FEDERAL COURT. -and -

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1 Court File No. T FEDERAL COURT :fir ~~1~~ ~ KEN FERANCE and PEGGY WALSH CRAIG Applicants -and - ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPPISSING-TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA Respondents MOTION RECORD OF THE RESPONDENT, JAY ASPIN May 18, 2012 CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Arthur Hamilton Tel: Fax: ahamilton@casselsbrock.com Ted Frankel Tel: Fax: tfrankel@casselsbrock.com Jason Beitchman Tel: Fax: jbeitchman@casselsbrock.com Solicitors for the Respondent, Jay Aspin

2 -3- AND TO: BORDEN LADNER GERVAIS LLP Barristers and Solicitors World Exchange Plaza Queen Street Ottawa, ON K1 P 1 J9 Barbara Mclsaac Tel: Fax: Nadia Effendi Tel: Fax: Solicitors for the Respondent, Marc Mayrand AND TO: DIANNE JAMES MALLORY, (RETURNING OFFICER FOR NIPPISSING-TIMISKAMING) Respondent AND TO: SCOTT EDWARD DALEY Respondent AND TO: RONA ECKERT Respondent AND TO: COWLING LAFLEUR HENDERSON LLP Barristers and Solicitors 160 Elgin Street Suite 2600 Ottawa, ON K1 P 1 C3 Guy Regimbald Tel: Fax: Solicitors for the Respondent, Anthony Rota

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4 Court File No. T FEDERAL COURT BETWEEN: KEN FERANCE AND PEGGY WALSH CRAIG Applicants ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPPISSING- TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA Respondents INDEX TAB DESCRIPTION 1 Notice of Motion, dated May 18, Notice of Application 3 Written Representations, dated May 18, 2012 A B List of Statutes and Regulations List of Authorities Legal"

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6 Court File No. T FEDERAL COURT BETWEEN: KEN FERANCE and PEGGY WALSH CRAIG Applicants - and - ATTORNEY GENERl~L OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPISSING-TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA Respondents NOTICE OF MOTION (Motion to s#rike pursuant to Section 531(1) of the Canada Elections Act) TAKE NOTICE THAT the respondent Jay Aspin will make a motion to the Court on a da#e to be fixed by the Prothonotary, at the Thomas D'Arcy McGee Building, 90 Sparks Street, 5th floor, Ottawa, Ontario K1A OH9. THE MOTION IS FOR: (a) An Order striking out the Notice of Application herein on the basis that: (i) it is frivolous and vexatious; and (ii) it is a nullity or otherwise an abuse of the process of the Court; (b) The costs of this motion; and

7 (c) Such further and other relief as this Honourable Court may deem just. THE GRO~JNDS FOR THE MOTION ARE: (d) The application is brought pursuant to section 524 of the Canada Elections Act, S.C. 2000, c. 9 (the "Act") which provides: 524(1) Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that (a) under section 65 the elected candidate was not eligible to be a candidate; or (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election. (e) Canada's 41St General Election (the "Election") was held on May 2, 2011; (~ The application herein is to contest the election in the electoral district of Nipissing-Timiskaming; (g) On May 25, 2011, the results of the election in the electoral district of Nipissing-Timiskaming were published in the Canada Gazette; (h) The Applicants filed the application herein on March 26, 2012; (i) The Notice of Application discloses that: (i) On or prior to Election Day, each of the Applicants Peggy Walsh Craig ("Ms. Craig") and Ken Ferance ("Mr. Ferance") supposedly received a telephone call from a caller purporting to be from Elections Canada, during which false information about a polling station was allegedly communicated;

8 (ii) Mr. Ferance knew that the information was incorrect as he had already voted at the polling station indicated on his Election card, and Ms. Craig found the message to be "confus[ing]"; (iii) Both Applicants successfully voted in the Election; Application does not plead that alleged fraud "affected the result" in Nrpissing-Timiskaming (j) The Notice of Application does not disclose: (i) The identity of a single elector in the electoral district of Nipissing-Timiskaming who did not vote in the Election as a result of "irregularities, fraud or corrupt or illegal practices"; or (ii) Any allegation that "irregularities, fraud or corrupt or illegal practices" affected the election result in the electoral district of Nipissing-Timiskaming; (k) Instead, the application makes generalized allegations about fraud and so-called "voter suppression" during the 41St General Election; (I) There are no material facts pleaded which would support a finding that "irregularities, fraud or corrupt or illegal practices...affected the result of the election" in Nipissing-Timiskaming; (m) The Applicants themselves both voted in the Election despite the alleged "irregularities, fraud or corrupt or illegal practices" to which they point, and of which they were aware by May 2, 2011;

9 (n) In lieu of evidence, the Applicants rely on "empirical analysis of voter turnout and trends" and claim that a so-called "voter suppression" campaign resulted in a decline in voter turnout "of an average of 3%". Yet this form of statistics-driven approach has previously been rejected by appellate jurisprudence; (o) Given that the pleading omits any facts which demonstrate that "irregularities, fraud or corrupt or illegal practices... affected the result of the election" in the electoral district of Nipissing-Timiskaming, there is nothing to adjudicate which could result in the Court granting a remedy pursuant to section 531(2) of the Act; In addition, the application is a nullity (p) The application herein was not filed in accordance with the time requirements set out in section 527 of the Act: An application based on a ground set out in paragraph 524(1)(b) must be filed within 30 days after the later of (a) the day on which the result of the contested election is published in the Canada Gazette, and (b) the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice. (q) Both Applicants knew of the occurrence of the alleged "irregularities, fraud or corrupt or illegal practices" on the day in which that conduct was allegedly perpetrated;

10 (r) Both Applicants therefore knew of the alleged "irregularities, fraud or corrupt or illegal practices" before the election result in Nipissing-Timiskaming was published in the Canada Gazette on May 25, X011; (s) As a result, the last date on which either Applicant could file an application on the facts as set out in the Notice of Application was June 24, 2011; (t) The failure to comply with section 527 of the Act is not a mere irregularity. The Applicants have not complied with an express requirement of the Act. As such, the application is rendered a nullity; (u) The application is also an abuse of process which ought to be struck accordingly; Application has no chance of success (v) The Applicants have initiated this application without pleading material facts directed at proving the necessary indicia of section 524(1)(b) of the Act, more than 10 months after the Election; (w) The application therefore fails to plead material facts which, if proven, could lead to nullification of the election result in Nipissing-Timiskaming; (x) The application is therefore clearly defective and improper as to be bereft of any possibility of success;

11 (y) An election represents the democratically expressed will of the electorate, should not lightly be overturned, and further, cannot be overturned where the application does not ever attempt to demonstrate that each element of section 524(1)(b) of the Act can be satisfied so as to obtain the remedy of nullification under section 531(2) of the Act ; (z) In all the circumstances, the appropriate remedy is to strike the application in its entirety; (aa) Section 531(1) of the Canada Elections Act, S.C. 2000, c. 9, as amended, which permits the Court to dismiss, at any time, a frivolous or vexatious application; (bb) Rule 221 of the FedeNal Courts Rules, SOR/98-106, as amended, which permits the Court to strike out a pleading, at any time, that is frivolous, vexatious or an abuse of process; and (cc) Such further and other grounds as the solicitors may advise. the motion: THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of (dd) The Notice of Application herein; and (ee) Such further and other evidence as the solicitors may advise and this Honourable Court may permit.

12 May 18, 2012 CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Arthur Hamilton LSUC #: 39474W Tel: Fax: Theodore Frankel LSUC #: 49784Q Tel: Fax: Solicitors for the Respondent, Jay Aspin TO: The Administrator Federal Court Thomas D'Arcy McGee Building 90 Sparks Street, 5th floor Ottawa ON K1A OH9 TO: Sack Goldblatt Mitchell LLP 30 Metcalfe Street Suite 500 Ottawa, Ontario K1 P 5L4 Mr. Steven Shrybman Tel: Fax: Lawyers for the Applicants

13 AND TO: Department of Justice Canada Room 1116, East Tower 284 Wellington Street Ottawa, Ontario K1A OH8 Mr. Robert MacKinnon Ms. Zoe Oxaal T.el: Fax: Lawyers for the Respondent, Attorney General of Canada AND TO: Borden Ladner Gervais LLP World Exchange Plaza 100 Queen Street, Suite 1100 Ottawa, Ontario K1P 1J9 Ms. Barbara Mclsaac Tel: Fax: bmcisaacnu bla.com Ms. Nadia Effendi Tel: Fax: neffendi(c~blg.com Lawyers for Respondent, Marc Mayrand AND TO: Cowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1 P 1 C3 Guy Regimbald Tel: Fax: guy.regimbald@gowlings.com Lawyers for the Respondent, Anthony Rota

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15 FEDERAL COURT OF CANADA Caart Frle No. T ~ ~~.J ~ ~ KEN FERANCE AND PEGGY WALSH CRAIG -and- Applicant ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER), DIANNE TAMES MALLORY (RETURNING OFFICER FOR NIPISSING- TTMISKAMING), )AY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA Respondents NOTICE OF APPLICATION TO THE RESPONDENT: A PROCEEDING HAS BEEN COMMENCED by the applicants. The relief claimed by the applicants appears on the following pages. THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicants. The applicants request that this application be heard at Ottawa, Ontario. IF YOU WISH TO OPPOSE PHIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicants' solicitor, or where the applicants are self-represented, on the applicants, WITffiN 10 DAYS after being served with this notice of application.

