File Number: 34845

IN THE SUPREME COURT OF (ON APPEAL FROM THE SUPERIOR COURT OF JUSTICE)

B E T W E E N:

Appellant (Applicant) - and -

TED OPITZ

Respondent (Respondent) - and -

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), ALLAN SPERLING (RETURNING OFFICER, CENTRE)

Respondents (Respondents)

FACTUM OF THE RESPONDENT, TED OPITZ (RESPONDING TO THE APPEAL OF BORYS WRZESNEWSKYJ)

Fasken Martineau DuMoulin LLP Davies Ward Phillips Vineberg LLP 333 Bay Street , Suite 2400 44th Floor, First Canadian Place , Ontario M5H 2T6 Toronto, Ontario M5X 1B1

W. Thomas Barlow Kent E. Thomson Nicholas Shkordoff Matthew I. Milne-Smith

Tel.: (416) 366-8381 Tel: (416) 863-0900 Fax.: (416) 364-7813 Fax: (416) 863-0871 [email protected] [email protected] [email protected] [email protected]

Counsel for the Appellant, Ted Opitz

Fasken Martineau DuMoulin LLP 55 Metcalfe Street Suite 1300 Ottawa, ON K1P 6L5

Stephen Acker Ariel Thomas

Tel: (613) 236-3882 Fax: (613) 230-6423

[email protected] [email protected]

Ottawa Agent for the Appellant, Ted Opitz

ORIGINAL TO: THE REGISTRAR

The Registrar 301 Wellington Street Ottawa, Ontario K1A 0J1

COPIES TO:

Gardiner Roberts LLP Gowlings LLP 40 King Street West, Suite 3100 160 Elgin Street, Suite 2600 Toronto, Ontario M5H 3Y2 Ottawa, Ontario K1P 1C3

Gavin Tighe Guy Regimbald Stephen Thiele

Tel.: 416-865-6600 Tel: 613-786-0197 Fax.: 416-865-6636 Fax: 613-583-9869

[email protected] [email protected] [email protected]

Counsel for the Respondent, Borys Agent for the Respondent, Borys Wrzesnewskyj Wrzesnewskyj

Borden Ladner Gervais LLP Borden Ladner Gervais LLP Scotia Plaza, 40 King Street West World Exchange Plaza Toronto, Ontario M5H 3Y4 100 Queen Street, Suite 1100 Ottawa, ON K1P 1J9

David Di Paolo Barb McIsaac, Q.C. Alessandra Nosko

Tel.: 416-367-6000 Tel.: 613-237-5160 Fax.: 416-367-6749 Fax.: 613-230-8842 [email protected] [email protected] [email protected]

Counsel for the Respondents Marc Agent for the Respondents Marc Mayrand Mayrand and Allan Sperling and Allan Sperling

The Attorney General of Canada 234 Wellington Street East Tower Room Ottawa, ON K1A 0H8

Christopher Rupar

Tel.: 613-941-2351 Fax.: 613-954-1920

Counsel for the Respondent, the Attorney General of Canada

Koch Thornton LLP Blake, Cassels & Graydon LLP 360 Bay Street, Suite 400 45 O'Connor St., 20th Floor Toronto, ON M5H 2V6 Ottawa, ON KIP lA4

Allison A. Thornton Nancy-X. Brooks Shashu Clacken Reyes

Tel.: 416-216-0225 Tel: (613) 788-2200 Fax.: 416-368-6302 Fax: (613) 788-2247

[email protected] [email protected]

Counsel for the Intervener, Canadian Civil Agent for the Intervener, Canadian Civil Liberties Association Liberties Association

Shores Jardine Fraser Milner Casgrain LLP 10104 - 103 Avenue, Suite 2250 99 Bank Street, Suite 1420 Edmonton, AB T5J OH8 Ottawa, ON KIP IH4

William W. Shores, Q. C. David R. Elliott Tel: (780) 448-9275 Tel: (613) 783-9638 Fax: (780) 423-0163 Fax: (613) 783-9690

[email protected] [email protected]

Counsel for Intervener, I. Brian Fjeldheim Agent for Intervener, I. Brian Fjeldheim (CEO Alberta) (CEO Alberta)

Waddell Raponi Fraser Milner Casgrain LLP 1002 Wharf St. 99 Bank Street, Suite 1420 Victoria, B.C. V8W 1T4 Ottawa, ON KIP IH4

John D. Waddell, Q.C. David R. Elliott Harold Turnham

Tel.: 250-385-4311 x. 201 Tel: (613) 783-9638 Fax.: 250-385-2012 Fax: (613) 783-9690

[email protected] [email protected]

Counsel for the Intervener, Keith Archer Agent for the Intervener, Keith Archer (CEO B.C.) (CEO B.C.) i

INDEX

Page PART I – OVERVIEW AND STATEMENT OF FACTS 1 A. Overview…………………………………………………………………………... 1 B. Summary of the Facts…………………………………………………………….. 2 i. Federal Elections Cannot Meet a Standard of Perfection………………………... 2 ii. Elections Canada Training Was Adequate and the Same as Anywhere in Canada……………………………………………………………………………… 5 iii. Registration of Voters in Etobicoke Centre Was Not Unusual…………………. 7 iv. There Are Election Day Oaths In Addition To Vouching…………………..….. 8 v. No Direct Evidence From Wrzesnewskyj……………………………………….. 9 vi. Summary of Facts and Issues at the Polls That Are the Subject of Wrzesnewskyj’s Appeal……………………………………………………………. 9 a. Poll 16……………………………………………………………………. 9 b. Poll 21…………………………………………………………………… 11 c. Poll 31……………………………………………………………………. 12 d. Poll 89…………………………………………………………………… 15 e. Poll 400…………………………………………………………………... 16 f. Poll 426…………………………………………………………………... 17 PART II – ISSUES FOR DETERMINATION 18 PART III – SUBMISSIONS 20 A. Law………………………………………………………………………………… 20 Statutory Requirements…………………………………………………………….. 20 Standard of Review…………………...……………………………………………. 20 The Purpose of the Canada Elections Act is Enfranchisement…………………….. 20 Elections Are Not To Be Lightly Overturned…………………...…………………. 20 The Presumption of Regularity…………………………………………………….. 21 The Burden of Proof………………………………………………………………... 22 The Balance of Probabilities and Rebutting the Presumption……………………… 22 The Meaning of “Irregularity”……………………………………………………... 23 B. The Application Judge Correctly Held that Wrzesnewskyj Failed to Establish His Alleged Irregularities………………………………………………………... 25 i. Overview…………………………………………………………………………. 25 ii. Wrzesnewskyj Failed To Establish That Any Elector Voted More Than Once… 25 iii. Wrzesnewskyj Failed To Establish That Two Electors Who Resided Outside of Etobicoke Centre Were Permitted To Vote …………………………………….... 26 iv. Wrzesnewskyj Failed To Establish That Electors at Polls 16, 21, 89 and 400 Were Permitted To Vote Without Being Vouched For…………….………….….. 27 C. The Application Judge Correctly Held That None of the Errors Established Are Irregularities Which Affected the Results………………………………... 30 i. Overview…………………………………………………………………………. 30 ii. Electors Voting in a Different Polling Division Do Not Affect the Results ……. 34 iii. Qualified Electors Voting Without Completing a Registration Certificate Do Not Affect the Results……………………………………………………………… 37 iv. Failure to Record Vouchers is Not an Irregularity That Affects the Results …... 38 D. Wrzesnewskyj Cannot Establish That the Results of the Election Were Affected…...... 39 PART IV – COSTS 40 PART V – ORDERS REQUESTED 40 PART VI – TABLE OF AUTHORITIES 41 PART VII – LEGISLATION 42

File Number: 34845

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ONTARIO SUPERIOR COURT OF JUSTICE)

B E T W E E N: BORYS WRZESNEWSKYJ

Appellant (Applicant) - and -

TED OPITZ

Respondent (Respondent) - and -

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), ALLAN SPERLING (RETURNING OFFICER, ETOBICOKE CENTRE)

Respondents (Respondents)

FACTUM OF THE RESPONDENT, TED OPITZ (RESPONDING TO THE APPEAL OF BORYS WRZESNEWSKYJ)

PART I – OVERVIEW AND STATEMENT OF FACTS A. Overview

1. On May 2, 2011, the 41st General Election was held across Canada. In a span of less than 40 days, hundreds of thousands of temporary workers were hired and trained to staff more than 64,000 polling stations across the country serving more than 12 million voters. This extraordinary marshalling of efforts and resources was undertaken in order to enfranchise Canadian citizens and fairly reflect their democratic choice.

2. In Etobicoke Centre, more than 50,000 citizens voted and elected Ted Opitz (“Opitz”) as their representative by a margin of 26 votes. The results of the election in Etobicoke Centre (the “Election”) were challenged by the runner-up, Borys Wrzesnewskyj (“Wrzesnewskyj”), who brought a contested election application pursuant to Part 20 of the Canada Elections Act (the “Act”). Wrzesnewskyj’s application was granted by Justice Lederer of - 2 -

the Ontario Superior Court of Justice (the “Application Judge”) in a decision that is the subject of an appeal to this Court by Opitz.

3. Despite having the election declared null and void, Wrzesnewskyj has filed this appeal, challenging the findings of fact and decision of the Application Judge. Wrzesnewskyj now asks this Court to overturn the refusal of the Application Judge to cast aside more than 100 votes because of alleged mistakes and technical non-compliance with election day procedures by Elections Canada workers, who were among the hundreds of thousands of temporary staff employed by Elections Canada. Wrzesnewskyj also makes very serious allegations, such as double voting by senior citizens in one poll and dereliction of duty by election workers, even though such allegations are not supported by any direct evidence or the testimony of any witness.

4. The Application Judge rightly rejected all of the allegations made by Wrzesnewskyj in this appeal, concluding either that they were not established or that they were of a minor or inconsequential nature that did not result in anyone voting who was not qualified or entitled to do so. Opitz submits that the Application Judge made no palpable or overriding errors of fact, and no errors of law, in arriving at the decisions complained of by Wrzesnewskyj in this appeal.

5. If this appeal were to be granted, the threshold for contested election applications in Canada would be lowered substantially below that set by the Application Judge in the judgment which is the subject of Opitz’s appeal. The standard of perfection in the running of elections that is urged upon this Court by Wrzesnewskyj is not achievable or consistent with the purposes of the Act, and would undermine rather than enhance the confidence of in the electoral process. The multiplicity of contested election applications, disenfranchisement of voters and uncertainty in election outcomes that would result if Wrzesnewskyj’s submissions are accepted cannot be what Parliament envisaged or intended when it enacted the provisions of the Act at issue in this appeal.

