scrutineers for observing. Upon leaving, the appropriate sanitation
protocol shall be followed (which may include sanitizing the chairs).
Voters’ List - Candidates and Scrutineers may object to a person being added
to the Voters’ List (Note: A record will be made of all objections, however, the
final decision on whether to add a voter to the Voters’ List, make a revision, or
issue a voting PIN will be made by an Election Official).
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Auditing Process – Candidates and Scrutineers may request to receive, and
review, documentation associated with the Municipality’s Voting System
auditing program and activities. The Municipality will make the records
available as promptly as possible when requested. However, Candidates and
Scrutineers should be aware that such documentation may not be available
on an immediate basis, during the Voting Period, due to ongoing auditing
activities.
Activities in the public areas of the Election Return Headquarters – including
close of voting. Candidates and Scrutineers may observe the close of voting
procedures which will demonstrate, among other things, that the voting
system is inaccessible after the official voting period end time.
Results Release – Candidates and Scrutineers are entitled to be present at
the time and place where results are announced.
Recount Event (where applicable, following Voting Day).
10.3 Details about the role of scrutineers will be contained in the Candidates’ Manual.
11. Report of Voters Who Have Voted at Advanced Voting
11.1 Members of Council had asked about candidates obtaining a list of voters who have
voted. Subsection 43(6) of the MEA states that the Clerk shall, on the request of a
scrutineer or certified candidate, give them a copy of the list showing the name of each
person who has voted on that Advanced Voting Day and identifying their voting place.
This will be done through an online Candidate Portal.
11.2 The online Candidate Portal will be used to communicate information and voters’ lists
to all registered candidates who request a copy of the voters’ list. The Portal will allow
candidates access to the portions of the voters’ list that they are entitled to, through a
self-serve mechanism (replacing the manual export, formatting, verification, and
distribution of an Excel document). Candidates will be able to filter the results,
download an Excel document, format, and print as they choose.
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12. Results Reporting
12.1 Members of Council had asked about the results report. One of the advantages of
internet/telephone voting is the expectation that the results will be ready earlier than
through tabulators or manual counting. Although the perception is that the results will
be available at 8:01 pm, it is important to set appropriate expectations. To comply with
subsection 46(3) of the MEA, where it states that “an elector who is in a voting place at
the time for closing under subsection (1) or (3) and has not yet voted is still entitled to
vote” – there will be a five minute “grace period” for voters who entered the voting
process prior to the close of voting to finish voting and voting devices at EACs will not
be closed until we receive confirmation that all voters have left the location. Therefore,
an exact time cannot be determined as it will largely depend on voters in these
locations, and the time it takes to communicate the closure of each EAC back to
headquarters.
13. Recount Policy
13.1 The Act provides that a municipality may adopt a policy, by May 1st, with respect to the
circumstances in which the municipality requires the Clerk to hold a recount of the
votes cast in an election. The MEA requires a recount if the votes for two, or more,
candidates receive the same number of votes and cannot both or all be declared
elected.
13.2 It should be noted that, in accordance with Section 60 of the MEA, the recount shall be
conducted in the same manner in which the votes were originally counted. Only a
judge, who orders a recount under Section 58 of the MEA, may order that the recount
be held in a different manner.
13.3 Regardless of any recount policy, Council may also require a recount by passing a
resolution under Section 57 of the MEA within 30 days after the declaration of the
results.
13.4 A recount policy could conceivably authorize a recount in the event the totals for two
candidates were separated by a defined value (i.e., “separated by 5 votes” or
“separated by less or 1% of the total number of votes cast for the office”).
13.5 However, because it’s impossible to determine what the correct number should be,
because everyone will have a different opinion, and because the recount will be
conducted by producing the same electronic report of the votes cast, Staff do not
recommend establishing a recount policy. As stated above, this does not take away
Council’s ability to order a recount, should they see fit. If Council would like to proceed
with implementing a recount policy, the direction would need to be given to staff well
before May 1, 2022.
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14. Restricted Acts after Nomination Day (aka “Lame Duck
Period”)
14.1 The question of whether a Council is in a “lame duck” period often arises as we
approach a municipal election. “Lame Duck” refers to time period when municipal
councils are restricted from doing certain acts, as outlined in Section 275 of the
Municipal Act:
the appointment or removal from office of any officer of the municipality;
the hiring or dismissal of any employee of the municipality;
the disposition of any real or personal property of the municipality that has a value
exceeding $50,000 at the time of disposal; and
making any expenditures or incurring any other liability that exceeds $50,000.
14.2 Subsection 275(3) states that the third and fourth bullets do not apply “if the disposition
or liability was included in the most recent budget adopted by the council before
nomination day in the election.”
14.3 Similarly, Subsection 275(4.1) states that “nothing in this section prevents a
municipality taking any action in the event of an emergency.”