16 Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone ) or at any local office. IF YOU FAIL TO OPPOSE THIS A PPLICATTON,,YUDGMENT MAY B~ GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. Ottawa, March 26, 2012 Issued by: Q~~INA]L SIGNED BY CAROLINE IP~RbtIEit OItI~Ile1AI, S~~N~ PAR (Registry Officer AR - ~'E~IER ~EGISTRY OFFICER AGENT llu GREFFE Address of Local office: Thomas D'Arcy McGee Building 90 Sparks Street, 5th floor Ottawa, Ontario K1A OH9 TO: AND TO: AND TO: AND TO: Marc Mayrand Chief Electoral Officer Elections Canada Of#ice of the Chief 257 Slater Street Ottawa, Ontario K1A OM6 James Mallory Returning Officer Saskatoon-Rosetown-Biggar 257 Slater Street Ottawa, Ontario K1A OM6 Jay Arpin House of Commons Ottawa, Ontario K1A OA6 Anthony Rota c% Liberal Party National Office Liberal Party of Canada 81 Metcalfe Street, Suite 600 Ottawa, Ontario K 1 P 6M8

17 3 AND TO: AND TO: AND TO: Rona Eckert c/o NDP National. Office Lauxier West Ottawa, Ontario K1P SJ9 Scott Edward Daley Premier Rd North Bay, ON P1A 2J3 The Attorney General of Canada Department of Justice 284 Wellington Street Ottawa, ON KlA OH8

18 4 APPLICATION This is an application pursuant to s. 524(1)(b) of the Canada Elections Act S.C. 2000, c. 9 as amended (the"act"), to contest the results of Canada's 41S` General Election (the "Election") in electoral district of Nipissing-Timiskaming, on the grounds that there were irregularities, fraud or corrupt or illegal practices that affected the result of the election. 1. The Applicants wake application for: (a) an order pursuant to s. S31(2) annulling the results of the 41st General Election for the electoral district of Nipissing-Timiskaming; (b) (c} their costs of the application in any event of the cause; acid such further and other relief as this Honourable Court deems just. 2. The grounds for the application are: Overview (a) Canada's 415 General. Election (the "Election") was held on May 2, (b) The Applicant, Ken Ferance, resides in Mattawa, Ontario and is an elector who was eligible to vote in the electoral district of Nipissing-Timiskaming (the "riding") dwing the Election. (c) The Applicant, Peggy Walsh Craig, resides in North Bay and is an elector who was eligible to vote in the electoral district of Nipissing-Timiskaming (the "riding"} during the Election. (d) The results of the election for the riding were: CON Jay Aspin 15,495 LIB Anthony Rota 15,477 NDP Rona Eckert 8781 GRN Scott Edwazd Daley 2518

19 5 (e) During the course of the election a person or persons unknown engaged in fraudulent or corrupt or illegal activities and practices that affected the result of the election in the riding by attempting to prevent electors from voting in the election, or by inducing them to refrain from voting for a particular candidate. An Elector May Contest the Election in their electoral district (fl Section 524 (1) provides that: Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that: (b) there were irregulazities, fraud or corrupt or illegal practices that affected the result of the election. (g) Pursuant to Section 527, an application must based on a ground set out in paragraph 524(1)(b) must be filed within 30 days after the later of: (a) the day on which the result of the contested election is published in the Canada Gazette, and (b) the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice. (h) Section 531 provides that: (1) The court may at any tune dismiss an application if it considers it to be vexatious, frivolous or not made in good faith. (2) After hearing the application, the court may dismiss it if the grounds referred to in pazagxaph 524(1)(a) ar (b), as the case may be, are not established and, where they aze established, shall declare the election null and void or may annul the election, respectively.

20 C Evidence of ICen Ferrtnce (i) At some point during the election campaign, the Applicant's wife received a live telephone call from someone who indicated that they were calling on behalf of the Conservative Party of Canada, asking if they could rely on her support during the May 2, 2011 Election. The Applicant's wife unequivocally indicated to the caller that she would not be supporting the Conservative Party. (j) On May 2"d, 2011, the Applicant received a live telephone call from someone purporting to be from Elections Canada. The caller told the Applicant that his polling station had been moved to a location 19 km from the Applicant's home. The Applicant told the caller that this information was incorrect since he had just voted at the polling station indicated on his Election Card, which is across the street from the Applicant's residence and the polling station that the Applicant had voted at in previous elections. (k) At the time, the Applicant did not suspect that the call was not from Elections Canada and orily became aware through media coverage in early March 2012 that the call he received in May was likely to have been -fraudulent and part of an organized campaign to suppress the vote in his riding for certain candidates, and thereby affect the result of the Election. Evidence of Peggy Walsh Craig (1) A few weeks before the election, the Applicant, Peggy Walsh Craig, received a pre-recorded telephone call that asked if the Applicant would be voting for the

21 7 Conservative Party of Canada (the "Conservative Party").. The recording asked the Applicant to respond to this question by pressing certain numbers on her keypad. The Applicant pressed the number that indicated that she would not be supporting the Conservative Party during the Election. (m) Sometime during the week preceding the Election, the Applicant received a telephone ca11 from someone purporting to be from Elections Canada that contained apre-recorded message. "The message indicated that due to higher than anticipated voter turnout, the Applicant's polling station had been changed. (n) The Applicant was confused by this message. She voted in the advanced polls. (o) When the Applicant received the call, the Applicant did not suspect that the call was not from Elections Canada and only became aware through media coverage in late February 2012 that the call she received in May was likely to have been fraudulent and part of an organized campaign to suppress the vote in her riding for certain candidates, and thereby affect the result of the Election. (p) The Applicant made a complaint about the May call to Elections Canada on March 1, Evidence of Widespread Voter Suppression Activities Emerges in Late February 201 Z (~ On February 22, 2012, a detailed story was published in the National Yost describing an investigation by Elections Canada in response to having been "inundated with complaints about election day calls in Guelph, Ont., one of 18 ridings across the country where voters were targeted by harassing or deceptive

22 D phone messages in an apparent effort to discourage Liberal supporters from voting." (r) According to that account "In Guelph, a riding the Conservatives hoped to take from the Liberals, voters received recorded calls pretending to be from Elections Canada, telling them their polling stations had been moved. The ca11s led to a chaotic scene at one polling station, and likely led some voters to give up on voting." (s) These and other media accounts of the Elections Canada investigation were largely gleaned from documents that had been filed by Elections Canada in support of an application to obtain a production order of certain documents, recordings and other material in the possession of a company known as RackNine Inc., which was identifiied as being located in Ednnonton Alberta., on the grounds that production of these records would provide evidence of the offences which were alleged to have been committed by a person, or persons unknown. (t) In an information sworn by Allan Matthews, a public officer appointed or designated to enforce the Canada Elections Act, it was alleged that the following offences had been committed, namely that: That a person or persons unknown, on May 2, 2011, at or near the City of Guelph and elsewhere in the Province of Ontario, dzd wilfully prevent or endeavour to prevent an elector from voting in an election contrary to paragraph 281 (g) of the Act, and by so doing committed an offence contrary to pazagraph 491 (3) (d) of the Act That a person or persons unknown, on May 2, 2011, at or near the City of Guelph and elsewhere in the Province of Ontario, did, by

23 0 pretence or contrivance, induce or attempt to induce persons to vote or refrain from voting or to vote or refrain from voting for a particular candidate and by so doing committed an of~'ence contrary to paragraph 482 (b) of the Canada Elections Act, S.C. 2000, c. 9 as amended. (u) Those documents describe misleading automated telephone calls (described as "robocalls") to electors in Guelph which purported to be from Elections Canada and told votexs their polling stations had moved to a shopping mall in the city's downtown, when that was not the case. (v) Elections Canada identified the role of RackNine Inc. (which is not identified as a person alleged to have committed an offence), in providing services to persons associated with the Conservative Party campaign in Guelph, after an extensive digital chase to determine the source of the fraudulent telephone calls in question in light of the elaborate steps taken by the originators) of those messages to conceal her, his or their steps and identity. (w) Initial reports of alleged incidents of fraudulent calls misdirecting voters on electron day were focused on the Guelph riding, but reports soon emerged indicating that such activities were far more widespread. According to an account broadcast and published by the CBC on Feb 27, 2012 opposition parties had provided names of 45 ridings which received reports of false or misleading calls during the 2011 federal election. Since that rime the number of such ridings has grown to more than 80.