B. Summary of the Facts

i. Federal Elections Cannot Meet A Standard Of Perfection

6. Canada is composed of 308 federal electoral districts (or “ridings”). Each riding is further divided into polling divisions or “polls”, each comprised of between 300 and 500 - 3 -

electors. There were over 64,000 polling stations, located at more than 15,000 polling sites, set up on May 2, 2011 (“Election Day”) to conduct the most recent federal election (the “2011 Election”) serving more than 12.4 million voters. Affidavit of Michel Roussel, Joint Record of Documents, Vol. 4, Tab 51, paras. 8, 10 Report of the Chief Electoral Officer of Canada, on the 41st General Election, 2011, Elections Canada, at pp. 18, 35

7. Each poll is staffed by a deputy returning officer (“DRO”) and a poll clerk. Where there are multiple polling stations grouped together at the same polling site, there may be additional election officials such as a registration officer, information officer and central poll supervisor. These are in addition to the numerous election officials who work ‘behind the scenes’ in order to conduct elections in as fair and efficient a manner as possible. For the 2011 Election, more than 235,000 election worker positions were filled (180,000 of those working on Election Day) with 7,000 persons on standby across Canada. In this case, and in most federal elections, the period between the calling of the election and the date of the election was less than 40 days. Elections Canada and the returning officer for each polling division only had limited time to find, hire and train nearly quarter of a million temporary employees. Affidavit of Michel Roussel, Joint Record of Documents, Vol. 4, Tab 51, paras. 9, 25 8. The persons hired to work at polling stations on polling day are temporary workers and not staff retained full time for the purpose of administering elections. Recruiting is a challenge as election workers receive basic pay, must work a full day without scheduled breaks, and are prohibited from receiving assistance from other polling officials (even if such officials are not otherwise occupied and could rotate in to give another polling official a rest). Despite the best efforts and intentions of all involved, not all poll workers are able to master all of the jobs they are expected to undertake on polling day and some are replaced. Some officials also quit, resulting in new workers being hired and trained right up until polling day. A pool of additional election workers is trained and always kept on standby. Report of the Chief Electoral Officer of Canada, on the 40th General Election, Exhibit B to the Affidavit of Michel Roussel, Joint Record of Documents, Vol. 4, Tab 51, pp. 26-28 9. Despite these challenges in the electoral process, these temporary election workers are expected to be generalists and are responsible for mastering increasingly numerous and complex tasks involving various rules and guidelines, the completion of a wide array of forms, and managing a number of different stakeholders, including: - 4 -

• fulfilling the decision-making role that Parliament has expressly delegated to DROs to determine on election day who satisfies the requirements for being admitted to vote and to obtain a ballot; • fulfilling the decision-making role that Parliament has expressly delegated to DROs and/or registration officers to determine when the requirements for being registered to vote and be added to the voters list have been met; • observing and ensuring that candidates’ representatives present at polling stations comply with the applicable rules and procedures; • completing and/or receiving registration certificates, transfer certificates, correction certificates and forms for the authorization of a candidates representative; • reviewing the identification of all voters, including administering vouching if required; • administering all oaths, of which vouching is one; • providing assistance to electors with disabilities; • filling out the 30 page poll book; • counting ballots (including making the decision to accept or reject ballots); • preparing the statement of the vote; and • collecting and delivering all forms and materials (used and unused) to the applicable returning office. DRO and Poll Clerks Manual, Joint Book of Documents, tab 49, pp. 9-13 10. Given the millions of voters who come to the polls on election day, the hundreds of thousands of persons involved in running an election (and the number of tasks they are asked to carry out), and the tens of thousands of polling stations across the country, it is inevitable that mistakes will be made. Forms will be filled out incorrectly. Papers will be lost. These errors do not happen because of any malicious intent or wilful ignorance on the part either of elections officials or voters. Instead, they happen because an event of this magnitude that must be organized and conducted in a period of less than 40 days simply cannot be run on a standard of perfection.

11. It is an accepted fact that mistakes cannot be avoided in a federal election, particularly in an urban, high density riding such as Etobicoke Centre. Opitz and Wrzesnewskyj both acknowledged in the Court below, and the Application Judge accepted, that mistakes are inevitable. The experience of the returning officer for Etobicoke Centre is that clerical errors are common in all elections at all levels. The question before this Court is whether such unavoidable - 5 - errors can justify disenfranchising, either directly or indirectly, tens of thousands of electors who cast their ballots on Election Day, and overturning the results of an otherwise fair election. Reasons for Decision of the Application Judge, May 18, 2012, at paras. 4-6 (“Reasons for Decision”), Joint Record of Documents, Tab 2 ii. Elections Canada Training Was Adequate And The Same As Anywhere In Canada

12. Allan Sperling was the returning officer for Etobicoke Centre (the “Returning Officer”) for the 2011 election and had previously served as the Etobicoke Centre returning officer in the 2008 federal election. He is also the election clerk in Etobicoke Centre for Elections Ontario (and accordingly, in addition to the training that occurs federally, has the benefit of training from Elections Ontario). Mr. Sperling also served as DRO in federal elections prior to 2008. The role of returning officer is not a full time position. Mr. Sperling teaches leadership and management practices, and techniques for training and leading staff, at Humber College. Affidavit of Michel Roussel, Joint Record of Documents, Vol. 4, Tab 51, Tab 2, para. 19, Examination of Allan Sperling, Joint Record of Documents, Vol. 6, Tab 59, pp. 62-64, Qs. 244-246 Affidavit of Allan Sperling, Joint Record of Documents, Vol. 5, Tab 52, paras. 2-3

13. The Returning Officer made every effort to appoint experienced staff for the 2011 Election. His Assistant Returning Officer and ‘second in command’ has more than 30 years of hands-on election experience. The training officer (the official in charge of training all other workers) in Etobicoke Centre had experience as the training officer in two previous federal elections and over 20 years of electoral experience in other election positions. Many of the election officials appointed to work at the polls in this riding in 2011 had experience working in previous elections. Examination of Allan Sperling, Joint Record of Documents, Vol. 6, Tab 59, pp. 76 to 78, q. 296 to 304 Affidavit of Allan Sperling, Joint Record of Documents, Vol. 5, Tab 52, paras. 14-19, 29 14. For the 2011 Election, the Returning Officer appointed 697 persons as election officials in Etobicoke Centre including 538 DROs and poll clerks. Approximately 85 persons quit before Election Day and were replaced from the pool of standby workers who are hired and trained for such an event. Each election official was required to attend a training session that lasted approximately 2 to 2.5 hours and was provided with a manual and other materials - 6 -

(including “quick reference guides”) to assist them in carrying out their duties on Election Day. They were obligated to read those materials carefully. Affidavit of Allan Sperling, Joint Record of Documents, Vol. 5, Tab 52, paras. 29, 31-35 15. Election officials in Etobicoke Centre received the regular training for the 2011 Election that was given to election officials everywhere in Canada. That training program was developed and standardized by the office of Canada’s Chief Electoral Officer (the “CEO”). Training Officers were required to be familiar with giving training sessions and to have knowledge of adult learning principles. Training Officers delivered training sessions to all election officials working in Etobicoke Centre on Election Day. During training, various scenarios were presented to trainees to prepare them for possible situations that might arise on Election Day. Many of these training scenarios related to proving an elector’s identity and establishing the elector’s entitlement to vote. Training officers assessed the skills of trainees. It is common practice that trainees who are not well-suited to the roles to which they were appointed would be reassigned or asked not to work on Election Day. Affidavit of Michel Roussel, Joint Record of Documents, Vol. 4, Tab 51, Tab 2, paras. 49-52 Affidavit of Michel Roussel in Response to Opitz, Joint Record of Documents, Vol. 6, Tab 58, para. 6 16. Contrary to the suggestion in Wrzesnewskyj’s factum, the Returning Officer was fully aware of and knowledgeable about the material to be covered at training sessions. He attended the vast majority of sessions in order to speak to the importance of: (i) opening polls on time; (ii) counting votes and properly filling out statements of the vote; and (iii) ensuring that the election was conducted in a fair and unbiased manner in which the integrity of the process was maintained, the election was accessible to voters and that there was certainty in the results reflecting the votes cast. Any sessions that Mr. Sperling did not attend were attended by his Assistant Returning Officer. The training emphasized the need for election officials to be professional, to act with integrity and to follow policies and procedures mandated by Elections Canada. Affidavit of Allan Sperling, Joint Record of Documents, Vol. 5, Tab 52, paras. 33-41 Examination of Allan Sperling, Joint Record of Documents, Vol. 6, Tab 59, p. 45, q. 179; pp. 65 to 66, q. 252 to 257; p. 71, q. 276 17. Contrary to the suggestions in Wrzesnewskyj’s factum, the Returning Officer did not view the training of staff as inadequate. The comments attributed to him in Wrzesnewskyj’s factum were responses given when completing a post-election electronic report mostly selected - 7 - from a drop-down menu with a limited set of choices. The Returning Officer made it clear when he testified as a pre-hearing witness in this case that such comments were made as constructive suggestions concerning ways in which Elections Canada might improve the election system. When asked directly, under examination, the Returning Officer was clear that the training provided was “adequate”, and that election officials had sufficient training to do the job asked of them. Examination of Allan Sperling, Compendium of Opitz, Tab 3, p. 65, q. 250-251; pp. 68-70, q. 263-275 18. Wrzesnewskyj also suggests in his factum that the evidence of the two election workers who swore affidavits and were examined prior to the hearing in the court below indicates that they were not properly trained and did not know their jobs. This is neither fair nor accurate. Contrary to what is suggested in paragraph 34 of Wrzesnewskyj’s factum, the poll supervisor who gave evidence (J.J.) knew exactly what vouching was even though administering oaths and administering vouching is not part of a central poll supervisor’s job on election day. Moreover, although the DRO who gave evidence (C.C.) could not specifically recall a year after the election what was covered in training, she knew exactly what the vouching and other requirements were for voter identification and recalled clearly that during the course of training she and other elections officials were told of the importance of learning the content of the Elections Canada manuals, where all the relevant subjects are fully covered. Wrzesnewskyj tendered no evidence to suggest, let alone establish, that the training of election officials in Etobicoke Centre was aberrational in any way from the training provided in other electoral districts across Canada. Transcript of J.J. Examination, Joint Book of Documents, Vol. 7, Tab 61, p. 13, Qs. 38-39, pp. 46-47, Q. 193, p. 53, Qs. 222-223, pp. 68-69, Qs. 293-298 Transcript of C.C. Examination, Joint Book of Documents, Vol. 7, Tab 60, pp. 49-52, Qs. 187-189, 199-203 iii. Registration of Voters In Etobicoke Centre Was Not Unusual

19. To enfranchise voters and make it easier to get on the voters list and vote, Parliament has established a process of voter registration that now continues up to and including election day. Canada Elections Act, S.C. 2000, c. 9, ss. 49, 101, 161 (“CEA”) 20. The number of electors who were added to the list and permitted to vote by registration certificate on Election Day in Etobicoke Centre was well within the normal range. - 8 -

