SCC Restores Election Result in Contested Election Case

The Supreme Court of Canada released its decision in Opitz v. Wrzesnewskyj et. al., the first ever appeal to the SCC of a contested election application under the Canada Elections Act. The 4-3 decision restored the May, 2011 election of Ted Opitz, the Conservative MP for Etobicoke Centre, and set out the test for future contested election applications.

The application was commenced in the Ontario Superior Court of Justice by Borys Wrzesnewskyj, the runner-up to Opitz in the 2011 Federal Election. Wrzesnewskyj's application relied on irregularities solely on the part of the Elections Canada officials at ten different polling stations in Etobicoke Centre, including improperly completed poll books, missing registration certificates and electors voting at the wrong polling station.

There were no allegations of fraud or wrongdoing by any candidate.

In a decision released on May 18, 2012, the application judge concluded that 79 votes amounted to “irregularities that affected the result of the election” within the meaning of the Act. He declared the election of Opitz null and void because, applying the “magic number” test, the number of irregular votes exceeded the 26 vote plurality upon which Opitz had been elected.

The Act provides for a mandatory right of appeal to the SCC and that the Court shall hear such appeal “without delay.” Opitz appealed the decision of the Ontario Superior Court. Wrzesnewskyj cross-appealed in respect of those votes which the application judge did not disqualify. The appeal was heard on July 10, 2012.

Writing for the majority, Justices Rothstein and Moldaver (joined by Justices Deschamps and Abella) adopted a substantive approach to determining whether votes should be invalidated on account of irregularities as doing so would give effect to the section 3 Charter right to vote, the purpose of which is the enfranchise all entitled persons. The majority was concerned that a strict approach would place a “premium on form over substance” and enlarge the margin of litigation by inviting losing candidates to pour over election records in search of technical, administrative errors in pursuit of a second chance at election. The substantive approach includes two steps. First, an applicant must establish a breach of a statutory provision designed to establish the entitlement of the elector to vote. Secondly, they must demonstrate that someone not entitled to vote did, in fact, vote as a result of the breach. The burden remains on the applicant throughout, though the respondent may lead evidence, including after-the-fact evidence, of the voter's entitlement.

Applying the test, the majority found that the application judge made two errors of law. He misstated and misapplied the onus of proof in respect of findings about votes at two polls, and failed to consider material evidence in reaching his findings about votes at two other polls. The majority held that the application judge was not entitled to deference because of these errors and, since the record before the Court was entirely documentary and the appeal was to be heard without delay, the Court could reach its own conclusions about the validity of the votes in question. The majority reviewed the evidence and concluded that for the majority of votes disqualified by the application judge, the applicant had either failed to establish that an “irregularity” under the Act had occurred or that a proven irregularity affected the result of the election.

The majority therefore reinstated 59 of the 79 votes. Since the remaining 20 votes was less than Opitz's margin of victory, the appeal was allowed and the application to annul the election was dismissed. While the majority adopted the “magic number” test in reaching their decision, it left the door open for a “more realistic” test to be developed.

Chief Justice McLachlin (joined by Justices LeBel and Fish) dissented, writing that qualification to vote is not sufficient; an elector must also satisfy prerequisites of registration and identification, as such requirements are fundamental safeguards of the electoral system. The minority agreed that the burden of proof remains on the applicant throughout. However, it held that an “irregularity” is any failure to comply with the requirements of the Act and it affects the result if it could affect the result and impact a sufficient number of votes to do so. It found that the application judge applied the correct burden of proof and that 65 ballots cast were properly disqualified. Since that number exceeded the election plurality, it would have dismissed the appeal and annulled the election.

The majority dismissed the cross-appeal, finding no reason to interfere with the findings of the application judge in respect of those votes, while it was not necessary for the minority to consider it.

Thomas Barlow and Nicholas Shkordoff with the assistance of Zohaib Maladwala of Fasken Martineau DuMoulin LLP represented the respondent (appellant) Ted Opitz before the Superior Court and SCC. Kent Thomson and Matthew Milne-Smith with Sarah Weingarten of Davies Ward Phillips & Vineberg LLP also represented the appellant Ted Opitz before the SCC.

Gavin Tighe and Stephen Thiele of Gardiner Roberts LLP represented the applicant (respondent) Borys Wrzesnewskyj.

David Di Paolo and Alessandra Nosko of Borden Ladner Gervais LLP and Trevor Knight of Elections Canada represented the respondents, Marc Mayrand (Chief Electoral Officer) and Allan Sperling (Returning Officer, Etobicoke Centre).

The Attorney General of Canada was represented by the Department of Justice.

William Shores, QC, and Fiona Vance of Shores Jardine LLP represented the intervener, Brian Fjeldheim (Chief Electoral Officer of Alberta).

Harold Turnham of Waddell, Raponi represented the intervener Keith Archer (Chief Electoral Officer of British Columbia).

Allison Thornton and Shashu Clacken-Reyes of Koch Thornton LLP represented the intervener, the Canadian Civil Liberties Association (CCLA).