Kusmierczyk v. Chief Electoral Officer of Canada, 2026 ONSC 338

2026 ONSC 338

COURT FILE NOS.: CV-25-00034891-0000

CV-25-00034891-0001

DATE: 20260116

SUPERIOR COURT OF JUSTICE - ONTARIO

In the Matter of the Canada Elections Act, S.C. 2000, c. 9

And In the Matter of a Judicial Recount arising out of the 45^th General Election in the Electoral District of Windsor-Tecumseh-Lakeshore

BEFORE: Justice J.R. Macfarlane

COUNSEL: Edwidge Gedna and Sara Collin, for the Chief Electoral Officer of Canada

Jack Siegel, Jessica Spindler, and Jessica Cardill for the Liberal Party of Canada

Eli Mogil, Hartley Lefton, Tom Barlow, and Michael Wilson for Kathy Borrelli and the Conservative Party of Canada

Jeffrey Hewitt and Jack Sullens, for Irek Kusmierczyk and Manvir Shokar

Milton Chan, for Irek Kusmierczyk

HEARD: May 9, 2025 (Application under s. 301 of the Canada Elections Act, S.C. 2000, c. 9)

May 12, 20, 21, and 22, 2025 (Recount)

Reasons for Decision and Recount Report

Introduction

1On May 9, 2025, I heard an application for a judicial recount of the ballots cast in the 45^th General Election in the electoral district of Windsor-Tecumseh-Lakeshore. By order made that day, I granted the application and scheduled the recount to commence at 10:00 a.m. on May 12, 2025. On May 12, the terms of the recount were set. The physical recount took place from May 20-22, 2025.

2These are my brief written reasons for granting the order on May 9, 2025, as well as my final judicial recount report.

Overview

3There was a federal general election held on April 28, 2025. In the electoral district of Windsor-Tecumseh-Lakeshore, there were several candidates including Irek Kusmierczyk (the incumbent, representing the Liberal Party of Canada – “LPC”) and Kathy Borrelli (representing the Conservative Party of Canada – “CPC”). Following validation, the result of voting reported that Mr. Kusmierczyk received 31,985 votes, and Ms. Borrelli received 32,062 votes. This meant that Ms. Borrelli led by 77 votes.

4On the application of Mr. Kusmierczyk and Manvir Shokar, I granted an order for a judicial recount of the ballots returned in the electoral district of Windsor-Tecumseh-Lakeshore. The recount did not change the result of the election, but the margin between Ms. Borrelli and Mr. Kusmierczyk was reduced from 77 votes to just four votes.

Reasons for Ordering Recount

a) The application

5Pursuant to the terms of the Canada Elections Act, S.C. 2000, c. 9 (“the Act”), the 45^th federal general election was held on April 28, 2025. The returning officer for the electoral district of Windsor-Tecumseh-Lakeshore validated the results on May 1, 2025. The Result of Voting Form confirmed that 70,546 votes had been cast. 536 ballots of these were rejected and therefore 70,010 valid votes were counted. Of the valid votes cast, Kathy Borrelli (the representative of the CPC) received 32,062 votes, and Irek Kusmierczyk (the incumbent representative of the LPC) received 31,985 votes, a difference of 77 votes. There were five other candidates in the electoral district, all of whom received fewer than 5,000 votes.

6On May 5, 2025, Mr. Kusmierczyk and Manvir Shokar commenced an application against the Chief Electoral Officer and Ms. Borrelli, seeking an order for a judicial recount under s. 301 of the Act. The application was supported by the affidavits of Mr. Shokar and thirteen other people who had served as scrutineers during the ballot-counting process on behalf of Mr. Kusmierczyk’s campaign. Most of the affiants observed ballots that had been rejected due to extraneous markings on the ballot paper, which arguably should not have been rejected. One affiant, Svetlana Canicio, observed an incorrectly completed form at poll 57 that failed to list the votes cast for Mr. Kusmierczyk, which was later corrected. Ms. Canicio also observed the inclusion of a spoiled ballot in the count recorded at poll 51, and a failure to total the valid votes cast, rejected ballots, and total votes cast at poll 58. Another affiant, Karina Hermann, deposed that by her observation, the election officers had incorrectly counted the ballots at poll 177. She reported they also submitted a reconciled ballot count form when the count had not, in fact, been reconciled.

7I heard the application on May 9, 2025, via videoconference. Neither of the respondents took any position on the application. All the other candidates in the electoral district were given notice of the application, though none participated.

b) The law

8Section 300 of the Act provides for an automatic judicial recount upon the request of the returning officer if the difference in votes between the leading candidate and any other candidate is less than 1/1000 of the votes cast. In this case, the automatic recount was not triggered, because the verified difference between Ms. Borrelli’s vote total and the total cast for each of the other candidates was more than 1/1000 of the votes cast. That threshold would have been 70 votes, and the actual difference was 77.

9Section 301 of the Act provides that an elector may, within four days of the returning officer’s certification of the results, apply to a judge for a recount.