As a percentage of the voters, it was less than the Ontario and national averages and less than the percentage in other Toronto ridings. Affidavit of Michel Roussel in Response to Opitz, Joint Book of Documents, Vol. 6, Tab 58, paras. 1-3

iv. There Are Election Day Oaths In Addition To Vouching

21. Voters are required to establish their identity on election day before receiving a ballot. As stated in Opitz’s factum on appeal (“Opitz’s Appellant Factum”), they can do so in a number of ways, including by using government issued identification (such as a driver’s license) or by having someone, who is also on the list of electors in their polling division, vouch for them. When an elector is vouched for, both the elector and the person vouching for them must swear oaths in front of the DRO for that poll. CEA, supra, ss. 143, 161 22. Voters can also swear oaths on election day for other reasons, including: to affirm to the DRO that they are qualified to vote (“oath of qualification to vote”); to affirm their place of residence if the proof of residence provided is not accepted by the DRO or a candidate scrutineer (“oath of elector as to residence”); to be permitted to vote if another person voted using the elector’s name or if the elector’s name was inadvertently crossed off the voters list (“oath of personated elector”); to correct a mistake on the voters list with respect to the information of the voter, such as a misspelled name or incorrect address (“oath as to error on list”); and an oath of a person who is providing assistance to an elector (“oath of assistance”). CEA, supra, ss. 143(3.2), 144 Sample Poll Book, Joint Book of Documents, Vol. 1, Tab 12, pp. 13-16 23. All electors requiring an oath are to be listed on page 22 of the poll book. Put differently, that list is not confined to electors and vouchers who swore oaths in connection with the vouching process. Accordingly, it cannot be assumed that notations on that page in the poll book (or lack thereof) somehow demonstrate that improper or defective vouching occurred, or that electors were permitted to vote without vouching taking place at all. Sample Poll Book, Joint Book of Documents, Vol. 1, Tab 12, p. 22 24. There is, in fact, no evidence that vouching failed as a safeguard in any poll in Etobicoke Centre because the prescribed vouching procedure was administered improperly by election officials. - 9 -

v. No Direct Evidence From Wrzesnewskyj 25. There is no direct evidence of any of the irregularities alleged. No scrutineer, or anyone else for that matter, gave evidence of any observed irregularities on Election Day. Despite being provided by Elections Canada with the names and contact information for all election officials who worked at the polling stations in question on Election Day, Wrzesnewskyj failed to tender the evidence of a single witness to prove any of the irregularities complained of. vi. Summary of Facts and Issues at the Polls That Are the Subject of Wrzesnewskyj’s Appeal a. Poll 16 26. Wrzesnewskyj takes the position that 7 votes at Poll 16 should have been cast aside by the Application Judge, but were not. Wrzesnewskyj alleges that 6 of these votes should have been disqualified because they were cast by electors who required a voucher in order to obtain a ballot but were not vouched for. He also alleges that 1 vote should have been disqualified because it was cast by an elector who was registered on the Official List of Electors in Poll 19. He takes this position even though all voters from Polls 16 and 19 cast their ballots in the same polling site, namely Valleyfield Public School. Factum of the Appellant, Borys Wrzesnewskyj at para. 52 (“Factum of Wrzesnewskyj”) Affidavit of Michel Roussel in Response to Opitz, Joint Record of Documents, Vol. 6, Tab 58, para. 22

The DRO Was Experienced and Understood The Rules 27. The Election was the third election in which the DRO for Poll 16 had worked. She testified that she attended the training sessions two weeks prior to the Election, which included training in respect of the rules and procedures relating to vouching and voter identification, a review of the manual for DROs and the completion of a test at the end of the session. This was similar to the training she had received for the previous federal election on which she had worked. The DRO for this poll received and reviewed the DRO manual prior to Election Day and understood the rules regarding voter identification and vouching. Transcript of C.C. Examination, Joint Book of Documents, Vol. 7, Tab 60, pp. 20-22 Qs. 60- 67, pp. 49-53, Qs. 187-189, 199, 201-202, 207

Six Electors May Not Have Required Vouching 28. Six names (and one name that was struck out) were recorded on page 22 of the poll book for Poll 16, the page where electors requiring some type of oath were recorded. There - 10 - were various notations written next to the names relating to address identification. Page 23 of the poll book, where the names of vouchers would be recorded, was left blank. The DRO testified that she did not make any of the notations in the poll book and presumes that the notations were made by the poll clerk because that is the poll clerk’s job. Poll Book, Polling Division 16, Joint Book of Documents, Vol. 1, Tab 15 Factum of Wrzesnewskyj at para. 54 Transcript of C.C. Examination, Joint Book of Documents, Vol. 7, Tab 60, pp. 6-7, Qs. 11-12 29. The DRO did not recall any elector requiring a voucher at Poll 16 in order to vote. She recalled turning away a number of people, however, because they did not have proper identification in order to vote. At least one elector required an interpreter and that interpreter swore an oath of assistance. Transcript of C.C. Examination, Joint Book of Documents, Vol. 7, Tab 60, pp. 53-55, Qs. 211-213, 216-219 30. Wrzesnewskyj adduced no direct evidence of any voting irregularity at Poll 16, including no evidence that anyone who was not qualified to vote in the Election did so. This is the case even though the records of Elections Canada indicate that Wrzesnewskyj had a scrutineer present at Poll 16 on Election Day. Affidavit of Michel Roussel in Response to Opitz, Joint Record of Documents, Vol. 6, Tab 58, para. 22 31. Contrary to the suggestion of Wrzesnewskyj at paragraph 56 of his factum, the DRO for Poll 16 did not concede that 6 electors recorded in the poll book voted despite having no identification. She did agree that, if the electors did not have identification, they would have required vouchers, and that there were no names of vouchers recorded in the poll book. However, she stated unequivocally that, while she could not remember any person requiring a voucher because the election occurred more than one year ago, she would not have permitted any person who required a voucher to vote unless that person had, in fact, been vouched for. Transcript of C.C. Examination, Joint Book of Documents, Vol. 7, Tab 60, pp. 7-8, Qs. 13-15, pp. 80-82, Qs. 344-355 32. The Application Judge found that the recordings in the poll book complained of by Wrzesnewskyj might well represent a scenario where the electors in questions were fully entitled to vote and simply provided an oath confirming their address (which is a type of oath not requiring a voucher and was correctly identified by the Application Judge as such). He concluded that “the poll book is consistent with regularity – namely that these 6 were address oaths that did not require vouching”, and on this basis refused to disqualify these ballots. This - 11 -

finding was supported by the evidence and is consistent with the overriding presumption of regularity that applies in a case of this nature. Reasons for Decision, Joint Book of Documents, Tab 2, at paras. 136-139 Factum of Wrzesnewskyj at para. 102 CEA, supra, s. 143(3.2)

Poll 16 and Poll 19 Were In The Same Location

33. As stated above, Poll 16 was located at Valleyfield Public School along with five other polling divisions, including Poll 19. One elector1, recorded as having voted at Poll 16, resides in Poll 19, according to the completed registration certificate. The elector therefore was at the correct place but at the wrong table. The DRO for Poll 16 acknowledged that this was an oversight. However, there was no evidence that the elector in question was not qualified or entitled to vote and there was no evidence whatsoever that this elector, somehow, voted twice. In the circumstances, the Application Judge correctly refused to cast this vote aside because there was not evidence that the elector voted more than once and because to disallow the vote would have disenfranchised the elector. Roman Gawur Affidavit, Joint Book of Documents, Vol. 1, Tab 11, p. 3, Exhibit B Registration Certificates, Poll 16, Joint Book of Documents, Vol. 1, Tab 14 Reasons for Decision, Joint Book of Documents, Tab 2, at paras. 97-99 b. Poll 21 34. Wrzesnewskyj takes the position that 6 votes at Poll 21 should also have been cast aside. Wrzesnewskyj argues that these votes were cast improperly because each elector in question could only have identified themselves by vouching, but were not vouched for. Once again, the only basis for this allegation was entries in the poll book for Poll 21. No witness was called to establish that anyone who cast a ballot at Poll 21 was not qualified or entitled to do so. Factum of Wrzesnewskyj at para. 60 35. The poll book for Poll 21 records 14 names and addresses of electors requiring an oath. All 14 appear on the voters list for poll 21 so there is assurance that every elector was, in fact, both qualified to vote and entitled to do so. There was no direct evidence before the Application Judge that any of these electors actually required a voucher in order to vote, or that they were permitted to vote without first properly identifying themselves. Poll Book, Polling Division 21, Joint Book of Documents, Vol. 1, Tab 17 Official List of Electors, Polling Division 21, Joint Book of Documents, Vol. 2, Tab 19

1 Voter 16-18-6 - 12 -

36. In the circumstances, the Application Judge correctly refused to cast these 6 votes aside. He concluded that the electors in question may well have simply taken an oath with respect to their addresses, and did not require vouching. Alternatively he concluded that it may also have been the case that the poll book reflected a situation where the electors in question were properly vouched for but the identities of the vouchers were mistakenly not recorded. As a result, the poll book was “consistent with regularity” and did not require that any of the voters in question be disenfranchised. These findings are supported by the evidence. Poll Book, Polling Division 21, Joint Book of Documents, Vol. 1, Tab 17 Reasons for Decision, Joint Book of Documents, Tab 2, at paras. 141-142

c. Poll 31 37. Wrzesnewskyj takes the position that 53 votes at Poll 31 should also have been cast aside. He alleges that 52 votes should be cast aside because they were cast by electors who are ordinarily resident in polling divisions in Etobicoke Centre other than Poll 31, and 1 additional vote should also be cast aside because the elector in question “did not complete” a registration certificate to establish his entitlement to vote. Neither of these contentions has merit, and they were correctly rejected by the Application Judge. Factum of Wrzesnewskyj, at paras. 63-66

The Majority Of Electors At Poll 31 Were At The Correct Polling Station 38. Poll 31 was located at Westmount Park Church along with three other polls, all at adjacent tables in the same room. There were also three other polling stations, comprising seventeen polling divisions, located within 400 metres of Westmount Park Church. Roman Gawur Affidavit, Joint Book of Documents, Vol. 1, Tab 11, pp. 2-3 Transcript of J.J. Examination, Joint Book of Documents, Vol. 7, Tab 61, p. 42, Q. 174 39. The poll book for Poll 31 records that 86 persons voted by registration certificate and records an address for each of them. Of the 86 names recorded: (i) 18 listed an address in Poll 31; (ii) 44 listed an address in one of the three polls that was also located at Westmount Park Church; (iii) 16 listed an address at one of the three polling stations located within 400 metres of Westmount Park Church; (iv) 6 listed an address located elsewhere in Etobicoke Centre; and (v) 2 listed an address that is not located in Etobicoke Centre. Poll Book, Polling Division 31, Joint Book of Documents, Vol. 2, Tab 23 40. The central poll supervisor for Westmount Park Church confirmed that Poll 31 was the poll located closest to the registration officer’s table in the room where all the voting - 13 - occurred at Westmount Park Church. He testified that many people who voted after completing registration certificates may have simply gone to vote at the closest table after leaving the registration officer’s table. This entirely sensible explanation was confirmed by the registration officer for Poll 31, who told the Returning Officer that persons who were not on the list of electors but were supposed to vote at a polling division at Westmount Park Church were allowed to vote at any poll that was not busy at the time. Further, the registration officer also indicated that some elderly electors who resided in polling divisions not located at Westmount Park Church and who arrived late on Election Day were permitted to vote because she thought it would be better to let them vote at the wrong polling division than not vote at all. Transcript of J.J. Examination, Joint Book of Documents, Vol. 7, Tab 61, pp. 41-42, Qs. 171- 174 Emails from Allan Sperling’s Investigation, Joint Book of Documents, Vol. 6, Tab 53, pp. 1-2

41. The Returning Officer also spoke with the DRO and poll clerk for Poll 31. The Returning Officer thought that both officials “knew the process well”. Neither recalled electors from other polling divisions voting at their polls. However, all but two of the registration certificates which they would have received from electors, and which were completed by the registration officer, did not indicate the elector’s polling division. Therefore, they would not have known which polling division the elector resided in because only registration officers have a list (or poll key) that correlates particular street addresses with particular polling divisions. Emails from Allan Sperling’s Investigation, Joint Book of Documents, Vol. 6, Tab 53 p. 2 42. Wrzesnewskyj led no evidence to establish that any of the electors in question were not qualified to vote or entitled to vote. Nor did he adduce any evidence to establish that any of these electors voted twice. In these circumstances the Application Judge correctly refused to cast aside the votes of any person who resided in Etobicoke Centre but voted at the wrong polling division on Election Day. The Application Judge decided that allowing the votes to stand was consistent with the purpose of enfranchising citizens. Moreover, absent evidence of anyone voting more than once, the Application Judge concluded that the result of the Election was not affected by the votes in question, and instead would be affected if such votes were cast aside. These findings were amply supported by the evidence. Reasons for Decision, Joint Book of Documents, Tab 2, at paras. 97-99 - 14 -