24 10 Common Patterns of Voter Suppression Activity Took Place in Several Electoral Districts Across Canada (x) Published reports of voter suppression activities in several electoral districts describe a common pattern of ca11s to electors who had indicated that they would not be supporting the Conservative Party candidate in their riding, misdirecting them to the wrong poll on election day. A report published in the Globe and Mail on Mazch 16, 20l 2 is typical of such accounts and related this pattern of activity: Most of the people contacted by The Globe say they gat calls during the campaign asking them how they planned to cast their ballot and indicated they didn't intend to vote Tory. Saint John resident Chazles Cochrane got a call from people identifying themselves as Conservatives two weeks before election day. Could they count on his vote? Definitely not, he replied. The Saturday before the election, he got anenglish-only robocall, purportedly from Elections Canada. "They told me my polling station was way into town," he said. "It was really strange because since 1984, my polling station has been just a mile away." (y) T'he other common voter suppression technique to be reported was of fraudulent calls by persons unknown purporting to be made on behalf of a particular candidate that were made at times, or in a manner that appeared calculated to offend the elector, and thereby discourage her or his support for that particular candidate.

25 11 ECections Canada Investigation Widens and Continues (z) On March 15, 2012, the Chief Electoral Officer of Canada issued a statement addressing allegations of wrongdoing during the 4l s` inter alia, stated that: General Election, which Following recent media reports of alleged ftaudulent telephone calls and other wrongdoing in the 41st general election of May 2, 2011, approximately 31,000 Canadians have contacted Elections Canada to share their concerns. Immediately following the 2011 general election, the Commissioner of Canada Elections deployed resources to investigate complaints of fraudulent or improper calls. Since then, over 700 Canadians from across the country have informed us of specific circumstances where they believe similaz wrongdoing took place. (aa) In his statement the Chief Electoral Officer also indicated that he intended to submit a report to Parliament in due course and in the meantime would welcome the opportunity to appear before the Parliamentazy Committee responsible for electoral matters to provide information on Election Canada's administrative and investigative processes. (bb) Notwithstanding the offer to appear before the Parliamentary Committee, it is the policy of Elections Canada to refuse comment on ongoing investigations, and with the exception of the Chief Electoral Officer's statement, and what can be gleaned from the documents filed with the Court in Alberta, no further details of the scope, status or timing of its investigations concerning alleged fraudulent activities during the 2011 election have been provided.

26 12 (cc) In spite of widespread accounts of voter suppression activities having taken place in electoral districts across the country, including Nipissing-Timiskaming, no one has stepped forward to take responsibility for the particular misleading or harassing calls in question, or to offer an explanation of how they occurred. To date, the identity of the persons or persons who Were responsible for originating and conveying such calls is unknown. (dd) Elections Canada does not have the authority to annul or otherwise set aside the result of an election that may have been affected by fraudulent or corrupt or illegal activity. That authority is exclusively accorded to a Court of competent authority, as defined under the Act, upon the application of an elector eligible to vote in the tiding in question or a candidate for office in that electoral district. Measuring the impacts of voter suppression techniques (ee) The effectiveness of voter suppression techniques, such as those that have been reported to have taken place during the election, can be estimated through empirical analysis of voter turnout and trends. This analysis suggests that techniques, such as calls misdirecting voters to the wrong poll, or harassing calls intended to discourage voters from supporting political opponents, resulted in a decline in voter turnout of an average of 3%. (f~ A 3% reduction in voter turnout is equivalent in a typical riding to 2,500 eligible voters that did not go to the polls.

27 13 Statutory Authority (a) Section 524(1)(b) of the Canada Elections Act must be interpreted in a manner consistent with s. 3 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, which provides that the right to vote is a fundamental democratic right guaranteed to Canadians. (b) (c) (d) (e) Canada Elections Act, S.C. 2000, c. 9, as amended. The Federal Courts Act, R.S.C. 1985, c. F-7, as amended. The Federal Courts Rules, SOR /98-106, as amended Such further and other grounds as cownsel may advise and this Honourable Court may accept. 3. This application will be supported by the following material: (a) (b) (c) (d) (e) The ai~`idavit of Peggy Walsh Craig, to be sworn The affidavit of Ken Ferance, to be sworn The affidavit of Louis Chartrand, to be sworn The affidavit of Anke Kessler, to be sworn The affidavit of Simon Rowland, to be sworn (~ Such further and other material as counsel may advise and this Honourable Court may accept.

28 14 ~~ l Date:. ~l. ~ r ~ j~,,,~ ~', ~,~ SACK GOLDB TT MITCHELL LLP Barristers and Solicitors Metcalfe Street Ottawa, Ontario K1P SL4 Tel: Fax: Steven Shrybman LSUC No.: 20774B Counsel for the Applicants

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31 Court File No. T FEDERAL COURT BETWEEN: KEN FERANCE and PEGGY WALSH CRAIG Applicants - and - ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPISSING-TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA Respondents WRITTEN REPRESENTATIONS OF THE MOVING PARTY, JAY ASPIN CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Arthur Hamilton LSUC #: 39474W Tel: Fax: ahamilton@casselsbrock.com Ted Frankel LSUC #: 49784Q Tel: Fax: tfrankel@casselsbrock.com Jason Beitchman LSUC #: Tel: Fax: jbeitchman@casselsbrock.com Lawyers for the Respondent, Jay Aspin

32 2 TO: SACK GOLDBLATT MITCHELL LLP 30 Metcalfe Street Suite 500 Ottawa, ON K1 P 5L4 Steven Shrybman Tel: Fax: Lawyers for the Applicants AND TO: Department of Justice Canada Room 1116, East Tower 284 Wellington Street Ottawa, Ontario K1A OH8 Mr. Robert MacKinnon Ms. Zoe Oxaal Tel: Fax: Lawyers for the Respondent, Attorney General of Canada AND TO: Borden Ladner Gervais LLP World Exchange Plaza 100 Queen Street, Suite 1100 Ottawa, Ontario K1P 1J9 Ms. Barbara Mclsaac/Ms. Nadia Effendi Tel: Fax: Lawyers for Respondent, Marc Mayrand AND TO: Cowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1 P 1 C3 Guy Regimbald Tel: Fax: Lawyers for the Respondent, Anthony Rota Court File No. T

33 3 FEDERAL COURT BETWEEN: KEN FERANCE and PEGGY WALSH CRAIG Applicants - and - ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPISSING-TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA Respondents WRITTEN REPRESENTATIONS OF THE MOVING PARTY, JAY ASPIN OVERVIEW 1. This application impugns the legitimacy of Canada's 41st Parliament and seeks to overturn the will of the electorate as expressed in the electoral district of Nipissing-Timiskaming. As the Canada Elections Act S.C. 2000, c. 9 (the "AcY') and existing case law make clear, any challenge to an election must demonstrate clear and convincing facts that could, if accepted, support a determination that the result of the election was affected to such an extent that it must be annulled. 2. This is, rightfully so, a high bar. To guard against abuse of the contestation provisions, the Act grants the Court the express power to dispose of election challenges which are frivolous and vexatious. Furthermore, the Act provides the Court with the authority to do so immediately where the application, on its face, is utterly devoid of merit

34 and has no reasonable chance of meeting the high onus required of an election challenge. 3. Jay Aspin, was lawfully elected as the Member of Canada's 41st Parliament for Nipissing-Timiskaming, Ontario, by tens of thousands of Canadians in that riding who exercised their right to vote in the 41st General Election. 4. Before a Court can annul that election, it must be satisfied, on clear and convincing evidence, that three requirements are met under paragraph 524(1)(b) and subsection 531(2) of the Act namely that : (i) there was an irregularity, fraud, corrupt or illegal practice; (ii) that affected the result of the election; and (iii) that the number of votes affected was greater than the margin of victory. 5. Upon review of the applicants' materials in this case, it is clearly frivolous and vexatious. The applicants have failed to plead any material facts that could lead a Court to conclude that the result of the election was affected at all, and certainly not affected to such an extent that it must be annulled. Indeed, the allegations pleaded are nothing more than unsupported speculation and conjecture intended to undermine the democratic will of the electorate and sew confusion amongst the Canadian public. 6. Even taking the applicants' case at its highest, assuming that everything in the notice of application is true, the application is bound to fail. The applicants, Mr. Ferance and Ms. Craig, both voted in the 41st election. The irregularity or improper practice alleged did not prevent either applicant from doing so, and therefore they, as individuals, do not support an allegation that an irregular or improper practice affected the result.

