What is a contested election application?

TORONTO – It’s not often that a judge tosses out the results of an election in Canada. The last time it happened was in 1988 in the Toronto-area riding of York North.

In that election – the second of two consecutive Progressive Conservative majorities under Brian Mulroney – Liberal candidate Maurizio Bevilacqua lost to Michael O’Brien of the Tories.

A judicial recount confirmed O’Brien’s win by 99 votes. Bevilacqua appealed the recount and was declared the winner by 77 votes. O’Brien then filed a contested election application based on errors he said were made by Elections Canada.

The case went to a judge who ruled in favour of O’Brien – he agreed there were enough irregularities to declare the election void. He ordered a by-election, which Bevilacqua won.

Anyone who is eligible to vote in a riding can bring an application to challenge the results of an election using a contested election application, but only under certain circumstances and only after a candidate has been declared elected.

You can bring an application if you believe the person who won the election was not eligible to be a candidate or if you believe there were any irregularities, fraud, corrupt or illegal practices that affected the result. Of course, you have to present the evidence to back up your claim.

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The Chief Electoral Officer, along with the Attorney General, the local returning officer, the candidates in the election and the person bringing the application are all parties to a contested election proceeding. At the end of the hearing, the judge either dismisses the application or declares the election in that riding void, and orders a by-election.

However, the ruling can be appealed to the Supreme Court of Canada.

In this case, it was up to former Liberal MP Borys Wrzesnewskyj to prove within the balance of probabilities that enough voting irregularities took place for the results of the election to have been affected.

Wrzesnewskyj lost to Tory Ted Opitz by 26 votes, a result that was confirmed by a recount.

Wrzesnewskyj – who used to be an international election observer – said he decided to file the application in February after hearing complaints including a significant number of ineligible people voting in the riding and people voting without proper verification of their identity.

Canada’s chief elector officer – Marc Mayrand – argued that clerical errors should not be enough to overturn the results of an election.

The challenge anyone filing such an application faces is proving within the balance of probabilities that enough voting irregularities took place for the results of the election to have been affected. Wrzesnewskyj maintained that at least 181 votes were cast improperly.

The judge – Ontario Superior Court Justice Thomas Lederer – said there were “fundamental” requirements needed to retain confidence in the system, among them one that those who vote are qualified to do so.

“If we give up these foundations of our electoral system, we are risking a loss of confidence in our elections and in our government,” the judge said.

Optiz has eight days to decide whether to appeal the decision to the Supreme Court of Canada, which is obliged to hear the case as soon as possible.

Should Optiz not appeal or the ruling be upheld by the high court, the seat will be declared vacant and a by-election will be held.