No Electors Resided Outside Etobicoke Centre On Election Day

43. As stated above, 2 of the electors recorded in the poll book for Poll 31 listed the same address located outside of Etobicoke Centre. During the proceedings before the Application Judge, however, counsel for Opitz produced a copy of a land registry entry and a copy of a title deed which indicated that the two electors had completed the purchase of a home in Etobicoke Centre on April 29, 2011, three days before Election Day. There was no evidence that either of these electors voted twice. The Application Judge considered the evidence and found that on Election Day both electors were resident in Etobicoke Centre. This finding was also amply supported by the evidence.2 Reasons for Decision, Joint Book of Documents, Vol. 1, Tab 2, at para. 100 Request to Admit, Ted Opitz, Joint Book of Documents, Vol. 8, Tab 66, pp. 4-8

Electors Whose Registration Certificates Cannot Be Found Are Qualified On The Voters List 44. Registration certificates were located for 70 of the 86 electors recorded in the poll book. All 70 certificates that were located were completed and signed by the elector and the registration officer. The DRO for poll 31 signed a statement on page 31 of the poll book that 86 electors voted by registration certificate and that 86 registration certificates were inserted in the corresponding envelope for such certificates. However, 16 of the certificates could not be located by Elections Canada. Poll Book, Polling Division 31, Joint Book of Documents, Vol. 2, Tab 23 Registration Certificates, Polling Division 31, Joint Book of Documents, Vol. 2, Tab 24 Factum of Wrzesnewskyj at para. 53 45. The Application Judge set aside the votes of 15 of the 16 electors for whom no registration certificate could be found. For the reasons set out in the Opitz Appellant Factum, Opitz respectfully submits that he erred in doing so. The Application Judge did not set aside 1 of the 16 votes because that elector’s name appeared on the voters list for Poll 30 and therefore the qualification of that elector to vote had been demonstrated. However, as noted in the Opitz Appellant Factum, 14 (not just 1) of the 16 electors actually appeared on voters lists for Etobicoke Centre and therefore were also demonstratively qualified. The Application Judge appears to have overlooked this important fact in rendering his decision. For the very same

2 The Application Judge disqualified these two votes, however, on the basis that by the time of the proceedings before him, the registration certificates for these voters could not be found. The disqualification of these votes is the subject of Opitz’s appeal. - 15 -

reasons that the Application Judge was correct in not casting aside the 1 vote referred to immediately above, where the elector’s name appeared on the voters list for Poll 30, he was incorrect in casting aside 14 additional votes in circumstances where the electors names also appeared on the voters list in respect of other polls in Etobicoke Centre. His decision is inconsistent in this respect and cannot be reconciled. Reasons for Decision, Joint Book of Documents, Tab 2, at paras. 100 Elections Canada Summaries, Joint Book of Documents, Vol. 6, Tab 54, p. 1

d. Poll 89 46. Wrzesnewskyj takes the position that 4 votes at Poll 89 should also have been cast aside because: (i) 2 electors required a registration certificate and no such certificate could be found for them; and (ii) 2 electors recorded in the poll book for Poll 89 do not have the name of a voucher listed on the opposite page. Wrzesnewskyj relied on no evidence, other than the poll book and registration certificates, in support of his allegations concerning Poll 89, even though Elections Canada records indicate that he had a scrutineer present there. He adduced no evidence to establish that anyone who cast a ballot at Poll 89 was not qualified or entitled to do so. Factum of Wrzesnewskyj at paras. 70-71 Affidavit of Michel Roussel in Response to Opitz, Joint Record of Documents, Vol. 6, Tab 58, para. 22

Two Electors Not On The List Proved Their Qualifications 47. Wrzesnewskyj contends that two electors who are recorded in the poll book for Poll 89 as having taken oaths required registration certificates because they were not on the voters list for this poll. However, the poll book indicates that these electors were vouched for by, respectively, their wife and granddaughter, each of whom resides at the same address and is on the voters list. The oath taken for vouching includes explicit confirmation that the person in question is, in fact, 18 years of age and a Canadian citizen. The Application Judge therefore correctly declined to disqualify these votes, even though the registration certificates could not be found, on the basis that the record of the oath being taken sufficiently proved the qualification of the electors to vote. Poll Book, Polling Division 89, Joint Book of Documents, Vol. 3, Tab 30, pp. 16, 22-23 Reasons for Decision, Joint Book of Documents, Tab 2, at para. 128

Two Electors Were Vouched For By Family Members 48. The other 2 electors recorded in the poll book as having taken oaths have recorded opposite their names notations indicating that they were vouched for, respectively, by their - 16 -

mother and daughter-in-law. This is so even though the names of the vouchers were not recorded. There are electors on the voters list for Poll 89 who reside at the same address as these electors and are of the appropriate gender and age to be the family member indicated in the poll book. Poll Book, Polling Division 89, Joint Book of Documents, Vol. 3, Tab 30, pp. 22-23 List of Electors, Polling Division 89, Joint Book of Documents, Vol. 3, Tab 32, pp. 2, 9 Factum of Wrzesnewskyj, at para. 124

e. Poll 400 49. Wrzesnewskyj takes the position that 8 additional votes at Poll 400 should also have been cast aside because: (i) page 31 of the poll book records that 16 persons required a voucher, but only 10 pairs of vouchers and vouchees were recorded at page 23 of the poll book; and (ii) the names of 2 vouchers were not recorded in the poll book. In both cases, Wrzesnewskyj argues that the absence of such information indicates that prescribed vouching requirements were not complied with. He adduced no direct evidence, however, to establish that anyone who cast a ballot at Poll 400 was not qualified or entitled to do so. This is the case even though the records of Elections Canada indicate that Wrzesnewskyj had a scrutineer present at Poll 400 on Election Day. Factum of Wrzesnewskyj at paras. 72-74, 127 Affidavit of Michel Roussel in Response to Opitz, Joint Record of Documents, Vol. 6, Tab 58, para. 22 Six Electors Did Not Require A Voucher 50. Of the 16 electors recorded on page 22 of the poll book as having taken an oath, 6 of them have notations recorded on page 23 which indicate that they did not require a voucher in order to vote. For example, the notation “error on list” appears several times. As stated above, one of the oaths prescribed by Elections Canada at page 13 of the poll book, and which has nothing to do with vouching, is the oath concerning the correction of errors contained in the Official List of Electors. For this reason, the reference to 16 oaths in the poll book clearly does not mean that there were 16 electors who were vouched for. Instead, 16 oaths of different types were taken by electors who cast ballots at Poll 400 on Election Day, only 10 of which related to vouching. Poll Book, Polling Division 400, Joint Book of Documents, Vol. 3, Tab 36, pp. 22, 23, 29, 31 Sample Poll Book, Joint Book of Documents, Vol. 1, Tab 12, pp. 13-16 51. With respect to the two electors for whom the relationships, but not the names, of the corresponding vouchers were recorded, the poll book indicates explicitly that the vouchers - 17 -

were, respectively, the farther and daughter of the electors in question. There are electors on the voters list for Poll 400 that reside at the same address as the respective electors in question and are of the appropriate gender and age to be the family members indicated in the poll book. Poll Book, Polling Division 400, Joint Book of Documents, Vol. 3, Tab 36, pp. 22-23 List of Electors, Polling Division 400, Joint Book of Documents, Vol. 3, Tab 38 52. In the circumstances, the Application Judge correctly refused to set aside the votes of any of these electors because he found that 6 electors listed did not require a voucher and the other 10 were part of proper vouching pairs. His decisions in this regard are amply supported by the evidence. Reasons for Decision, Joint Book of Documents, Tab 2, at para. 144

f. Poll 426 53. Wrzesnewskyj takes the position that 7 more votes at Poll 426 should also have been cast aside. Poll 426 was located at a seniors’ residence and therefore the entire voters list for this particular poll was comprised only of persons who lived at that residence. Wrzesnewskyj argues that 7 votes should have been rejected because either: (i) these 7 senior citizens somehow voted twice; or (ii) the registration certificates for these 7 senior citizens could not be located. Factum of Wrzesnewskyj at paras. 75-80 No Evidence Any Elector Voted More Than Once 54. Wrzesnewskyj’s allegation concerning 7 senior citizens having voted twice is extremely serious. Voting twice is misconduct under the Act punishable by imprisonment. Nevertheless, Wrzesnewskyj adduced no direct evidence, or indeed any evidence, to establish that even a single person did, in fact, vote twice. Instead, he relies upon the fact that certain names were crossed off the voters list even though the same people are recorded in the poll book as having voted by registration certificate. The simple explanation for this, of course, and the one accepted by the Application Judge (after finding that there were 5 additional electors on the voters list who were not counted by Wrzesnewskyj but who did cast ballots), is that election officials at Poll 426 simply crossed off the voters list people who cast ballots, including by reliance upon registration certificates to establish their entitlement to vote, in circumstances where those certificates may not, strictly speaking, have been required because the names of the individuals in question already appeared on the voters list. In other words, too much proof of identity was provided, rather than not enough. Poll Book, Polling Division 426, Joint Book of Documents, Vol. 4, Tab 39, pp. 22-23 - 18 -

Crossed-off List of Electors, Polling Division 426, Joint Book of Documents, Vol. 4, Tab 40 Reasons for Decision, Joint Book of Documents, Tab 2, at paras. 89, 116

PART II – ISSUES FOR DETERMINATION

55. Opitz takes the following positions with respect to Wrzesnewskyj’s issues for determination on this appeal:

(a) The decision of the Application Judge to uphold the votes cast by 7 electors at Poll 16 should not be overturned because:

(i) the Application Judge was correct in finding that Wrzesnewskyj failed to establish that 6 electors required a voucher in order to vote and also failed to establish that those electors were permitted to vote without vouching; and

(ii) the Application Judge was correct in finding that an elector voting in the wrong polling division is not an irregularity that affected the results of the Election;

(b) The decision of the Application Judge to uphold votes cast by 6 electors at Poll 21 should not be overturned because he was correct in finding that Wrzesnewskyj failed to establish that the 6 electors required a voucher in order to vote and that such electors were permitted to vote without vouching;

(c) With respect to Poll 31:

(i) the decision of the Application Judge to uphold 1 vote of an elector for whom no registration certificate could be found was correct because permitting a qualified elector to vote, even if no registration certificate could subsequently be located, is not an irregularity that affected the results of the election;

(ii) the decision of the Application Judge to uphold 52 votes of electors who voted in the wrong polling division should not be overturned because he was correct in finding that, in the circumstances of this case, voting in the wrong polling division was not an irregularity that affected the results of the Election; and - 19 -

(iii) the decision of the Application Judge to uphold the votes of two electors who were alleged to have resided outside of Etobicoke Centre should not be overturned because the Application Judge made a finding of fact that those electors resided in Etobicoke Centre on Election Day, which was amply supported by the evidence;