Determining whether the Restricted Acts apply to Clarington
14.4 There is no guarantee that there will be a lame duck situation. The Clerk must perform
an analysis after the beginning of each of the following periods. A Council can become
lame duck in one, or both, of two separate time periods. First, the period from
Nomination Day (August 19, 2022, at 2:00 PM) to Voting Day (October 24, 2022) when
official results are known. The second period runs from Voting Day (October 24, 2022)
to the end of the term of the outgoing Council (November 15, 2022).
14.5 In determining the “lame duck” period, Council is in “lame duck” where it can be
determined, with certainty, that less than 75% of the Members of the old council are not
returning to the new council.
14.6 For a more detailed explanation of “lame duck” and the restrictions placed on Council
during the “lame duck” period, please see Attachment 1.
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14.7 The Municipal Clerk will notify Members of Council, Department Heads, and
Administrative Assistants following Nomination Day (August 19 th) and Voting Day
(October 24th) of the determination of whether the Municipality of Clarington is in a lame
duck position.
Mitigation
14.8 The restriction on the appointment of municipal officers during a lame duck period is
mitigated by the appointment of a Deputy Clerk and Deputy Treasurer in the event that
there might be a sudden vacancy that occurs during the lame duck period .
14.9 If there are large contracts (where the expenditure exceeds $50,000) the Purchasing
By-law addresses this situation in Section 61, Council Recess Procedures, as follows:
61. (1) Notwithstanding section 60 [regarding approval limits and reporting],
where a matter which would have otherwise been submitted to Committee
requires approval during any of Council’s recesses, including elections, the
CAO shall be authorized to award the Contract if the Treasurer is of the opinion
that the price is reasonably reflective of the approved budget allocation and/or is
part of the normal operating responsibility of the Department.
(2) The Purchasing Manager shall report all Contracts awarded under subsection
(1) to Committee as soon as possible after the conclusion of the recess.
(3) Council shall not vary any action or decision of the Contract awards made in
accordance with this section.
14.10 Regarding any other matter that could foreseeably arise, in which Council would be
restricted from acting during a lame duck period, Staff will seek delegated authority
from Council prior to Nomination Day.
15. Communication Plan
15.1 Staff have developed a comprehensive, multi-channel communication plan. As part of
the plan, dedicated web pages have been developed to provide information regarding
the municipal elections. The information will continually be updated as the election
progresses.
15.2 The main webpage, www.clarington.net/votes and the direct election support hotline
number, 905-697-4747, are both currently operational.
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16. Key Dates
The following are key election dates:
May 2 = Nomination period begins (Reminder: Nomination form requires
signatures of 25 persons.)
August 19 at 2:00 PM = Nomination Day (i.e., nomination period ends, unless an
extension is required due to lack of candidates in a race.)
September 3 = Election signs may be displayed starting on this date.
September 19 = Last regular Council meeting prior to the election
October 1 = Deadline to establish the new Compliance Audit Committee (a
separate report will be presented to Committee in the Spring of 2022)
October 18 to 24 inclusive = Voting Period
October 24 = Voting Day
November 21 = Inaugural meeting of Clarington Council
December 31 = End of Campaign financial reporting period
March 29 = Deadline for filing financial statements.
17. Concurrence
The Director of Financial Services/Treasurer has reviewed the report and concurs with
the recommendations.
18. Conclusion
It is respectfully recommended that this report be received for information.
Staff Contact: June Gallagher, Municipal Clerk, jgallagher@clarington.net or 905-623-3379
ext. 2102.
Attachments:
Attachment 1 – Article by Fred Dean regarding Lame Duck Council, from the October 2013
publication of Municipal World
Interested Parties:
There are no interested parties to be notified of Council's decision.
by Fred Dean
municipal elections
The “lame duck” council provisions
that restrict council’s powers were
completely rewritten in Ontario’s
Municipal Act, 2001 and amended
further in 2006. What follows is intended
to provide members of council and
municipal staff a summary of the lame
duck restrictions and what preparations
need to be made in advance of the election
period. Two questions must be asked when
looking at section 275. First, when does
a council become “lame duck”? That is,
under what circumstances is a council
restricted in its ability to act? The second
question: how is council restricted?
Subsection 275 (1), paragraph1 deals
with the situation where the composition
of council does not change. It is this
situation that is dealt with in this article.
Paragraphs 2 and 3 deal with situations
where the size of the new council is
different from the old council because of
an amalgamation or restructuring.
So, when does a council become lame
duck?
A council can become lame duck in
one or both of two separate time periods.
First, the period from nomination day to
election day. In 2014, this period is from
September 12 at 2:00 p.m. to October 27.
The second time period runs from election
day to the end of the term. In 2014, this
second period runs from October 27
to November 30. The clerk must do an
analysis after each of these dates.
Nomination Day
whether the new council “will include
less than three-quarters of the members
of the outgoing council.” The use of
the word “will” suggests that there is a
determination that the council will with
FRED DEAN is a municipal lawyer who acts exclusively for the
bene t of local government. He can be reached at 416-251-8811 or
<fdean@citysolicitor.net>.
“LAME DUCK” COUNCIL
Restricted acts after Nomination Day in Ontario
certainty have less than 75 percent of the
members of the old council. Not that it
“may” have.
percent of the membership of council.