35 y~ 7. More than that, the application fails to identify even one single elector who was affected by alleged irregularities or conduct. Because the application is devoid of any such allegation or material fact to support it, the applicants cannot possibly make out their case or establish the necessary elements required to annul the election pursuant to sections 524(1)(b) and 531(2) of the Act. This Honourable Court must strike the application as frivolous and vexatious or otherwise as an abuse of process, pursuant to the power vested in the Court by Parliament in section 531(1). 8. The application is further frivolous and vexatious because it does not comply with the basic requirements for an election challenge under section 527. It is imperative, pursuant to section 527 of the Act, that an application of this kind be filed within 30 days after the later of (a) the day on which the results of the contested election are published; and (b) the day on which the applicant first knew of the occurrence of the irregularity or improper practice. 9. The applicants have admitted in their materials that they knew of the impugned conduct within 30 days of the day on which the results were published, and yet they delayed in bringing this application for 10 months. Permitting this application to proceed would ignore Parliament's directive in section 527 that it is a statutory pre-condition to proceed with all due dispatch. There are clear public interest considerations requiring applicants to contest an election with dispatch, and Mr. Ferance and Ms. Craig's application further ignore these public interest considerations.

36 0 10. For these reasons, detailed below, this application ought to be summarily dismissed pursuant to section 531(1) of the Act, without delay, on the basis that it is frivolous and vexatious. PARTI -FACTS 11. Canada's 41St General Election (the "Election") was held on May 2, The application herein is to contest the election in the electoral district of Nipissing-Timiskaming, but is brought belatedly, more than 9 months after the election result for Nipissing-Timiskaming was certified by the Chief Electoral Officer. 13. Specifically, the results of the election in the electoral district of Nipissing-Timiskaming were published in the Canada Gazette on May 25, Mr. Ferance and Ms. Craig, delayed their filing of the within application until March 26, 2012, notwithstanding the clear requirements of the Act that any contested election complaint must be initiated by application without delay. 15. The notice of application, on its face, discloses that: (a) On or prior to election day, May 2, 2011 ("Election Day") Ms. Craig and Ms. Ferance supposedly received a telephone call from a caller purporting to be from Elections Canada, during which false information about a polling station was communicated; (b) Mr. Ferance knew immediately that the information was incorrect, as he had already voted at the polling station indicated on his election card;

37 7 (c) Ms. Craig also knew the information was irregular, and therefore voted in the advanced polls; and (d) Both Ms. Craig and Mr. Ferance successfully voted in the Election. 16. Both Mr. Ferance and Ms. Craig were therefore aware of conduct on Election Day which put both on notice and possessed them with knowledge that incorrect information was being presented to voters in the electoral district of Nipissing-Timiskaming. 17. Both also plead the results of the election in Nipissing-Timiskaming, where the candidate for the Conservative Party of Canada, Jay Aspin, obtained the most votes of any candidate, and 18 votes more than the second place candidate. As a result, both Mr. Ferance and Ms. Craig were fully aware by May 25, 2011 that the result of the election in Nipissing-Timiskaming was extremely close the margin of victory being only 18 votes and that information which both of them assessed as misleading and inaccurate about the locations of polling stations in Nipissing-Timiskaming had been disseminated in that specific electoral district. 18. Nowhere in the notice of application do either Mr. Ferance or Ms. Craig attempt to even plead any material fact, specific to the election in the electoral district of Nipissing-Timiskaming, demonstrating that there were irregularities, fraud or corrupt or illegal practices that affected the result of the election in Nipissing-Timiskaming. 19. In fact, between paragraphs 2(q) and 2(ff) of the notice of application, the electoral district of Nipissing-Timiskaming is identified only once (in Paragraph 2(cc)), and that reference refers only to "...widespread accounts of voter suppression..." ("widespread"

38 :, suggesting across Canada, not the electoral district of Nipissing-Timiskaming), but does not attempt to attach such supposed events to material facts that demonstrate the result of the election in Nipissing-Timiskaming was affected by such conduct. 20. Quite to the contrary, the notice of application, taken at its highest, in explaining the "suppression" experienced by Mr. Ferance and Ms. Craig, demonstrates that any such efforts were not successful in preventing either of them from exercising their franchise to vote. The notice of application makes no further allegations about any identified voter in Nipissing-Timiskaming who was not able to exercise her or his franchise to vote, and accordingly, there are no material facts pleaded demonstrating that the result of the election in Nipissing-Timiskaming was affected by irregularities, fraud or corrupt or illegal practices. 21. Mr. Ferance and Ms. Craig instead rely on "empirical analysis of voter turnout and trends" and claim that a so-called "voter suppression" campaign resulted in a decline in voter turnout "of an average of 3%". This type of conjecture does not constitute a pleading of material facts. PART II - ISSUES 22. The issues on this motion are as follows: (a) What procedural rules govern this respondent's motion to dismiss? (b) Should the application be struck out on the basis that it is vexatious, frivolous or not made in good faith? (c) Is the application a nullity or otherwise an abuse of process?

39 0 PART III - ARGUMENT ISSUE #1: THE MOTION TO DISMISS IS GOVERNED BY SECTION 531 OF THE ACT (i) Canada Elections Act sets out procedure for early disposition of application 23. In order to successfully contest an election, an elector must establish grounds under section 524 of the Act which provides that: 524(1) Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that (a) under section 65 the elected candidate was not eligible to be a candidate; or (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election. 24. If the requirements of section 524 are met, section 531(2) provides remedial powers to the Court: (2) After hearing the application, the court may dismiss it if the grounds referred to in paragraph 524(1)(a) or (b), as the case may be, are not established and, where they are established, shall declare the election null and void or may annul the election, respectively. 25. The Court may also dispose of an application at an early stage, particularly where it is devoid of merit. Section 531 of the Act provides that: (1) The court may at any time dismiss an application if it considers it to be vexatious, frivolous or not made in good faith. (ii) Early disposition of application where frivolous or vexatious 26. As section 531 of the Act provides authority to dismiss an application at any time if it considers it to be frivolous or vexatious, it is necessary to give meaning to those terms.

40 The Federal Court has considered the meaning of "scandalous, frivolous or vexatious" in the context of Rule 221(1)(c). Generally speaking, the Court will grant a remedy in frivolous and vexatious cases where: (a) (b) (c) the statement of claim is so deficient such that the defendant cannot make full answer and defence; the statement of claim did not sufficiently reveal the facts upon which the cause of action is based; or where a claim was so clearly futile that it has no chance of success. 28. As stated by Prothonotary Hargrave in Ceminchuk v. Canada A scandalous, vexatious or frivolous action may not only be one in which the claimant can present no rational argument, based upon the evidence or law, in support of the claim, but also may be an action in which the pleadings are so deficient in factual material that the defendant cannot know how to answer, and a court will be unable to regulate the proceedings. It is an action without reasonable cause, which will not lead to a practical result. Reference Ceminchuk v. Canada, 1995 CarswellNat 2563 at pars. 10 [Ceminchuk] 29. In striking the claim on the basis that it was frivolous and vexatious, as well as an abuse of process, Hargrave concluded that the statement of claim was "largely made up of bare assertions and conclusions." Reference Ceminchuk, supra at para. 19 See also Simon v. Canada, 2011 FCA 6 at para In Kisikawpimootewin v. Canada the Federal Court struck a statement of claim on the grounds that it was "vexatious and embarrassing" and that it "disclose[d] no cause of action, reasonable or otherwise." In that case, the Statement of Claim was deficient to the extent that there was "very little beyond bare assertions and bald statements against the