(d) The decision of the Application Judge to uphold four votes at Poll 89 should not be overturned because:

(i) Wrzesnewskyj failed to establish that 2 electors who required vouching to establish their identity were permitted to vote without being vouched for; and

(ii) the Application Judge was correct in finding that permitting 2 electors, for whom no registration certificate could be located but for whom there was evidence of qualification to vote, is not an irregularity that affected the results of the Election;

(e) The decision of the Application Judge to uphold eight votes at Poll 400 should not be overturned because:

(i) the Application Judge made a finding of fact, amply supported by the evidence, that 6 of the voters in question did not require vouching oaths in order to vote; and

(ii) Wrzesnewskyj failed to establish that the remaining 2 electors were permitted to vote without being vouched for; and

(f) The decision of the Application Judge to uphold seven votes at Poll 426 should not be overturned because:

(i) he made a finding of fact that there was no discrepancy in the number of ballots cast and the number of voters recorded that was amply supported by the evidence; and

(ii) the Application Judge was correct in finding that Wrzesnewskyj failed to establish that any elector at Poll 426 voted more than once. - 20 -

PART III – SUBMISSIONS

A. Law

Statutory Requirements 56. Opitz relies on the interpretation of the Act set out at paragraphs 24 to 26 of the Opitz Appellant Factum. Sections 524(1)(b) and 531(2) of the Act clearly state that a court may only declare an election void if the application establishes that there were irregularities, fraud or corrupt or illegal practices that affected the result of the election. In this case, Wrzesnewskyj could only succeed in disqualifying the ballots complained of and voiding the results of the Election if he established that: (i) the “irregularities” alleged, did, in fact, occur; (ii) those irregularities are of such a nature that they could have affected the results of the Election; and (iii) irregularities did, in fact, affect the results of the Election. Opitz Appellant Factum at paras. 24-26 Standard of Review 57. Opitz agrees with Wrzesnewskyj that the standard of review to be applied to a question of law is correctness and the standard of review to be applied to a question of fact is palpable and overriding error. Wrzesnewskyj has raised both questions of law and questions of fact as issues for determination in his appeal. Factum of Wrzesnewskyj at para. 81 The Purpose of the Canada Elections Act is Enfranchisement 58. The clear purpose of the Act is to enfranchise all qualified citizens in order to allow them to express their democratic preferences. Opitz relies on the submissions made and provisions of the Act cited at paragraphs 30-31 of the Opitz Appellant Factum. Opitz Appellant Factum at paras. 30-31

Elections Are Not To Be Lightly Overturned 59. Opitz relies on the submissions made in the Opitz Appellant Factum that there is a high standard for voiding elections under the Act, and to overturn elections too easily could result in a flood of judicial challenges to the results of elections and would undermine, rather than enhance, the confidence of Canadians in the electoral system. Opitz Appellant Factum at paras. 33-38 60. In this appeal, Wrzesnewskyj asks this Court to lower the bar to voiding elections even further than at the level set by the Application Judge. The standard that is requested by - 21 -

Wrzesnewskyj is, in essence, perfect compliance with the provisions of the Act. He takes the position that virtually any error or omission by a temporary official of Elections Canada, that the electors had no knowledge of or control over, should result in the disqualification of votes even if those votes were cast by Canadians that were qualified and fully entitled to vote in the election in question. Such a standard is untenable and not practical. As has already been established, mistakes and errors are the inevitable result of the large and complex task of administering a nation-wide election. If any and all errors properly form a legal basis for overturning an election, than it is almost assuredly the case that the election of any number of Members of Parliament will be in doubt and subject to being overturned following each election after a judicial audit of election documents. Such a result cannot be the intent of Parliament. Factum of Wrzesnewskyj at paras. 5, 11, 93, 94, 98, 106, 115, 120 The Presumption of Regularity 61. Opitz relies on the submissions made in the Opitz Appellant Factum in support of a presumption of regularity that should be applied in cases of this nature when considering the actions of election officials in carrying out their duties. In the absence of proper and sufficient evidence to the contrary, courts must presume that election officials would only permit voting by qualified electors who have satisfactorily proven their identity and residence, as required by the Act. Further, proof of one irregularity does not rebut the presumption of regularity in respect of another, independent matter. Nor does an irregularity caused by one election official rebut the presumption of regularity against a separate official. By way of example, the failure to record information in the poll book by the poll clerk does not rebut the presumption that the DRO would have administered oaths correctly, and an irregularity that may have occurred at one poll does not confirm or establish the existence of an irregularity at a different poll. Opitz Appellant Factum at paras. 39-48 62. In this appeal, Wrzesnewskyj asks this Court to overturn decisions made by the Application Judge rejecting various allegations that election officials failed to abide by their duties or to comply with the Act. Opitz submits that, not only is there a general presumption of regularity in respect of election officials, but that presumption is strengthened by the fact that each election official must swear an oath prior to their appointment which includes the following words: I will perform the duties of my office in an impartial manner and according to the law; [emphasis added] - 22 -

Sample Poll Book, Joint Book of Documents, Vol. 1, Tab 12, p. 2

63. That each election official takes such an oath should be properly viewed as further evidence that election officials perform their duties in accordance with the Act and should strengthen the presumption of regularity in respect of such performance.

64. Moreover, Parliament has expressly delegated decision-making authority on election day to DROs and registration officers to determine if the safeguards and requirements to obtain and cast a ballot have been satisfied. Such provisions are a further recognition and reinforcement of the presumption of regularity. CEA, supra, ss. 143(4), 144.1, 161(4) The Burden of Proof 65. Opitz relies on the submissions made in the Opitz Appellant Factum that the burden of proof in a contested election application rests entirely with the applicant; in this case, with Wrzesnewskyj. The applicant must establish, under section 524(1)(b) of the Act, both the existence of an irregularity within the meaning of the Act and that it affected the results of the election. The Application Judge found on the evidence that a number of the “irregularities” complained of by Wrzesnewskyj were either not established or did not affect the results of the Election. Those decisions were correct in fact and law, and there is no proper basis on which they can or should be disturbed on appeal. CEA, supra, s. 524(1)(b) Opitz Appellant Factum at paras. 49-52

The Balance of Probabilities and Rebutting the Presumption 66. Opitz relies on the submissions made in the Opitz Appellant Factum in respect of the type of evidence required in a case of this nature to rebut the presumption of regularity and establish the existence of an irregularity that affected the results of the Election. In particular, where the allegations made are of a more serious or morally blameworthy nature, there are commonsense considerations that may make it appropriate for the court to require more persuasive and cogent evidence before concluding that the applicable threshold of proof has been reached. In the face of a presumption of regularity a court should demand particularly “clear, convincing and cogent” evidence before concluding that the presumption has been rebutted and accepting assertions that inherently improbable and unlikely events did, in fact, occur. Perhaps the best example concerns Wrzesnewskyj’s unfounded assertion that 7 senior citizens with no - 23 -

apparent motive to do so voted twice in the Election. The onus was on Wrzesnewskyj to provide proper evidence in support of his allegations that rebuts the presumption of regularity and establishes the inherently improbable occurrence of the events alleged. This he did not do. Opitz Appellant Factum at paras. 49-52 67. As stated above, in this appeal, Wrzesnewskyj asks this Court to overturn the Application Judge’s refusal to find that any person in Etobicoke Centre did, in fact, vote more than once. Voting more than once is a serious allegation against not only against the election official who permitted it to happen, but also against the elector who is alleged to have cast the additional, improper ballot. When such serious allegations are made against election officials and electors, a court must demand the most convincing and persuasive evidence to find that double voting did, in fact, occur. There is no such evidence in this case.

68. The necessity of requiring particularly convincing and cogent evidence where double voting is alleged is reinforced by the fact that requesting a second ballot is an offence under section 483(b) of the Act, carrying a penalty of a fine up to $5,000 and imprisonment of up to 5 years. That voting more than once is an offence punishable under the Act makes the likelihood of someone attempting to do so inherently improbable. Our electoral system is premised on the good faith and honesty of election officials and the electorate. That we do not require our electors to “ink their fingers” is a testament to the faith Parliament has in the honesty and fairness of our citizens and its well placed trust that they will not attempt to take improper (and indeed unlawful) advantage of the system. Wrzesnewskyj’s appeal wrongly presumes the reverse. CEA, supra, ss. 483(b), 500(5)

The Meaning of “Irregularity” 69. Opitz submits that Wrzesnewskyj has not proven that the result of the Election was affected by irregularities. Given the lack of proof and the nature of the allegations made, this Court may conclude that nothing alleged by Wrzesnewskyj in either this appeal or the Appeal by Opitz affected the result of the Election without having to fully determine the meaning of “irregularities” as used in section 524(1)(b) of the Act. However, to the extent that the Court considers it necessary or desirable to determine the proper interpretation of “irregularities”, Opitz makes the following submissions. - 24 -

70. The meaning of irregularities is informed by the wording of section 524(1)(b) read as a whole. Under the statutory test, an election can only be voided as a result of irregularities which, in fact, affected the result of an election. Inherent in the definition of “irregularities” therefore is the concept of whether what is alleged could, substantively, affect the election result. In Opitz’s submission, the result of the election could only be affected by allegations that improper votes were cast (as Wrzesnewskyj alleges in this case) where those votes could not otherwise have been cast, but for the irregularity alleged. Such capacity to substantively affect the election result, in the overall context of the Act and the intention to enfranchise voters, must relate to voter qualification. On this basis, an alleged flaw or non- compliance would not be considered an irregularity unless it could result in a non-qualified person casting a ballot or voting more than once.

71. Whether what is alleged could affect the result and should therefore be considered an irregularity will be determined by various factors, depending on the nature of the allegation made. These include: the purpose of any provision not complied with; whether there has been substantial non-compliance, rather than a trivial error or mistake; whether the provision not complied with is a mandatory or directory provision (non-compliance with the former could affect the result; non-compliance with the latter would not); whether the error or non-compliance is nonetheless in accordance with the principles of the Act; and, an examination of what would be different if the irregularity had not occurred. Beamish v. Miltenberger, [1997] N.W.T.R. 160 , at paras. 30-33 (“Beamish”) Flookes v. Shrake (1989), 70 Alta. L.R. (2d) 374 at para. 29, 50, 75 (“Flookes”) Cusimano v. Toronto (City), 2011 ONSC 7271 (ONSC Div Ct.), at para. 91 (“Cusimano”) 72. An instructive example, and one which Wrzesnewskyj agreed in the court below could not form a ground for voiding the Election, is the failure of an election official to sign a registration certificate. The failure of the election official to sign the certificate in the box indicated is an error or omission and is arguably a non-compliance with section 161(4) of the Act, which requires the election official (upon the elector satisfying the proof of identity and residency requirements) to complete the prescribed form. However, such an omission could not affect the result of the election because, had the irregularity not occurred, the elector would still have been permitted to vote; the only difference would be that the election official would have - 25 - signed the certificate. Therefore, this particular non-compliance does not rise to the level of an “irregularity” under section 524(1)(b). CEA, supra, s. 161(4) Cusimano, supra at para. 91

B. The Application Judge Correctly Held That Wrzesnewskyj Failed to Establish His Alleged Irregularities

i. Overview 73. Wrzesnewskyj failed to establish the following before the Application Judge:

(a) that electors voted more than once (Poll 426);

(b) that electors who did not reside in Etobicoke Centre were permitted to vote (Poll 31);

(c) that electors who required vouching were permitted to vote without being properly vouched for (Polls 16, 21, 89 and 400).