For example, 75 percent of a council
consisting of seven members is 5.25. Thus,
more than 75 percent.
Let’s do some examples based on a
council of seven members, elected by
wards.
There is NOT a lame duck council in
the following situations:
six members are running in elections
three members are acclaimed and four
In these examples, it cannot be
determined with certainty that at least
75 percent of the former members will
be returning to council. Will the new
council include less than 75 percent of
the outgoing council members? It could,
but it could also include more than the
75 percent. Thus, the answer is no, and,
as a result, the outgoing council is not
restricted in its actions during this period.
There is a lame duck council in the
following situations:
six members are retiring and one is in
the head of council and two members
four are running in elections for their
In these examples, it can be determined
with certainty that less than 75 percent of
the current members of council will be
returning to sit on the new council. Thus,
the test in paragraph 1 of subsection 275
(1) – that the new council will include less
than 75 percent of the outgoing council –
Election Day
The second analysis must be done on
election day, after the results are known.
The same question must be asked: Will the
new council be composed of 75 percent or
more of the members of the old council?
If the answer is “yes” then there is
not a lame duck council. If the answer is
“no,” then council will be restricted in its
do some examples:
There is NOT a lame duck council in
the following situations:
six members are returned in elections,
two members are acclaimed and the
a councillor ran against the mayor and
won, and all the other members were
re-elected.
In these examples, it can be determined
with certainty that 75 percent or more
of the members of the old council are
returning as members of the new council.
Thus, in these examples, the new council
is not a lame duck council from the date
of the election until the end of the term.
Council’s powers are not restricted during
this period.
There is a lame duck council in the
following situations:
October 2013 Municipal World 35161
Attachment 1 to Report LGS-005-22
four members are acclaimed to
members running for mayor is elected,
have retired.
In these examples, it can be determined
with certainty that less than 75 percent of
the current members of council will be
returning to sit on the new council. Thus,
the test in paragraph 1 of subsection 275
(1) – that the new council will include less
than 75 percent of the outgoing council – is
council is a lame duck council from the
date of the election to the end of the term,
and its powers are therefore restricted.
Restricted Acts
Once the determination has been made
with certainty that the council is lame
duck for either or both time frames, then
the four restrictions in subsection (3) will
apply. These are:
(a) the appointment or removal
(b) the hiring or dismissal of any
(c) the disposition of any real or personal
property of the municipality that has
a value exceeding $50,000 at the time
(d) making any expenditures or incurring
any other liability that exceeds
$50,000.
This is the complete list. There are no
other restrictions on a council’s ability to
make decisions or exercise powers.
municipality, particularly as many will be
hiring for winter maintenance. Subsection
275 (6) provides that nothing in this
section prevents a person or body from
exercising authority delegated by council.
Thus, if the power to hire employees has
been delegated to staff, then the fact that
council’s powers are restricted during
the lame duck period will not restrict
municipalities have delegated to staff
important for smaller municipalities where
councils often maintain control of the
hiring process.
It is important to note that council
cannot delegate during the election period.
The delegation by council must be made
before nomination day. Any delegation
will require that council’s delegation
policy be amended. This could require
special notice in accordance with council’s
notice policy.
There is another provision that lessens
the impact of the restrictions on a lame
duck council. Subsection 275 (4) provides
that restrictions in clauses (c) and (d) do
not apply if the disposition or liability
was approved by council in the annual
budget. The one condition is that council
must have approved the budget before
nomination day.
Thus, a contract could be awarded by a
lame duck council for an amount in excess
of $50,000, so long as the amount was
included in the annual budget. The lame
duck council would not be able to award
the contract, however, if the amount of
the tenders or bids exceeded the amount
included in the budget.
A frequently asked question is whether
the municipality can close a real estate
transaction during the lame duck period.
The answer is “yes” – assuming that
council passed a by-law approving the
execution of the agreement of purchase
and sale in advance of the lame duck
period.
In 2006, the province added a
new subsection (4.1), which provides
that nothing in section 275 prevents a
municipality taking action in the event
of an emergency. What constitutes an
emergency? It does not mean merely
urgent or inconvenient. The best
in the Emergency Management and Civil
Protection Act, in which “emergency”
impending situation that constitutes a
danger of major proportions that could
result in serious harm to persons or
substantial damage to property and that is
caused by the forces of nature, a disease
or other health risk, an accident or an act
whether intentional or otherwise.”
Conclusion
Council and staff should begin
planning well in advance for the
eventuality of a council whose powers are
restricted during the election period.
Once nomination day arrives, the
down. Determine whether the council’s
powers will be limited during both the
period between nomination and election
day, and then again between election
day and the end of the term of the old
council. If it is a lame duck council,
there are only four powers of council
that are restricted.
The impact of these restrictions
is reduced by the ability of council to
exercise powers in those matters that have
been previously approved in the annual
budget. Also, council may delegate its
powers before nomination day and the
person to whom they have been delegated
will be able to act. MW
36 Municipal World October 2013 162