10Section 301(2) of the Act is mandatory, providing that:

(2) The judge shall fix a date for a recount if it appears, on the affidavit of a credible witness, that

(a) an election officer has incorrectly counted or rejected any ballots, or has written an incorrect number on the statement of the vote for the votes cast for a candidate; or

(b) the returning officer has incorrectly added up the results set out in the statements of the vote.

11At para. 10 of Maynard v. Kania, 2008 54978 (Ont. S.C.), Daley J. commented that “[i]n my view, the threshold of proof under s. 301 is low and there is no materiality threshold to be met. If an error of the type described in this section of the Act appears on the evidence offered by the applicant, a date for a recount must be set.” At para. 21, Daley J. adopted the approach taken in Koloski v. Merasty, 2006 SKQB 60, 276 Sask. R. 83, and held that “[i]t is not necessary, nor would it be proper under the scope of the legislation, for the court to assess how material the alleged error was in the overall integrity of the election process.”

12I also considered Koloski, where Rothery J. held at paras. 8-9 that “[t]he entitlement to a judicial recount is dependent upon evidence of errors having occurred. Once that is established by affidavit evidence, the judge is required to order the recount. …The test is to show the judge that it appears there have been counting mistakes.” Both Maynard and Koloski were applied by Vermette J. more recently in Bravo v. Chief Electoral Officer, 2021 ONSC 6707.

13Counsel for the applicants referred me to O’Donohue v. Silva, 1995 623 (ON CA), [1995] 27 O.R. (3d) 162, (C.A.), which was an appeal from a judicial recount under the provincial Municipal Elections Act, R.S.O. 1990, c. M.53. It nevertheless provided helpful guidance for inspecting extraneous markings on ballots. The decision of Poupore R.S.J. in Parry Sound-Muskoka (Electoral District), Re., [2006] O.J. No. 896, involved an automatic recount, but also provided extensive direction on the types of markings on ballots that can lead to their inclusion or exclusion from the count.

c) Analysis

14No issue was taken with the credibility of any of the witnesses who had sworn affidavits in support of the application. I was satisfied, particularly on the evidence of Ms. Canicio and Ms. Hermann, that it appeared that election officers had incorrectly written a number on the statement of the vote for the votes cast at polls 57, 51, 58, and 177.

15I did not, in coming to my conclusion on whether a recount should be ordered, consider the quality of individual ballots. Apart from anything else, the actual ballots were not before me. The affidavits gave only descriptions of them and facsimiles attached as exhibits. Instead, I simply considered the evidence as a whole. I am satisfied that at least some of the ballots rejected ought to have been counted in accordance with the provisions of the Act, and the principles contained in O’Donohue and Parry Sound-Muskoka.

16I did not consider the materiality of any of the errors demonstrated on the evidence; that is to say, I did not take into account whether the errors described would have been likely to affect the outcome of the election. I follow Maynard, Koloski, and Bravo in this regard.

17Having found on the basis of credible affidavit evidence that there appeared to have been errors in the counting, of the nature described in s. 301(2)(a) of the Act, I was mandated by the Act to fix a date for the recount.

d) Conclusion

18For these reasons, and for the oral reasons given at the hearing on May 9, 2025, I ordered that a recount be scheduled to commence on May 12, 2025, by videoconference. It was to continue thereafter in person at the returning office for the electoral district. I conducted the recount in my capacity as a persona designata under the Act.

Report on the Recount Process

a) The commencement of the recount

19I held a hearing on May 12, 2025, by videoconference with counsel and the Returning Officer, to settle the terms of the recount and deal with certain preliminary matters. I made an endorsement that day to which I attached the “Judge’s Terms for the Judicial Recount.” A copy of this endorsement with its attachment is included hereto as Schedule “A.”

20At the conclusion of the May 12 hearing, the recount was adjourned to commence in person on May 20, 2025.

b) The counting of ballots

21The recount proceeded on May 20 and 21, 2025, generally in accordance with the terms that had been established on May 12. Some issues arose as follows, that were all resolved:

• A local media outlet requested permission to film inside the recount room after the first ballot box had been opened and the count had begun. They explained that their crew had arrived late to the venue. I did not consider this a sufficient reason to divert from the recording prohibition that had been established and declined to grant permission for this.

• One advanced poll had recorded 540 people as having voted, but there were only 501 ballots in the box. The returning officer reviewed the issue, and it was resolved.

• One counting team did not finish counting the ballots in a box by the end of the day on the first day. The scrutineer for the LPC had not been satisfied with the count. The handler for the ballots at that table was replaced by the returning officer the next day. Counsel for the LPC asked that the envelopes in the box be reopened and recounted for a definitive count. Counsel for the CPC objected and said that the box should not be treated any differently than other boxes that had a differential with the election night count. After consulting with counsel from Elections Canada, I ruled that the box would be recounted with the new Elections Canada team at that table on the morning of May 21. Parties were permitted but not obligated to replace their scrutineers at that table.

