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case of fraud from which an inference may be drawn that the results were affected and that,
[74]
The Supreme Court’s reference to a prima facie case arose in the specific context where
the applicant could not directly prove that a non-entitled person voted. The Court recognized that
prima facie proof that an irregularity occurred may be sufficient to permit the necessary factual
inferences to be drawn to meet the civil standard of proof. In those circumstances, the respondent
bears the risk of annulment if it can not be established that an ineligible vote was not cast or that
it did not affect the results. Absent a statutory direction to the contrary, which is not present here,
the burden of proof never shifts to the responding party and the standard remains that of the
balance of probabilities: FH v McDougall, 2008 SCC 53 at para 40.
[75]
In Opitz, the Supreme Court used the “magic number” test to determine whether the
application judge should have annulled the result. The test was explained at paras 71-73:
71 To date, the only approach taken by Canadian courts in
assessing contested election applications has been the "magic
number" test referred to in O'Brien (p. 93). On this test, the
election must be annulled if the rejected votes are equal to or
outnumber the winner's plurality (Blanchard, at p. 320).
72 The "magic number" test is simple. However, it inherently
favours the challenger. It assumes that all of the rejected votes
were cast for the successful candidate. In reality, this is highly
improbable. However, no alternative test has been developed. No
evidence has been presented in this case to support any form of
statistical test that would be reliable and that would not
compromise the secrecy of the ballot.
73 Accordingly, for the purposes of this application, we would
utilize the magic number test. The election should be annulled
when the number of rejected votes is equal to or greater than the
successful candidate's margin of victory. However, we do not rule
out the possibility that another, more realistic method for assessing
2013 FC 525 (CanLII)
having done so, the burden of proof then shifts to the respondents.
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