n;Employment and labour law
firm Harris & Company has
announced the addition of pen-
sions and benefits lawyer
Claude Marchessault to its Van-
couver office. Marchessault was
formerly with FMC and Blakes in
Toronto before establishing his
own firm in 1995. Called to the
bar in B.C. and Ontario,
Marchessault also taught pen-
sion law and pension plan gov-
ernance at Humber College in
Toronto, and was an adjunct pro-
fessor at the University of Vic-
toria Law School.
n;International law firm Norton
Rose Canada has announced that
David Lemieux has joined the
firm’s Montreal office as a
partner and member of the busi-
ness law group. Lemieux, called
to the Quebec bar in 1993 and
formerly with Montreal’s Fasken
Martineau Dumoulin, specializes
in the field of corporate finance
and restructuring.
n;Norton Rose Canada has also
announced the addition of six
lawyers focusing on mining and
China. New partners in the firm’s
Toronto office are David McIn-
tyre, formerly with Brazilian
mining giant Vale S.A., and the
M&A and corporate financing trio
of Robert K. Mason, Janet
Howard and Janet Lee. As well,
Chinese lawyer Yufei Luo has
joined the firm’s Ottawa office,
and Chinese lawyer Lei Huang
has joined in Beijing.
n;Business law firm Gowlings
has announced the addition of
partner Richard Gushue and
national business law preced-
ents lawyer Irene Ludwig to
its Calgary office. Gushue, who
was called to the Alberta bar in
1982 and was previously with
Miller Thompson, practises in
the area of energy, oil and gas.
Ludwig, formerly with Fraser
Milner Casgrain, practises in
corporate finance and M&A. At
Gowlings’ Toronto office, Mark
Paciocco, formerly with
Borden Ladner Gervais, has
been added as an associate
practising in the area of com-
petition, foreign investment,
marketing and civil litigation.
THE LAWYERS WEEKLY
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
Publisher
Ann McDonagh
Editor In Chief
Rob Kelly
Senior Editor
Shannon Kari
Focus Editor
Matthew Grace, LL.B.
Ottawa Bureau Chief
Cristin Schmitz
Art Director
Tammy Leung
Production Coordinator
Pauline Braithwaite
Art/Production Intern
Samantha Jackson
Correspondents
Luigi Benetton, Toronto
Arnold Ceballos, LL.B., Toronto
Thomas Claridge, Toronto
Christopher Guly, Ottawa
Jeremy Hainsworth, Vancouver
Geoff Kirbyson, Winnipeg
Luis Millan, Montreal
donalee Moulton, Halifax
® THE LAWYERS WEEKLY
VOL. 22, NO. 27 NE WS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
THE LAWYERS WEEKLY
Vol. 22, No. 27 NEWS FOR THE LEGAL PROFESSION December 6, 2002
THE LAWYERS WEEKLY
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
In the matter
of a contested
election
INTRODUCTION
While it may not be at the level of Bush v. Gore, the
Supreme Court of Canada has been asked to decide
what to do about a hotly contested vote in a
Toronto riding.
The court heard arguments on July 10 in a dispute
between Ted Opitz and Borys Wrzesnewskyj over
voting irregularities during the last federal election in
the riding of Etobicoke Centre.
The appeal was from an Ontario Superior Court
ruling this spring. Justice Thomas Lederer ruled that
the election was null and void because of inadvertent
procedural errors made by Elections Canada officials.
It is the first time the Supreme Court, which reserved
its decision, has been asked to interpret the
contested provisions in the Canada Elections Act.
— By Shannon Kari
FACTS
Opitz, the Conservative candidate, was declared the
winner by 26 votes on May 2, 2011, over Wrzesnewskyj,
the Liberal incumbent. The latter obtained a court
order to look at the ballots and other documents at
10 polling divisions. He challenged nearly 200 ballots,
alleging irregularities in the registration process and a
method known as “vouching” where an individual can
swear that another person is eligible to vote.
LOWER COURT
“The allegations made are of irregularities not of
corrupt or illegal practices,” stressed Justice Lederer
in his May 18 ruling in Wrzesnewskyj v. Canada
(Attorney General) [2012] O.J. No. 2308.
Elections Canada documents were a key part of the
evidence before Justice Lederer. He found problems with
27 ballots related to vouching — including no record of
the names of those who had vouched. Some individuals
appeared to vouch for more than one person, contrary to
the act. Another 52 votes were set aside for failures in
the registration process, such as no address listed for
voters. “It cannot be good enough to accept that
individuals who voted were qualified to do so by
registration, in the absence of the registration certificates,
in the absence of the poll books recording anyone who
registered by vouching and in the absence of the names
from the final list of electors,” Justice Lederer stated.
that anyone who voted was not entitled to vote. “The
decision made on this appeal will set the precedent for
all future contested elected cases,” Opitz states.
“Confidence in the electoral process and Parliament itself
is undermined if elections are too easily overturned,” he
adds. Under the act, it must be “shown” that the
irregularities affected the result, Opitz says, in a
discussion of the burden of proof. A court may demand
“clear, convincing and cogent evidence” to meet the
balance of probabilities test and show that the
“presumption of regularity” has been rebutted, he argues.
Wrzesnewskyj: The decision was based upon findings
of fact and should be accorded deference. The positions
of Opitz are “based on sophistry and double standards,”
he responds. Opitz is arguing that once a ballot has
been deposited “it is a good ballot and no one can
question whether it was cast by an unqualified or
un-entitled elector.” The presumption of regularity has
been transformed into a “conclusion of regularity” by
Opitz. In a cross-appeal Wrzesnewskyj says another 85
ballots should have been rejected and there is evidence
that in more than half of the polling stations the
“training of election officials was deficient.”
Chief Electoral Officer: Marc Mayrand, the chief
electoral officer, takes no position on the merits of the
appeal. Instead, he outlines the analysis the Supreme
Court should engage in to decide the case. “In
determining whether an irregularity affected the result,
the court should consider whether it can be satisfied, on
a balance of probabilities, that the votes in question were
cast by qualified electors.” There should be an
examination as to whether the irregularity caused “the
very harm at which the procedural safeguard is directed.”
Counsel
FOR OPITZ
FOR WRZESNEWSKYJ
ARGUMENTS
Optiz: The decision to declare the election null and void
was made even though there was “no direct evidence”
Thomas Barlow
Gavin Tighe
NOTEBOOK BY WORAKIT SIRIJINDA / DREAMSTIME.COM, SCC BY MELANIE SHIELDS / DREAMSTIME.COM
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