74. In each instance, the Application Judge made well grounded findings of fact, on the basis of ample evidence that establishes that the irregularities complained of by Wrzesnewskyj in his appeal either did not occur or did not affect the results of the Election.

75. Wrzesnewskyj has failed to identify any palpable or overriding error made by the Application Judge in respect of any of those findings. Instead, he proceeds as if this were a hearing de novo, and invites this Court to substitute its view of the evidence for that of the Application Judge. This Court, however, has explicitly and repeatedly rejected such an approach in Housen v. Nikolaisen and its progeny. That is so, even though the hearing in this case took place on the basis of a paper record (and eight days of oral submissions). Housen v. Nikolaisen, 2002 SCC 33 at paras. 23-25 (“Housen”) Factum of Wrzesnewskyj at para 81 ii. Wrzesnewskyj Failed To Establish That Any Elector Voted More Than Once 76. Wrzesnewskyj alleges that 7 electors in the seniors’ residence at Poll 426 voted more than once. The only evidence relied upon by Wrzesnewskyj in support of these allegations was the poll book and crossed-off voters list for Poll 426. The Application Judge reviewed the evidence and made findings that preclude this conclusion. Wrzesnewskyj has identified no palpable or overriding error in the findings of the Application Judge in respect of this issue. The - 26 -

evidence relied upon by Wrzesnewskyj is insufficient to overcome the presumption of regularity and establish that the irregularity, in fact, occurred, particularly where the irregularity alleged is the serious accusation of double voting. CEA, supra, ss. 483(b), 500(5) 77. Wrzesnewskyj produced no witness to support his improbable claim that any person voted more than once. In the absence of compelling evidence to the contrary, it must be presumed that election officials fulfilled their oath and carried out their duties in accordance with the Act. Unexplained recordings in a poll book where the author of the recordings was not called to testify can never be enough to overcome the presumption of regularity and justify serious findings of misconduct against both election officials and electors. Monaghan v. Joyce, 2004 NLSCTD 42 at para. 46 Cusimano, supra at paras. 101-102 78. There are any number of explanations, consistent with regularity and with persons not voting twice, for the appearance of elector names in the poll book when they were already on the voters list. For example, it may have been the case that the DRO or poll clerk did not notice the names on the voters list until after registration certificates had been completed and then crossed electors’ names off the voters list to reflect the fact that they had voted. This, indeed, is the simplest and most logical explanation for what transpired. Perhaps the least logical explanation is the one proffered by Wrzesnewskyj both before the Application Judge and in his appeal before this Court – that for reasons that have never been explained, 7 senior citizens with no known motive set out to vote twice in the Election, and were permitted to do so by election officials with no known motive to sanction or permit serious misconduct of this nature.

79. At best, Wrzesnewskyj has established that there may have been a discrepancy between the number of electors recorded and the number of ballots cast. Courts have consistently refused to find in circumstances such as these that an irregularity has been established or that the discrepancy, in itself, affected the results of an election.

Camsell v. Rabesca, [1987] N.W.T.R. 186 (S.C.) at paras. 16, 22 (“Camsell”) Flookes, supra at paras. 26, 33

iii. Wrzesnewskyj Failed To Establish That Two Electors Who Resided Outside of Etobicoke Centre Were Permitted To Vote 80. As stated above, Wrzesnewskyj alleged that two electors who voted at Poll 31 did not reside in Etobicoke Centre on Election Day. For the reasons set out above, it was - 27 -

demonstrated clearly in the proceedings before the Application Judge (including on the basis of land registry entries and a copy of the electors’ title deed) that such electors had completed the purchase of a home in Etobicoke Centre three days before the Election. The Application Judge reviewed and weighed such evidence and ultimately found that the two electors were ordinarily resident in Etobicoke Centre on Election Day. Wrzesnewskyj has identified no error, let alone a palpable or overriding error, in the findings of the Application Judge concerning this issue. Reasons for Decision, Joint Book of Documents, Tab 2, at para. 100 Housen, supra, at para. 23

iv. Wrzesnewskyj Failed To Establish That Electors at Polls 16, 21, 89 and 400 Were Permitted To Vote Without Being Vouched For

81. Wrzesnewskyj argues that the following votes should have been set aside by the Application Judge on the basis that the electors who cast them did so without being vouched for: (i) Poll 16 – seven votes; (ii) Poll 21 – six votes; (iii) Poll 89 – two votes; and (iv) Poll 400 – eight votes.

Polls 16 and 21 82. With respect to Poll 16, the Application Judge had the opportunity to review the various notations in the poll book and to consider the testimony of the DRO concerning that poll. The Application Judge found that the notations in the poll book could be consistent with oaths being taken that did not require a voucher or that the names of the voucher were simply not recorded. As a result of that finding the Application Judge concluded that Wrzesnewskyj had failed to establish any irregularity in respect of the votes now being appealed:

…On its face, the poll book would accurately reflect either a circumstance where the oath was with respect to the address of the elector, or where the oaths were taken from people vouching for the electors but the names of those vouching were not recorded. The applicant has not met the onus of demonstrating that these 6 entries are irregularities because the poll book is consistent with regularity – namely, that these 6 were address oaths that did not require vouching.

Reasons for Decision, Joint Book of Documents, Tab 2, at para. 138 83. Once again, Wrzesnewskyj has failed to identify any error in these findings, let alone a palpable and overriding error. In this instance, at least, the Application Judge applied properly the presumption of regularity and found that Wrzesnewskyj had failed to discharge his - 28 -

burden to establish the irregularity complained of. His reasoning, that where there is an explanation consistent with regularity, irregularity should not be presumed, is consistent with the approach taken by courts in other cases, including Beamish and Revel v. Gottfried. Revel, in fact, involved a situation virtually identical to that considered by the Application Judge. There, the names of 45 vouchers were not recorded but the court refused to reject the votes in question because there was no evidence of unqualified voters having voted or unqualified persons having vouched for voters. In the absence of such evidence, the court presumed that the election was carried out in accordance with the applicable statute. Beamish, supra at para. 41 Revel v. Gottfried, [1975] M.J. No. 256, at para. 13 (“Revel”) 84. Wrzesnewskyj argues that the fact that the poll clerk is required to record in the poll book the names of the voucher and the vouched for elector upon the taking of the respective oaths is further evidence that vouching did not occur. Wrzesnewskyj’s position is unfounded in fact and in law. This is so for several reasons. First, as has been stated numerous times, given the enormity of the task before Elections Canada on Election Day, it is inevitable that mistakes, such as failing to record the names of vouchers, will occur. Even if the names of vouchers may not have been recorded in a poll book, the conclusion cannot safely be reached (without more) that vouching did not, in fact, occur. Second, the poll clerk and DRO are two different officials and evidence that one (the poll clerk) may have failed in their duty to record a name does not constitute evidence that the other failed in their duty to properly administer oaths and to only provide ballots to qualified electors who proved their identity. Proof of an irregularity in respect of one matter does not rebut the presumption of regularity in respect of another. Third, in a number of the polling stations in question there were scrutineers present on Election Day. This renders it even more unlikely that multiple election officials in different polls would have abdicated their responsibilities by permitting people who were not qualified or entitled to vote to do so. There is no evidence from even a single scrutineer (or from anyone else for that matter) that conduct of this nature was engaged in. Factum of Wrzesnewskyj, paras. 90-91 Cusimano, supra, at paras. 78-79 Smith v. Catherwood [1925] B.C.J. No. 103 at para. 5 85. The Application Judge made a finding as to possible explanations for the appearance of the notations in the poll book. He then applied the presumption of regularity and, in light of the possible explanations, found that Wrzesnewskyj had failed to establish his - 29 -

allegations. The Application Judge made no palpable or overriding error in interpreting the poll book and was correct in applying the presumption of regularity. His decision in respect of these votes should be upheld. Given that the Application Judge refused to cast aside the six votes at Poll 21 now appealed by Wrzesnewskyj for the same reasons that he refused to cast aside the votes at Poll 16, the decision of the Application Judge in respect of the votes in Poll 21 should also stand. Reasons for Decision, Joint Book of Documents, Tab 2, at para. 142

Poll 400 and Poll 89 (Where Familial Relationships Indicated) 86. Wrzesnewskyj argues that two votes at each of Polls 400 and 89 should be discarded because the electors who cast those votes were not properly vouched for. The only evidence relied upon by Wrzesnewskyj in support of this allegation before the Application Judge was that the names of the vouchers were not recorded in the poll book, even though in all four instances a familial relationship was indicated and an elector, residing at the same address and who would fit the familial description for the elector recorded in the poll book, was found on the voters list in the applicable poll. Poll Book, Polling Division 89, Joint Book of Documents, Vol. 3, Tab 30, pp. 22-23 Reasons for Decision, Joint Book of Documents, Tab 2, at para. 128 Poll Book, Polling Division 400, Joint Book of Documents, Vol. 3, Tab 36, pp. 22-23 List of Electors, Polling Division 400, Joint Book of Documents, Vol. 3, Tab 38 87. The Application Judge did not find that the failure of the election officials in these polls to record the names of the vouchers established an irregularity. His decision in that regard was correct and should not be overturned on appeal. As described above, the presumption of regularity should be applied and, in the absence of compelling evidence to the contrary, the Court can and should proceed on the basis that election officials would not have permitted electors to vote if they had not been properly vouched for. For the same reasons, the Application Judge was correct in not finding that an irregularity had been established in respect of the two votes at Poll 400. His finding and reasoning in that regard extend equally to the two votes appealed at Poll 89, given their almost identical nature to the votes at Poll 400 (name not recorded but familial relationship indicated). Reasons for Decision, Joint Book of Documents, Tab 2, at para. 144 Poll 400 (Number of Vouchers)] 88. Finally, Wrzesnewskyj argues that there were, in fact, 16 persons who required vouchers at Poll 400 and that the poll book only records 10. He appeals findings of fact made by - 30 - the Application Judge that there were only 10 persons that required vouching and six other persons that required oaths for which vouchers were unnecessary. The Application Judge reviewed the poll book and found that six electors did not require vouchers in order to vote. As a result, the Application Judge allowed all 16 votes called into question by Wrzesnewskyj to stand. Again, there is no palpable or overriding error identified and the decision to uphold such votes should be affirmed. Moreover, for the reasons already stated, even if there were, in fact, six additional electors that required vouchers to vote, there was no evidence before the Application Judge to displace the presumption of regularity that such electors would not have been permitted to vote without first proving their identity in the proper manner. Reasons for Decision, Joint Book of Documents, Tab 2, at para. 144 89. In all of the above instances, the Application Judge either made a factual finding contrary to the “irregularity” alleged by Wrzesnewskyj, or applied the presumption of regularity and refused to find that irregularity had been established given the insufficiency of the evidence adduced by Wrzesnewskyj in his efforts to establish the irregularities complained of. In the instances of the former, Wrzesnewskyj offers not a single palpable or overriding error which would justify overturning the Application Judge’s findings of fact. In the instances of the latter, the Application Judge properly applied the presumption of regularity and correctly found that Wrzesnewskyj had failed to discharge his burden and establish his allegations of “irregularities” on a balance of probabilities. The findings of the Application Judge on the votes appealed should therefore be upheld.