41 11 unidentified and unspecified Defendant(s)...The court [was] left with a proceeding so ill-defined that it is unable to discern an argument, or identify any specific material facts." Reference Kisikawpimootewin vcanada, 2004 FC 1426 at paras. 9 and 13 (iii) Basic requirement to plead material facts 31. It is submitted that, at a minimum, the applicants must plead material facts in support of the following three propositions: (a) That there was conduct which amounted to "[an] irregularity, fraud, corrupt practice or illegal practice"; (b) That the alleged conduct "affected the result of the election" in the electoral district of Nipissing-Timiskaming; and (c) That the "affect" on the election was material in the sense that the election result would have been different but for the alleged conduct. 32. When an application contesting an election does not, on its face, disclose sufficient grounds to have the election set aside, the Court ought to dismiss the application. The question of sufficiency, in this case, comes down to whether the number of voters who allegedly had their votes suppressed (and who were inclined towards a candidate other than the victor) equalled or exceeded 18 ie. the margin by which the Respondent Jay Aspin was elected. Reference Gross v. Wiebe, [1976] 5 W.W.R. 394 (Bask. C.A.) at pars. 15

42 In Gross v. Wiebe (which considered a petition under the Saskatchewan Controverted Elections Act, 1971), the Court, assuming the allegations to be true, found that the petition would only establish 12 voters who were not entitled to vote. As the margin of victory was 15 votes, the failure to plead material facts about a sufficient number of affected voters was fatal to the petition. Reference Wiebe, ibid. at pars The Saskatchewan Court of Appeal dismissed the petition as it "[did] not on its face disclose sufficient grounds and facts to have the election set aside..." Reference Wiebe, ibid. at para. 19 (iv) On motion to dismiss, Court will accept allegations as true 35. On a motion to dismiss on a question of law, the Court will presume the facts asserted by the applicant to be true. 36. The Court will, however, make an exception for allegations that are based upon assumptions and speculation or that are incapable of being proven. The application herein is replete with such assertions. Still, taken at their highest, the material facts as pleaded cannot result in the annulment of the election result. The applicants themselves voted in the Election despite the alleged conduct. The application does not identify a single voter in Nipissing-Timiskaming who did not vote as a result of alleged "voter suppression, nor does it suggest that a sufficient number of voters were interfered with such as to affect the election result in Nipissing-Timiskaming. The pleading clearly fails to disclose sufficient grounds to have the election set aside.

43 13 ISSUE #2: THE APPLICATION IS FRIVOLOUS AND VEXATIOUS (i) Courts will not lightly overturn the democratic will of the electorate 37. It is only in the clearest of cases that the results of an election can and will be declared invalid. Any lower standard would undermine the fundamental electoral rights of every qualified voter who cast a ballot. 38. Courts have given effect to this principle, stating that the democratic will of the electorate, as expressed by their votes in the election, should not be lightly overturned. Reference Raeburn v. Lorje, 2000 SKQB 81 at pars. 43 Reference Cusimano v. Toronto (City), 2011 ONSC 7271 (Div. Ct.) at para. 111 (Cusimano] 39. This principle is further reflected in the provisions of the Act that permit an elector to contest an election and grant the Court the power to annul an election. Subsection 524(1) of the Act, along with the remedial powers of the Court expressed in 531(1) establish a requirement that the Court may only annul an election in exceptional and the clearest of cases. 40. As stated above, these two sections demonstrate that there are three distinct requirements that must be established before the Court can annul an election, as it is requested to do on this application. 41. Paragraph 524(1)(b) contains two of these three requirements. First, there must be evidence of irregularities, fraud or corrupt or illegal practices that occurred in the election. Second, such irregularities or practice must have affected the result of the election.

44 Subsection 531(2) contains the third requirement, and arises pursuant to the Court's remedial powers if the requirements referred to in paragraph 524(1)(b) are established. In such a case, the Court "may annul the election." Significantly, it is not imperative that the Court annul the election if the conditions in paragraph 524(1)(b) are met. Rather, the use of the permissive "may" indicates a discretion with the Court to decline to set aside an election result in appropriate circumstances. Reference Interpretation Act, RSC 198 c.1-21, section 11 (ii) The court cannot annul an election where there is no clear and convincing evidence a plurality of the vote has been affected 43. There is no ambiguity in the jurisprudence. A court is only to exercise its discretion to set aside election results in the clearest of cases based on cogent and convincing facts. It must be established that the number of votes affected by the irregularity or improper practice exceeds the plurality of votes cast. 44. This is not a new or controversial proposition. In Morgan v. Simpson, Lord Denning considered whether the results of a particular election ought to be voided. Surveying the history of the law of elections, from common law to statutory law, with reference to authority dating back to 1789 and 1825, Lord Denning noted the ancient proposition that it is only in cases where the invalid votes would have given a different result that the election would be set aside. Reference Morgan v. Simpson, [1974] 3 All ER 722 at , citing Anthony v. Seger (1789) 1 Hag Con 9 at 13, Faulkner v. Eiger (1825) 4 B & C The same proposition has been routinely cited in more recent Canadian jurisprudence. For example, in O'Brien v. Hamel, the Ontario High Court considered a

45 15 challenge under the Act to election results arising from irregularities in the registration of rural voters. The Court, in considering the circumstances in which it may annul the results of that election, stated that "the cases have consistently held that if the number of irregular votes exceeds the plurality of votes cast, the election cannot stand." Reference O'Brien v. Hamel, [1990] 73 O.R. (2d) 87 at p Similarly, the Nova Scotia Court of Appeal has confirmed that on judicial review of an election, it is only once the Court comes to the conclusion that it will declare an election void where an irregularity or improper practices affected an amount of votes equal to or greater than the margin of the majority claimed. Reference Blanchard v. Cole, [1950] 4 D.L.R. 316 (N.S. C.A.), at p The Saskatchewan Court of Appeal has affirmed that it will proceed with great caution when reviewing an impugned election, and will only interfere with the result where there is "undoubted authority" to do so: In acting in cases of election petitions, the Court is not exercising its ordinary civil or criminal jurisdiction. The Assembly is the guardian of its own prerogatives and privileges, and the Courts have nothing to do with questions affecting its membership except in so far as they have been specially designated by law to act in such matters: In re Prince Albert City Provincial Election; Strachan v. Lamont (1906) 3 W. L.R Therefore, the Courts will always approach questions concerning their jurisdiction over election contests with great caution, as being unwilling to interfere without undoubted authority. [emphasis ours] Reference Lamb v. McLeod, [1931] S.J. No. 59, [1932] 1 W.W.R. 206 (Bask. C.A.) at para. 5; see also Miller v. Boxall, 2006 SKQB 403 at pars In Di Biase v. Vaughan (City) the applicant sought to invalidate a municipal election on several grounds for which, in the Court's view, there was clearly no evidentiary

46 16 support. The applicant raised problems concerning paper jams with ballots, without being able to prove loss of votes, and issues of voter identification problems at the ballot box without providing any more than hearsay evidence that such problems had occurred in more than one case. Reference Di Biase v. Vaughan (City), 2007 CarswellOnt 8775 (C.A.) affirming 2007 CarswellOnt 5876 (S.C.J.) at pars The Court determined that "the applicant's conduct in proceeding on them in order to fulfill his aim of invalidating the election was close to frivolous...there was no evidence of any voter having been deprived of the vote..." and found that, save for errors in counting-machine programming, it could "find no breach or inconsistency in the conduct of the election which is inconsistent with the principles of the Act or which affected the result". Reference Di Biase, ibid. at para. 66 (iii) The Onus of Proof is on the Applicant to Establish that the Result of the Election was Affected 50. It is trite law that the applicant bears the onus of proving that the election result ought to be set aside. Given the requirement to provide clear evidence of "irregularities, fraud or corrupt or illegal practices", and the importance of ensuring that the will of the electorate is not lightly interfered with, the onus of proof is necessarily high. Reference Cusimano, supra at pars Indeed, where an applicant alleges a fraudulent or corrupt practice, the standard of proof that the applicant is required to meet is proof beyond a reasonable doubt. In Friesen v. Hammell, the Court described the reason for this high bar:

47 17 The case before me concerns the integrity of a provincial election... Allegations of fraudulent conduct are made against the then Premier and the Minister of Finance going to the very root of their fitness to hold public office. The consequences to the Respondents are that they may lose their jobs and to the voters in the three ridings that their expressed choice at the polls may be set aside. This is not a task to be undertaken on an evaluation of probabilities. Having considered all the cases in the context of the [provincial] legislation and the issues before me, I am of the view that the standard of proof must be "beyond a reasonable doubt". Friesen v. Hammell, 2000 CarswellBC 1620 at pars This is consistent with the requirement of clear and cogent evidence established by the long line of contested election cases referred to above. Courts must not lightly interfere with the results of an election. Given the seriousness of the allegations, there must be no doubt that the number of votes affected by the alleged activity affected the result to such an extent that it exceeds the plurality of votes cast. Only if these conditions are met can the court annul an election pursuant to subsection 532(1). 53. There is nothing in this application that remotely rises to proof beyond a reasonable doubt. As stated above, the applicants have failed to put forward even one instance where an elector was denied the right to exercise her or his franchise. Instead, rather than provide the material facts necessary to sustain a successful election challenge, the application relies upon generalized allegations of "voter suppression", which are not even particularized with respect to the electoral district of Nipissing-Timiskaming. 54. There are no material facts pleaded which would support a finding that "irregularities, fraud or corrupt or illegal practices... affected the result of the election" in Nipissing-Timiskaming. The applicants themselves both voted in the Election despite the alleged "irregularities, fraud or corrupt or illegal practices" to which they point.