C. The Application Judge Correctly Held That None of the Errors Established Are Irregularities Which Affected the Results

i. Overview 90. Under Section 524(1)(b) of the Act, for an election to be voided an applicant must establish both irregularities and that such irregularities affected the results of the election. Therefore, if an irregularity is incapable of affecting the results it would not be possible for an applicant to establish that such irregularity did, in fact, affect the results.

91. Opitz submits that the results of the Election would only have been affected in the circumstances alleged by Wrzesnewskyj if people who were not qualified or entitled to vote in Etobicoke Centre were, in fact, permitted to do so, or if a qualified voter was, in fact, permitted to vote more than once. A qualified voter is someone who, on Election Day, was eighteen years - 31 -

old, a Canadian citizen and ordinarily resident in Etobicoke Centre. Put differently, substance matters more than form. Voters who were qualified to vote, and entitled to vote, should not be disenfranchised after the fact because of clerical errors made by officials of Elections Canada that the voter had no knowledge or control over. Such an approach is consistent with the Act’s principles of enfranchisement and with the common law principle that provisions that would permit voters to be disenfranchised should be read restrictively. Beamish, supra, at para. 42 Giesbrecht et al. v. District of Chilliwack, [1982] B.C.J. No. 2414 at para. 11 92. Wrzesnewskyj, on the other hand, takes a vastly different approach to the meaning of the phrase, “affects the result”. He contends, for instance, that the provisions of the Act must be complied with precisely in order for a vote to count, regardless of whether the elector in question was, in fact, qualified and entitled to vote, and did, in fact, prove such qualification and entitlement to one or more election officials on the day of the election. For example, even if a voter were qualified and proved their identity to the DRO who provided them with a ballot, if a registration certificate was not completed properly for that voter, Wrzesnewskyj submits that the vote should not count. In essence, Wrzesnewskyj values form over substance, and seeks to hold both electors and election officials to a standard of perfection. Factum of Wrzesnewskyj at paras. 114, 115 93. The Application Judge took an approach consistent with the view of Opitz in refusing to cast aside the ballots that are the subject of Wrzesnewskyj’s appeal. That is, where he had evidence that the voter in question was, in fact, a qualified voter, he permitted the votes of the elector to stand, even if there may have been a technical non-compliance. For example, where electors who were on the voters list for the riding (so there was no question that they were qualified to vote) voted in a polling division in the riding in which they did not reside, the Application Judge permitted the votes to stand because they were qualified voters and there was no evidence that any of them had voted twice. He concluded that their votes had not affected the results of the Election. Opitz submits this is the correct approach to take in determining whether irregularities affected the results of the Election in a proceeding of this nature. Reasons for Decision, Joint Book of Documents, Tab 2, at paras. 97-99, 116, 123 94. Courts dealing with contested elections have consistently found that not all violations of election legislation provisions affect the results of an election. For example, courts have held that not all provisions of a statute are mandatory and that non-compliance with - 32 -

directory provisions should not disqualify votes, particularly where the irregularities in question were not caused by electors (as is the case in wrongly marking a ballot), but instead are caused by election officials. As stated in Flookes:

The irregularities complained about in this election for the most part were the result of breaches or failures to comply with the Act on the part of the election officials. They were not related to improper influencing of the votes, nor did they affect, in any way, the freely expressed will of the electors who cast their ballots… … It is not enough to show that there were irregularities in order to vitiate the election. It must also be shown that the irregularities were such that they might have affected the result…In my opinion, although there was evidence of irregularities and failure to comply strictly with the provisions of the Act, the irregularities related mainly to actions on the part of the election officials. They did not affect the votes of the electors who in all other respects were entitled to vote and to have their freely expressed will considered binding.

Flookes, supra, at paras. 50, 64, 82-84 95. Parliament cannot have intended that any non-compliance with the Act or procedures established by Elections Canada would result in the disqualification of votes. Such a result would fly in the face of the principle of enfranchisement now enshrined in section 3 of the Charter of Rights and Freedoms, and recognized by this Court in cases such as Haig v. Canada and Figueroa v. Attorney General of Canada. Moreover, an approach of that nature would give rise to untenable results, particularly where the errors in question are made by election officials rather than voters. Almost 100 years ago in Anderson v. Stewart the New Brunswick Court of Appeal rejected a “cumulative” approach to errors made in the conduct of an election, and adopted the following statement by Vice Chancellor Blake in the Monck Election case (which was later relied upon by courts in Flookes, among other cases):

It must also be borne in mind that if the Court lightly interferes with elections on account of errors of the officers employed in their conduct, a very large power may thus be placed in the hands of these men. That which arises from carelessness today may be from a corrupt motive tomorrow, and thus the officer is enabled, by some trivial act or omission, to serve some sinister purpose, and have an election avoided, and at the same time to run but little chance of the fraudulent intent being proved against him.

- 33 -

Anderson v. Stewart (1921), 49 N.B.R. 25, [1921] 62 D.L.R. 98 at p. 521 Haig v. Canada, [1993] 2 S.C.R. 995 at paras. 104-107 Figueroa v. Attorney General of Canada, [2003] 1 S.C.R. 912 at paras. 23-30 96. More recently, Justice Vertes of the Northwest Territories Supreme Court stated the following in Beamish v. Miltenberger: The Canadian Charter of Rights and Freedoms enshrines, in section 3, the right of every citizen to vote in federal and provincial/territorial elections. The exercise of that right by the citizenry leads to the election of the candidate who receives more votes than any other candidate. The common law’s emphasis on substantial compliance with appropriate electoral practice so that the true will of the people can be said to have been implemented accords with this right. This will is not to be defeated by mere technicalities.

Beamish, supra, at para. 33 97. If any non-compliance is properly viewed as an irregularity affecting the results of an election, then any number of elections at every election cycle become open to judicial challenges. As the Application Judge and several other courts have found, mistakes are inevitable in an election. It is simply not the case that any election will ever result in perfect compliance with the provisions of the Act. If perfection is what the courts demand, then a far higher volume of elections will be voided and re-run. Opitz submits that such a result would create uncertainty in government and undermine confidence in the electoral system rather than enhancing it. Reasons for Decision Joint Record of Documents, Tab 2, at paras. 4-6 Flookes, supra, at para. 79 Camsell, supra at para. 52 98. That Parliament expects some flexibility in applying the provisions of the Act is confirmed by the power given to the Chief Electoral Officer in section 17 of the Act to adapt the Act to correct for errors. This power has been used by the CEO to account for and adapt to situations where strict compliance with the Act would not be possible and would result in disenfranchisement. For example, in the 40th General Election, adaptations were made to allow electors who had been given erroneous instructions by election officials in casting special ballots to request a second ballot. It would be contrary to the principles of the Act and Parliament’s intent to interpret Part 20 of the Act in a manner that allows flexibility when errors committed by election officials are caught prior to or during the election but not afterwards. CEA, supra, s. 17(1) - 34 -

Report of the Chief Electoral Officer of Canada, on the 40th General Election, Exhibit B to the Affidavit of Michel Roussel, Joint Record of Documents, Vol. 4, Tab 51, at p. 56 99. Ultimately, whether a particular ‘irregularity’ affects the outcome of a given election will turn on the particular facts, circumstances and enabling legislation relating to the specific ‘irregularity’. In the particular circumstances of this case, Opitz submits that the Application Judge was correct in finding that the irregularities at issue did not affect the results of the Election.

ii. Electors Voting in a Different Polling Division Do Not Affect the Results 100. Wrzesnewskyj argues that the votes of the electors who did not reside in, but voted at, Poll 31 and the single elector who did not reside in, but voted at, Poll 19 should have been set aside by the Application Judge. The question to be asked is, had the irregularity not occurred, would their votes have still been counted in the results for Etobicoke Centre. Wrzesnewskyj’s position is effectively that, but for the irregularity, these electors would not have cast votes. Such a position ignores the reality of Election Day and the indicated desire of persons who have attempted to vote.

101. The irregularity in this instance is that electors were permitted to vote in a polling division where they did not reside. If the irregularity had not occurred in this case the electors in question would have been directed by an election official to the proper poll, as confirmed by the Returning Officer and the central poll supervisor for Poll 31. For 44 of the 68 electors at Poll 31, the proper poll was in the very same room at an adjacent table in Westmount Park Church. For 16 of the 68 electors, the proper poll was within 400 metres of Westmount Park Church. For the other 8 electors, the proper poll was still in Etobicoke Centre and would have been closer to their place of residence. Examination of Allan Sperling, Joint Book of Documents, Vol. 6, Tab 59, p. 95, Qs. 360-361 Transcript of J.J. Examination, Joint Book of Documents, Vol. 7, Tab 61, p. 12, Qs. 34-35 102. It is unreasonable to assume that electors who had already made the effort to come to the polling station to exercise their democratic right to vote would not, upon being told the location of their proper polling station, walk across the room, walk down the street or travel to a poll closer to their home in order to exercise that right. On the other hand, it is reasonable to conclude that, had there been no irregularity and the electors in question had been directed to their proper polling division, they would have gone to that poll and still have cast ballots for a candidate in Etobicoke Centre. The results of the Election would not have changed. - 35 -

103. An almost identical situation was considered in Flookes by Justice Medhurst who found that such votes should not be disqualified because the electors in that case were qualified to vote by residence in the electoral district and because there was no evidence that any of them voted twice at more than one poll:

… Some of these electors voted at a poll other than the one of their residence because of directions given by the election officials. There was no evidence that these electors were not entitled to vote or that they voted at more than one poll. Under these circumstances, I see no reason to declare that the votes of such persons who voted in this way to be invalid. Flookes, supra, at para. 64 104. Wrzesnewskyj attempts to distinguish the decision in Flookes from this case on the basis that the electors in Flookes required interpretive services and that there was evidence of a “flood” of voters. To accept this as a principled distinction, however, would disenfranchise some voters and not others based on arbitrary criteria (such as whether or not the polling station was busy at a particular time, or on the basis of their race or ability to speak English) and would undermine the principle of fair elections and enfranchising voters. Furthermore, in defending the distinct set of circumstances in Flookes, Wrzesnewskyj implicitly accepts that in certain situations it is proper to count the votes of electors even where they may not have technically complied with the provisions of the enfranchising legislation. Factum of Wrzesnewskyj at paras. 117-118 105. Wrzesnewskyj cites Nielsen in support of his position, but in that case the ultimate reason that the court would not uphold the votes in question was that, in order to have voted in the incorrect polling division, the elector and their voucher would both have sworn false oaths as to their residence. This falsehood was considered fatal to the votes at issue. Further, the court in Nielsen noted expressly that, in the Yukon, no voters list for the whole riding was maintained; rather, there are separate lists for each polling division. Therefore, voting in the wrong polling division was more akin to voting in a different riding rather than to voting in a different polling division in the same riding. Nielsen v. Simmons, (1957) 25 W.W.R. 68, at paras. 9, 21-22 106. Wrzesnewskyj cites measures taken by Elections Canada to inform electors of and direct them to their proper polling division, such as the issuance of Voter Identification Cards and the provision of poll keys to election officials. He argues that such measures are further - 36 -

evidence that the requirement to vote at the polling division in which the elector resides is mandatory and any deviation should be fatal to the vote cast. However, the opposite is true. Factum of Wrzesnewskyj at para. 107 107. The issuance of Voter Identification Cards and the distribution of poll keys is an acknowledgement by Elections Canada that electors cannot reasonably be expected to know their polling division. In practice, very few electors understand the distinctions between “electoral districts”, “polling divisions” and “polling places”, or realize that multiple polling divisions can be, and frequently are, located in the same room on election day. Instead, voters reasonably rely upon the knowledge of election officials for guidance and assistance in respect of the rules on Election Day, and a failure of an elections official to provide such assistance by directing a voter to the correct polling place or table should not disenfranchise a qualified elector. If an elector is not informed otherwise, they should be able to cast their ballots on the firm and understandable basis that by following the directions given to them by officials of Elections Canada on the day of the election they have done everything necessary to ensure that their ballots will, in fact, be counted. Once they have done so, further error, particularly one committed by an election official over whom the elector has no control, should not disqualify their votes.