48 55. In lieu of factual accounts of actual electors who failed to vote, the applicants rely on "empirical analysis of voter turnout and trends" and claim that a so-called "voter suppression" campaign resulted in a decline in voter turnout "of an average of 3%". This form of statistics-driven approach was specifically rejected by the Divisional Court in Cusimano wherein it was stated that: Second, and regardless of the availability of any presumption, I am of the view that the application judge was obliged to do more than simply apply an arithmetic formula to decide whether or not the irregularities affected the results of the election. She was obliged, instead, to undertake an examination of the evidence before her in an effort to see whether or not she could ascertain the true effect of the irregularities. Reference Cusimano, supra at para Given that the pleading omits any facts which demonstrate that "irregularities, fraud or corrupt or illegal practices... affected the result of the election" in the electoral district of Nipissing-Timiskaming, there is nothing to adjudicate which could result in the Court granting a remedy pursuant to section 531(2) of the Act. ISSUE #3: THE APPLICATION IS A NULLITY OR ABUSE OF PROCESS The requirement of urgency on an application to contest election results 57. An application to contest an election must be brought within the time limits imposed by section 527 of the Act which provides that: An application based on a ground set out in paragraph 524(1)(b) must be filed within 30 days after the later of (a) the day on which the result of the contested election is published in the Canada Gazette, and (b) the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice.

49 The Act provides tight timelines for contesting an election and for adjudication of section 524 applications. There are strong public interest reasons underlying these timelines. Inherent in every election challenge is the suggestion that a fundamental democratic principle has been violated or that the democratic will of the electorate has been perverted. Election challenges must therefore be resolved quickly so as to ensure the smooth functioning of our democracy. Reference Cusimano, supra at pars The 30-day time limit prescribed by section 527 of the Act is mandatory and cannot be varied. Section 527 provides that every section 524(1)(b) application "must be filed within 30 days" of the fraud, etc. complained of. 60. The Act does not provide for an extension of time beyond 30 days, and a Court has no power to extend time for bringing an application after the expiration of time prescribed by Act. Reference Money v. Rankin, [1909] 18 O.L.R. 661 at paras. 7 and Context and purpose are essential tools of statutory interpretation. The established approach to statutory interpretation was recently reiterated by lacobucci J. in Bell ExpressVu Ltd. Partnership v. R: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Reference Bell ExpressVu Ltd. Partnership v. R, [2002] 2 SCR 559, at pars. 26

50 The overall context and purpose of the Act is for election challenges to be disposed of with urgency and dispatch. This is evident from numerous provisions in the Act: (a) Section 527 which requires an application to be brought within 30 days; (b) Section 532(1) which requires an appeal of an application decision to be brought within eight days after the decision was given; and (c) Section 532(2) which requires the Supreme Court of Canada to hear any appeal "without delay." 63. Section 527 of the Act provides for a short time frame within which an elector must make an application to seek determination of an irregularity, fraud, corrupt practice or illegal practice such as to put the result of an election in doubt. It is necessary, in the public interest, that such a matter be resolved as expeditiously as possible so that electors can know who properly represents them in Parliament, and the successful candidate can go about the business of performing his or her duties as a Member of Parliament. Reference Hilton v. Norgaard (1992), 11 MPLR (2d) 259 (BCSC), at paras This application further does not give rise to the "discoverability" component of section 527(b) of the Act. In this application, both Mr. Ferance and Ms. Craig state in the notice of application that they were aware on Election day that the impugned calls purporting to identify changes in polling locations were wrong, and that the information in that respect was being disseminated in Nipissing-Timiskaming. As such, the last day an

51 21 application by either Mr. Ferance and Ms. Craig could properly have been issued was June 25, Both applicants missed that deadline by more than eight full months. 65. This is not a procedural defect that can be cured through an amendment. The applicants failed to comply with a statutory requirement such that the application should have never been issued. In these circumstances, the proceeding must be considered a nullity as it affects a "matter of substance" rather than a mere "irregularity". Reference Eight-O Services Ltd. v. Pawlo Investments Ltd., 1981 CarswellOnt 354 at pars Applying the purposive approach described above, and considering the grammatical and ordinary sense of the words used in s. 527, it is a necessary conclusion that the objective of the provision is to provide for an expeditious resolution of the issue of whether an election is tainted. It would therefore be inconsistent with that purpose if an elector could be permitted to wait as long as the applicants have in this matter to make their case. Reference Mastroguiseppe v. Vaughan (City) (2008), 61 MPLR (4tn) 138 (Ont SCJ), at paras. 54, 57-60

52 22 PART IV -ORDER SOUGHT 67. The moving party therefore respectfully requests that this Honourable Court dismiss the application pursuant to section 531(1) of the Act on the basis that it is frivolous and vexatious. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 1$,~h d~/~6f I~`ay, 20 CASSELS B~K ~ BLACl~V~LL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Arthur Hamilton Tel: Fax: ahamilton@casselsbrock.com Ted Frankel Tel: Fax: tfrankel@casselsbrock.com Jason Beitchman Tel: Fax: jbeitchman@casselsbrock.com Lawyers for the Respondent, Jay Aspin

53 ~ ~ ~

54 SCHEDULE A STATUTES OR REGULATIONS Return of Members elected at the 41St general election (2011) C Gaz I (Canada Elections Act). 2. Canada Elections Act, S.C. 2000, c Interpretation Act, R.S.C. 198 c.1-21, section 11

55

56 EXTRA Vol. 145, No. 8 nn EDITION SPECIALE Vol. 145, n 8 Canada Gazette Part I azette du C a.nada Partie I OTTAWA, WEDNESDAY, MAI' 25, 2011 OTTAWA, LE M~RCREDI 25 MAI 2011 CHIEF ELECTORAL OFFICER CANADA ELECTIONS ACT Return of Members elected at the 41 st general election Notice is hereby given, pursuant to section 317 of the Canada Elections Act, that returns, in the following order, have been received of the election of Members to serve in the House of Commons of Canada for the following electoral districts: DIRECTEUR GENERAL DES ELECTIONS LOI $LECTORALE DU CANADA Rapport de deputes(es) elus(es) d la 41 `election g~nerale Avis est paz les pr~sentes donne, conforrn~ment ~ Particle 317 de la Loi electorale du Canada, que les rapports, dans 1'ordre ci-dessous, ont ~t~ regus relativement ~ 1'~lection de d8putes(es) a la Chambre des communes du Canada pour les circonscriptions ci-apr~s mentionn~es Electoral Districts Members Circonscriptions Deputes(es) Calgary Northeast Devinder Shory Calgary-Nord-Est Devinder Shory Prince Georg~Peace River Bob Zimmer Prince George Peace River Bob Zimmer British Columbia Southern Colombie-Britannique-Southern Interior Alex Atamanenko Interior Alex Atamanenko Humber St. Barbe Baie Verte Gerry Byrne Humber St. Barbe Baie Verte Gerry Byrne Kootenay Columbia David Wilks Kootenay Columbia David Wilks Bonavista Gander Grand Bonavista Gander Grand Falls Windsor Scott Simms Falls Windsor Scott Simms Lethbridge Jim Hillyer Lethbridge Jim Hillyer Vancouver Island North John Duncan Yle de Vancouver-Nord John Duncan Nipissing Timiskaming Jay Aspin Nipissing Timiskaming Jay Aspin May 18, 2011 Le 18 mai 2011 MARC MAYRAND Chief Electoral Officer Le directeur general des elections MARC MAYRAND ~ Her Majesty the Queen in Right of Canada, 2011 D Sa MajestE Ix Reine du Chef du Canada, 2011 Published by the Queen's Printer for Canada, 2011 ISSN Publie par I'Imprimeur de Itt Reine pour le Canada, 20l