108. Similar to Cusimano, the evidence before the court below suggested that in each case the elector did everything they needed to do to be entitled to vote. They came to a polling station and presented identification proving their identity and residence as was recorded on the registration certificates. That they were not directed to the proper polling station is a failure of the election official and not the elector. To disenfranchise the elector for something that is out of their control is unreasonable and inconsistent with the principles of enfranchisement at the core of the Act. Cusimano, supra, at para. 92 Anderson v. Stewart (1921), 49 N.B.R. 25 at p. 521 109. In further support of his argument that the requirement for electors to vote in their resident polling division is mandatory and that the failure to do so must be considered to have affected the result of the election, Wrzesnewskyj relies on section 111(c) of the Act, which prohibits persons from wilfully applying to be included on a list of electors for a polling division in which they are not ordinarily resident. The word “wilfully” is key. That Parliament has imported the notion of intent indicates that Parliament foresaw the scenario in which an elector would unintentionally apply to register to vote at polling division in which they did not reside. - 37 -

Unintentional acts are different in nature and in kind from wilful acts. They should be treated differently and have different consequences. There was no evidence before the lower court that any of the electors who voted in the wrong polling division did so intentionally. If anything, the prohibition cited by Wrzesnewskyj gives further credence to the submission that the requirement to vote at the correct polling division should be viewed as directory only unless there is intent. Factum of Wrzesnewskyj at para. 106 CEA, supra, s. 111(c) 110. Finally, Wrzesnewskyj argues that allowing electors to vote in polling divisions other than their own creates the possibility that such electors may have voted more than once (both in their home polling division and in the incorrect polling division). However, there is no evidence whatsoever in this case that any of the voters who voted in the wrong polling division did, in fact, vote more than once. If the purpose of assigning voters to a polling division is to prevent fraud arising from double or multiple voting, that purpose has been served. Absent evidence of electors voting more than once, other courts have refused to set aside ballots that were cast by persons who voted in the wrong polling division. Similarly, the Application Judge refused to cast aside votes when there was no evidence of double voting before him. This is the correct approach. Factum of Wrzesnewskyj at paras. 108-109 Reasons for Decision, Joint Book of Documents, Tab 2, at para. 99 Flookes, supra, at para. 64 iii. Qualified Electors Voting Without Completing a Registration Certificate Do Not Affect the Results 111. For the reasons already stated in the Opitz Appellant Factum, it cannot, and indeed must not be assumed that simply because particular registration certificates have gone missing months after the fact, those certificates were never completed. The available evidence stands firmly in the path of such an assumption. Moreover, even if the certificates were not completed, the failure to complete a registration certificate for a qualified elector did not affect the results of the election. Had the irregularity not occurred, the qualified elector would still have been permitted to and would have cast a ballot, the only difference being that a certificate would have been completed. Emphasis should be placed on the fact that elector has no control over the certificate and cannot compel a DRO or registration officer to complete the certificate for him or her. Furthermore, given that the Act directs the DRO or registration officer not to complete the certificate until they are satisfied that the elector has proven their identity and residence, the - 38 -

requirement to complete the certificate should be viewed as directory and should not be fatal to the elector’s vote if not complied with. Opitz Appellant Factum at paras. 108-115 112. Wrzesnewskyj argues that the votes in question should be disqualified on the basis that a failure to produce a registration certificate provides no assurance that the purported elector proved his or her identity in accordance with the Act, regardless of whether they were, in fact, qualified to vote. However, the burden is not on Opitz or anyone else to show that all electors proved their identity; rather, the burden rests with Wrzesnewskyj to show that electors without registration certificates were, in fact, permitted to vote without proving their identity. He adduced no such evidence. In the absence of evidence to the contrary, it should be assumed that election officials fulfilled their duties and insisted that voters identify themselves properly before being provided with ballots. This is the approach mandated by the presumption of regularity. Factum of Wrzesnewskyj at para. 114 Camsell, supra, as cited in Cusimano, supra, at para. 73 113. Here, there was evidence to satisfy the Application Judge that the single voter at Poll 31, the 7 voters at Poll 426, and the 2 voters at Poll 89 whom Wrzesnewskyj seeks to disenfranchise, were properly qualified because they were on the voters list in another poll or took an oath as to their qualifications. Opitz submits that, in the absence of evidence that any voters for whom no registration certificates were completed were not qualified, all such votes should be counted and therefore these 8 votes were properly upheld by the Application Judge. Reasons for Decision, Joint Book of Documents, Tab 2, at paras. 116, 123

iv. Failure to Record Vouchers is Not an Irregularity That Affects the Results 114. Wrzesnewskyj argues that the failure to record the identity of a voucher is fatal to the vote cast. He cites O’Brien, Nielsen and Blanchard in support of this proposition. However, none of these cases stands for such a proposition. O’Brien dealt with a situation where the elector was considered to be improperly vouched for, not where the elector was properly vouched for but the name of the voucher was not recorded. Similarly, the cited passages in Nielsen also deal with vouching by unqualified (not unrecorded) persons. Moreover, Nielsen clarifies that Blanchard only concerned voters who were not vouched for, rather than unrecorded vouchers. The passage cited by Wrzesnewskyj from Blanchard, when read in its full context, makes it clear that the vote in question was disqualified because the court found that the elector had not been vouched for in accordance with the applicable legislation. The court in Blanchard looked for - 39 -

further evidence that the elector in question may have been vouched for and pointed to the fact that no voucher was recorded as one of several reasons that they were unable to conclude that vouching occurred. It is clear that the vote was disqualified for lack of vouching not for proper vouching that was not recorded properly. Factum of Wrzesnewskyj at paras. 92-93 O’Brien v. Hamel (1990), 73 O.R. (2d) 87 (O.H.C.J). at paras. 26-28 Nielsen, supra, para. 19 Blanchard v. Cole, [1950] 4 D.L.R. 316 (N.S.C.A.) at paras. 30-31 115. If the failure to record vouchers (or any information for that matter) were an irregularity affecting the outcome it would lead to absurd and grossly unjust results. Nowhere does the Act make the ability of an elector to cast a ballot dependent upon the poll clerk first recording the identity of the elector (let alone the identity of the voucher). A review of section 162 of the Act makes it clear that the recording duties of the poll clerk are wholly independent of the requirements for an elector to vote, which are set out elsewhere in the Act. At most, the irregularity that has been proven is that a particular poll book was not properly filled out, not that improper or inadequate vouching occurred. Additionally, the elector has no access to or control over the poll book; therefore, the failure of an election official to make an entry in the poll book should not disenfranchise an elector who has otherwise done all required of him or her in order to vote. Finally, the failure to record the name of a voucher does not affect the outcome of the election because, if the irregularity had not occurred, the elector would still have been permitted to cast a ballot; the only difference would be that the name of the voucher would be recorded in the poll book. CEA, supra, s. 162 Flookes, supra, at para. 82

D. Wrzesnewskyj Cannot Establish That the Results of the Election Were Affected

116. For the reasons set out in the Opitz Appellant Factum, should this Court see fit to overturn the decisions of the Application Judge and cast aside the votes appealed by Wrzesnewskyj, Opitz submits that Wrzesnewskyj’s appeal must still be dismissed because Wrzesnewskyj will still be unable to establish, and tendered no evidence to establish, that the total number of votes set aside would actually affect the results of the Election. Opitz Appellant Factum at paras. 116-128 117. In particular, the “magic number” test used by the Application Judge was the incorrect test to apply and is inconsistent with the Act. If this Court were to find that all the votes - 40 -

appealed by Wrzesnewskyj should have been disqualified, then there will be as many as 164 total irregularities. However, none of these irregularities are attributable to actions of Opitz or his representatives; instead they are the result of random errors or omissions of officials of Elections Canada. Reasons for Decision, supra, at para. 1, Joint Record of Documents, Tab 2 118. Wrzesnewskyj has tendered no evidence to establish that the random errors of Elections Canada officials would have affected electors for one candidate more than another and there is no evidence as to how the electors in question voted because of the secrecy of the vote. Therefore, it cannot be said with any certainty that 164 votes were distributed in a manner that changed the results of the Election. At best, it can be said that 164 irregularities may have changed the results. That the results may have been affected falls short of Wrzesnewskyj establishing that they were, in fact, affected. Therefore, the requirements of section 524(1)(b) of the Act that must be met to declare the Election void have not been met, and will not have been met even if the votes at issue in Wrzesnewskyj’s appeal are cast aside.

PART IV – COSTS

119. Opitz seeks leave to address the issue of costs after the result of the Court is made known. PART V – ORDERS SOUGHT

120. Opitz requests that this Honourable Court dismiss the appeal of Wrzesnewskyj.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Toronto, Ontario this 4th day of July, 2012.

SIGNED BY

______Fasken Martineau DuMoulin LLP Davies Ward Phillips & Vineberg LLP

Of Counsel for the Appellant - 41 -

PART VI – TABLE OF AUTHORITIES

AUTHORITY PARAGRAPHS Cases Anderson v. Stewart (1921), 49 N.B.R. 25, [1921] 62 D.L.R. 98. (N.B.C.A.) 95, 108 Beamish v. Miltenberger, [1997] N.W.T.R. 160. (S.C.) 71, 83, 91, 96 Blanchard v. Cole [1950] 4 D.L.R. 316 (N.S.C.A) 114 Camsell v. Rabesca, [1987] N.W.T.R. 186 (S.C.). 79, 97, 112 Cusimano v. Toronto (City), 2011 ONSC 727, [2011] O.J. No. 5986. (ONSC) 71, 72, 77, 84, 108, 112 Figueroa v. Attorney General of Canada, [2003] 2 S.C.R. 995. (S.C.C.) 95 Flookes v. Shrake (1989), 70 Alta. L.R. (2d) 374. (ABQB) 71, 79, 94, 95, 97, 103, 104, 110, 115 Giesbrecht et al. v. District of Chilliwack,[1982] B.C.J. No. 2414 (B.C.S.C.) 91 Haig v. Canada (Chief Electoral Officer), [1993] 2 S.C.R. 995. (S.C.C.) 95 Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. (S.C.C.) 75, 80 Monaghan v. Joyce, 2004 NLSCTD 42, [2004] N.J. No. 76. (NLSCTD) 77 Nielsen v. Simmons (1957), 14 D.L.R. (2d) 446 (Y.T.T.C.). 105, 114 O’Brien v. Hamel (1990), 73 O.R. (2d) 87 (O.H.C.J). 114 Revel v. Gottfried, [1975] M.J. No. 256, (M.B.Q.B.). 83 Smith v. Catherwood, [1925] B.C.J. No. 103. 84 Other Authorities Report of the Chief Electoral Officer of Canada on the 41st General Election, 6 2011, Elections Canada - 42 -

PART VII – LEGISLATION