57 FEDERAL COURT Court File No. T BETWEEN: KEN FERANCE and PEGGY WALSH CRAIG Applicants - and - ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPPISSING-TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, A~JTHONY ROTA Respondents MOTION RECORD OF THE RESPONDENT, JAY ASPIN Cassels Brock &Blackwell LLP 2100 Scotia Piaza 40 King Street West Toronto, ON M5H 3C2 Arthur Hamilton TeI: Fax: ahamilton@casselsbrock.com Theodore Frankel Tel: Fax: tfrankel@casselsbrock.com Jason Beitchman Tel: Fax: jbeitchman@casselsbrock.com Lawyers for the Respondent, Jay Aspin

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59 CANADA CONSOLiDA'['ION CODIFiCATiON Canada Elections Act Loi electorale du Canada S.C. 2000, c. 9 L.C. 2000, ch. 9 Current to May 2, 2012 A jour au 2 mai 2012 Last amended on April 1, 2012 Derniere modification le l avril 2012 Published by the Minister of Justice at the following address Publie par le ministre de la Justice a I'adresse suivante h ttp: // I o i s-i aws. j u s ti ce. gc. ca

60 Loi electa~ale du Canada 2 mai 2012 ~ le fait que le parti est ou non une entite a but non lucratif. Exemption (6) If, in the court's opinion, the public interest and the need to ensure fairness of the electoral process warrant it, the court may, on application, exempt the party and its registered associations fiom the application of subsection 127(3.3) of the Income Tax Act. If an exemption is granted, the court may impose any conditions on the activities of the party, registered association or candidate that it considers app opriate. (6) Le tribunal pent, sur demande, soustraire le parti et ses associations enregistrees a 1'application du paragraphe 127(3.3) de la Loi de!'impot sur le revenu s'il estime que le besoin d'assurer l'integrite du processes electoral et l'interet public le justifient. Il pent alors assujettir les activites du parti, de ses associations enregistrees ou de see candidate aux conditions qu'il juge indiqu~es. Exemption Liquidation (7) If a chief agent, a financial agent or a person specified by the court is, under subsection (3), directed to liquidate, they shall carry out the liquidation in accordance with subsections 501(4) to (7). 2004, c. 24, s. 23. (7) L'agent principal, ]'agent financier ou la personne precisee pac le tribunal effectue la liquidation ordonnee au tiu e du paragraphe (3) conformement aux paragrapher 501(4) a (7). 2004, ch. 24, art. 23. Liquidation des biers PART 20 PARTIE 20 CONTESTED ELECTIONS CONTESTATION DE L'ELECTION niza~,5 or contesta[iwi 522. (1) The validity of the election of a candidate may not be contested otherwise than in accordance with this Part (1) La validite de ]'election d'un candidat ne pent etre contestee que sous le regime de la presente partie. Mode de contestation No effect on rights and obligations (2) The making of an application to contest an election does not affect any right or obligation of a candidate in that election. (2) La presentation dune requete en contestation d'election n'a aucun effet sur lee droits et obligations des candidate a ]'election en questtor. Absence d'effet sur lee droits et obligations des candidate Nul and void election 523. The election of a person is nul and void if, under section 65, the person was not eligible to be a candidate Les motifs d'ineligibilite prevus a l'article 65 emportent la nullite de ('election. NullitE Cuntestatiun of election 524. (1) Any elector who was eligible to vote in an electoral district, and any candidate in an electoral district, may, by application to a competent court, contest the election in that electoral district on the grounds that 524. (1) Tout electeuc qui etait habile a voter dare une circonscription et tout candidat dans Celle-ci peuvent, par requete, contester devant le tribunal competent ('election qui y a ete tenue pour lee motifs suivants Contestation (a) under section 65 the elected candidate was not eligible to be a candidate; or a) ineligibilite du candidat elu au titre de ]'article 65; (b) there were irregularities, fraud or corrupt or illegal practices that affected the result of the election. b) irregularite, fraude, manoeuvre fiauduleuse ou acte illegal ayant influe sur le resultat de ('election. Exception (2) An application may not be made on the (2) La contestation ne pent titre fondee sur Prbcision grounds for which a recount may be requested les motifs prevus au paragraphe 301(2) pour un under subsection 301(2). depouillement judiciaire. Competent 525. (1) The following courts are competent 525. (1) La juridiction siegeant dare le die- co,,,pe~e~,~e ` 'ts courts for the purposes of this Part: trict judiciaire ou se trouve, en tout ou en partie, la circonscription en cause ou la Cour fede- 311

61 Canada Elections May 2, 2012 Courts Rules of procedure Security, service of application (a) a court listed in subsection (2) that has jurisdiction in all or part of the electoral district in question; and (b) the Federal Court. (2) For the purposes of paragraph (1)(a), the courts are (a) in the Province of Ontario, the Superior Court of Justice; (b) in the Province of Quebec, the Superior Court; (c) in the Provinces of Nova Scotia and British Columbia, Yukon and the Northwest Territories, the Supreme Court; (c~ in the Provinces of New Bivnswick, Manitoba, Saskatchewan and Alberta, the Court of Queen's Bench; (e) in the Provinces of Prince Edward Island and Newfoundland, the Trial Division of the Supreme Court; and (~ in Nunavut, the Nunavut Court of Justice. (3) An application shall be dealt with without delay and in a summary way. The court may, however, allow oral evidence to be given at the hearing of the application in specific circumstances. 2000, c. 9, s. 525; 2002, c. 7, s. 94(E), c. 8, s (1) An application must be accompanied by security for costs in the amount of $1,000, and must be served on the Attorney General of Canada, the Chief Electoral Officer, the returning officer of the electoral district in question and all the candidates in that electoral district. rate constituent le h ibunal competent pour entendre la requete. (2) Au paragraphe (i), «juridiction» s'entend de: a) en Ontario, la Cour superieure de justice; b) au Quebec, la Cour superieure; c) en Nouvelle-Ecosse, en Colombie-Britannique, au Yukon et dans les Territoires du Nord-Ouest, la Cour supreme; c~ au Nouveau-Brunswick, au Manitoba, en Saskatchewan et en Alberta, la Cour du Banc de la Reine; e) a 1'Ile-du-Prince-Edouard et a Terre- Neuve, la Section de premiere instance de la Cour supreme; f} au Nunavut, la Cour de justice. (3) La requete est instruite sans delai et selon la procedure sommaire; le tribunal peut toutefois entendre des temoins tors de 1'audition dans des circonstances particulieres. 2000, ch. 9, art. 525; 2002, ch. 7, art. 94(A), ch. 8, art (1) La requete est accompagnee d'un cautionnement pour frais de $ et est signifiee au procureur general du Canada, au directeur general des elections, au directeur du scrutin de la circonscription en cause et aux candidate de Celle-ci. Increase of (2) The court may, if it considers it just, in- (2) Le tribunal peut, s'il t'estime indique, S` "ry crease the amount of the security. majorer le montant du cautionnement. Time limit 527. An application based on a ground set out in paragraph 524(1)(6) must be filed within 30 days after the later of (a) the day on which the result of the contested election is published in the Canada Gazette, and (b) the day on which the applicant first knew or should have known of the occurrence of the alleged irregularity, fraud, corrupt practice or illegal practice La requete en contestation fondee sur 1'alinea 524(1)6) doit titre presentee dans les trente fours suivant la date de la publication dans la Gazette du Canada du resultat de 1'election contestee ou, si elle est posterieure, la date a laquelle le requerant a appris, ou aurait du savoir, que lee irregularite, fraude, manaeuvre frauduleuse ou acte illegal allegu~s ont ete commis. DeHnitiou de juridiction RBgles de procedure Cautionnement et signification Majoration du cautionnement Delai de presentation 312

62 Loi e/ectorale du Canada 2 mai 2012 Withdrawal of 528. An application may not be withdrawn 528. La requete ne peut titre retiree sans application without leave of the court. I'autorisation du tribunal. No[ice of appearance Evidence Dismissal of application Court's decision Duties of court clerk Informing House of Commons Appeal Procedure co~~cs or decision Informing House of commons 529. Any person referred to in subsection 526(1) may, within 15 days after being served with the application, file with the court a notice of appearance if he or she wishes to take part in the proceedings In a proceeding in relation to an application, the written statement of the returning officer is, in the absence of evidence to the contraiy, sufficient evidence of the holding of the election and of any person named in the certificate having been a candidate (1) The court may at any time dismiss an application if it considers it to be vexatious, fi ivolous or not made in good faith. (2) After hearing the application, the court may dismiss it if the grounds referred to in paragraph 524(1)(a) or (b), as the case may be, are not established and, where they are established, shall declare the election null and void or may annul the election, respectively. (3) The clerk of the court shall (a) send copies of the decision to the persons mentioned in subsection 526(1), to any intervenor and to the Speaker of the House of Commons; and (b) inform the Speaker of the House of Commons as to whether or not an appeal has been filed under subsection 532(1). (4) Except when an appeal is tiled under subsection 532(1), the Speaker of the House of Commons shall communicate the decision to the House of Commons without delay (1) An appeal from a decision made under subsection 531(2) lies to the Supreme Court of Canada on any question of law or fact, and must be filed within eight days after the decision was given. (2) The Supreme Court shall hear the appeal ~~ithout delay and in a summary manner. (3) The registrar of the Supreme Court shall send copies of the decision to the persons mentioned in subsection 526(1), to any intervenor and to the Speaker of the House of Commons. (4) The Speaker of the House of Commons shall communicate the decision to the House of Commons without delay Les personnel visees au paragraphe 526(1) disposent de quinze fours apres la signification de la requete pour deposer au tribunal un avis de comparution si efles veulent participer a la procedure Dans toute requete en contestation, la declaration ecrite du directeur du scrutin constitue, sauf preuve contraire, une preuve suffisante de la tenue de 1'election et du fait que tout individu designe dans cette declaration y a ete candidat (1) Le tribunal peut en tout temps rejeter toute requete qu'il juge vexatoire ou denuee de tout interet ou de bonne foi. (2) Au terme de l'audition, it pent rejeter la requete; si les motifs sont etablis et selon qu'il s'agit dune requete fondee sur les alineas 524(1)a) ou b), it dolt constater la nullite de 1'election du candidat ou it pent prononcer son annulation. (3) Le greffier du tribunal expedie un exemplaire de la decision aux personnel visees au paragraphe 526(1), aux intervenants et au president de la Chambre des communes et fait pail a celui-ci de tout appel eventuellement interjete dans le cadre du paragraphe 532(1). (4) Le president de la Chambre des communes communique sans delai la decision a la chamb e, sauf si elle fait I'objet d'un appel (1) Appel pent titre interjete ~ la Cour supreme du Canada de la decision rendue en application du paragraphe 531(2), sur une question de droit ou de fait, dans les huit fours suivant la date oi elle a ete rendue. (2) La Cour statue sur I'appel sans delai et selon to procedure sommaire. (3) Le registraire de la Cour expedie un exemplaire de la decision aux personnel visees au paragraphe 526(1), aux intervenants et au president de la Chambre des communes. (4) Le president de la Chambre des communes communique sans delai la decision a la chambre. ReVai[ de la requete Companrtion Prouve Rejet de la rcquete Decision du tribunal Tra~ismission de la decision Suivi Appel Procedure Transmission de la dbcision Suivi 313

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64 nn -.fi' ~'~~._ y4r!~3 _ ~ Jai n. ~ f ~~ ` CANADA CONSOLIDATION CODIFICATION Interpretation Act Loi d' interpretation R.S.C., 1985, c. I-21 L.R.C., 1985, ch. I-21 Current to May 2, 2012 Ajourau2mai2012 Last amended on April 1, 2005 Derni~re modification le 1 avri12005 Published by the Minister of Justice at the following address: Publie par e ministre de la Justice ~ 1'adresse suivante

65 Interpretation 2 Ana i 2012 in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessaiy to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied. au Canada et, s'il est n~cessaire de recourir ~ des r8gles, principes ou notions appartenant au domaine de la propriety et des droits civils en vue d'assurer ]'application d'un texte dans une province, it faut, sauf regle de droit s'y opposant, avoir recours aux regles, principes et notions en vigueur dans cette province au moment de ]'application du texte. 2001, c. 4, s , ch. 4, art. 8. Tenninolo6Y 8.2 Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces. 2001, c. 4, s Sauf regle de droit s'y opposant, est entendu dans un sens compatible avec le syst8me juridique de la province d'application le texte qui emploie a la fois des termes propres au droit civil de la province de Quebec et des termes propres ~ la common law des autres provinces, ou qui emploie des termes qui ont un Sens different dans 1'un et 1'autre de ces system es. 2001, ch. 4, art. 8. Terminologie PRIVATE ACTS I.OIS D'INTERET PRIVE Provisions in i"'~~r` A ~S 9. No provision in a private Act affects the rights of any person, except as therein mentioned or referred to. R.S., a I-23, s Les lois d'interet privy n'ont d'effet sur les droits subjectifs que dans la mesure qui y est prevue. S.R., ch. I-23, art. 9. Effets LAW ALWAYS SPEAKING PERMANENCE DE LA REGLE DE DROIT Law Tlways speaking 10. The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning. R.S., c. I-23, s La regle de droit a vocation permanente; exprim~e dans un texte au present intemporel, elle s'applique a la situation du moment de fa- ~on que le texte produise ses effets selon son esprit, son Sens et son objet. S.R., ch. I-23, art. ]0. Principe generzl IMPERATIVE AND PERMISSIVE CONSTRUCTION OBLIGATION ET POUVOIRS "Shale' and.~mfly 11. The expression "shall" is to be construed as imperative and the expression "may" as permissive. R.S., c. I-23, s L'obligation s'exprime essentiellement par 1'indicatif present du verbe porteur de Sens principal et, a ]'occasion, par des verbes ou expressions comportant cette notion. L'octroi de pouvoirs, de droits, d'autorisations ou de facultes s'exprime essentiellement par le verbe pouvoir» et, a ]'occasion, par des expressions comportant ces notions. S.R., ch. I-23, art. 28. Expression des notions ENACTMENTS REMEDIAL SOLUTION DE DROIT Enecmients 12. Every enactment is deemed remedial, 12. Tout texte est cens~ apporter une solu- r~;n~,peec deemed remedial and shall be given such fair, large and liberal tion de droit et s'interpr8te de la maniere la plus interpretation

66

67 SCHEDULE B LIST OF AUTHORITIES 1. Ruth Sullivan, Sullivan on the Construction of Statutes (5t" Ed.) 2. Envision Credit Union v. R, 2011 CarswellNat Ceminchuk v. Canada, 1995 CarswellNat Simon v. Canada, 2011 FCA 6 5. Kisikawpimootewin vcanada, 2004 FC Gross v. Wiebe, [1976] 5 W.W.R. 394 (Bask. C.A.) 7. Raeburn v. Lorje, 2000 SKQB Cusimano v. Toronto (City), 2011 ONSC 7271 (Div. Ct.) 9. Morgan v. Simpson, [1974] 3 All ER O'Brien v. Hamel, [1990] 73 O.R. (2d) Blanchard v. Cole, [1950] 4 D.L.R. 316 (N.S. C.A.) 12. Lamb v. McLeod, [1931] S.J. No. 59, [1932] 1 W.W.R. 206 (Bask. C.A.) 13. Miller v. Boxall, 2006 SKQB Di Biase v. Vaughan (City), 2007 CarswellOnt 8775 (C.A.) and 2007 CarswellOnt 5876 (S.C.J.)

68 2 15. Friesen v. Hammell, 2000 CarswellBC Money v. Rankin, [1909] 18 O.L.R Bell ExpressVu Ltd. Partnership v. R, [2002] 2 SCR Hilton v. Norgaard (1992), 11 MPLR (2d) 259 (BCSC) 19. Eight-O Services Ltd. v. Pawlo Investments Ltd., 1981 CarswellOnt Mastroguiseppe v. Vaughan (City) (2008), 61 MPLR (4t") 138 (Ont SCJ)

69 FEDERAL COURT Court File No. T BETWEEN: KEN FERANCE and PEGGY WALSH CRAIG Applicants - and - ATTORNEY GENERAL OF CANADA, MARC MAYRAND (CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPPISSING-TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA Respondents MOTION RECORD OF THE RESPONDENT, JAY ASPIN Cassels Brock &Blackwell LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Arthur Hamilton Tel: Fax: ahamilton@casseisbrock.com Theodore Frankel Tel: Fax: tfrankel@casselsbrock.com Jason Beitchman Tel: Fax: jbeitchman@casselsbrock.com Lawyers for the Respondent, Jay Aspin