• In three instances, I authorized the opening of spoiled ballot envelopes where it appeared that rejected ballots may have erroneously been placed in a spoiled ballot envelope. In another case, I authorized the opening of a rejected ballot envelope when a report had indicated 3 rejected and 20 spoiled ballots. There was no spoiled ballot envelope in that box, and the rejected ballot envelope contained 23 ballots.

c) The disputed ballots

22The count was concluded by the end of the day on May 21. At the beginning of the day on May 22, there were approximately 350 disputed ballots for consideration. The proceedings on May 22 were conducted on the record. Counsel requested some time to meet and determine whether they could reach agreement to narrow the number and scope of any disputes.

23The review of the disputed ballots was intensive. Arguments were made by the parties for and against the inclusion of specific ballots that were reviewed by the court. As a general proposition, the fundamental goal was to enfranchise electors who had clearly expressed their intention on a ballot, subject to the provisions of the Act and the common law.

24The disputed ballots generally fell into categories as follows:

i. Ballots with no mark in a circle to the right of a candidate’s name.

ii. Ballots with a mark in one circle, but other markings on the ballot that may identify an elector.

iii. Ballots that have been marked in more than one circle at the right of the candidates’ names.

iv. Special ballots

i. No Mark in a Circle

25The first ballot considered in this category was from Poll 2-1. The ballot was marked with an “X” to the left of the name of Mr. Kusmierczyk, and there were no other markings on the ballot. There was no mark inside the circle.

26The analysis starts with ss. 151(1)(b) and 284(1)(b) of the Act. They provide:

Manner of voting

151 (1) An elector shall, after receiving a ballot,

(a) proceed directly to the voting compartment;

(b) mark the ballot with a cross or other mark in the circular space opposite the name of the candidate of his or her choice;

(c) fold the ballot as instructed by the election officer; and

(d) return the ballot to the election officer who provided it.

Rejection of ballots

284 (1) In examining the ballots, the election officer who counts the votes shall reject one

(a) that has not been supplied by him or her;

(b) that has not been marked in a circle at the right of the candidates’ names;

(c) that is void by virtue of section 76;

(d) that has been marked in more than one circle at the right of the candidates’ names; or

(e) on which there is any writing or mark by which the elector could be identified.

[Emphasis added]

27Courts in Ontario and elsewhere in Canada have consistently held that the wording of the Act is clear and mandatory. If there is no mark in a circle to the right of the candidates’ names, the ballot must be rejected, even if the ballot can otherwise be said to clearly express the intention of the elector. Cases include Parry Sound-Muskoka, at para. 36; Kitchener-Waterloo (Electoral District)(Re), 2008 64382 (ON SC), 2008 93 O.R. (3d) 751 (Ont. S.C.), at para. 53; Couillard (Re), 2011 QCCS 2618, at para. 18; Judicial Recount Arising out of the 41^st General Election in the Electoral District of Etobicoke-Centre (Re), 2011 36068, (Ont. S.C.), at para. 36; Firth v. Nickerson, 1980 2502 (NWT CA), [1980] 111 D.L.R. (3d) 525 (NWT. C.A.), at para. 36; and O’Donohue.

28With respect to the ballot from Poll 2-1, counsel for the LPC argued that the clear intention of the elector should effectively trump the wording of the statute, to give full effect to the right to vote contained in s. 3 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11. Notably, no notice of a constitutional question had been given. I ruled that the elector had failed to comply with the mandatory, clear, and unambiguous wording of s. 151(1)(b) of the Act. Therefore, the ballot must be rejected under s. 284(1)(b) of the Act. This does not disenfranchise the elector. Should any party wish to challenge the constitutionality of those sections of the Act, the form of the ballot, or any of the other procedures around the electoral process on Charter or other grounds, an application can be made to the court at any time.

29There were several other ballots in this category which the parties agreed would be rejected based upon my ruling.

ii. Identifying and Non-Identifying Markings

30There were a large number of ballots that were marked in a single circle to the right of the candidates’ names, but that contained markings (either in the circle or elsewhere on the ballot) that might have identified the elector.

31Section 284(1)(e) mandates the rejection of any ballot “on which there is any writing or mark by which the elector could be identified.”

32The Court of Appeal described the intent of a similar provision in O’Donohue, at 9-10:

Election statutes in this country have traditionally contained provisions of this nature. The intent is to ensure the secrecy of the ballot and to prevent election fraud and bribery. Because candidates and their scrutineers are entitled to participate in the counting process, a ballot with identifying marks, defacement, tears or other unusual characteristics may be a signal of a sinister purpose. The identification may be intended to confirm that an elector has voted for a particular candidate so that he might receive a benefit from the candidate in exchange for his vote (customarily, cash or liquor, or both). Section 77(2)(d) is designed to prevent this kind of fraudulent election practice and ensure that votes are secret and not bought.

33The court in O’Donohue ruled on the approach to be taken in determining whether a particular mark or writing can be said to be one that could identify the elector, at 15-16:

The disputed ballots in this case illustrate that a wide range of writings or marks may, for one reason or another, appear on ballots. Whether any given writing or mark may be said to identify the elector is an issue that must be determined on the basis of objective considerations. The question is whether, viewed objectively, it can fairly and reasonably be concluded that the mark or writing on the ballot is such as to create a realistic possibility that it may identify the elector.

The determination of this question plainly involves an element of judgment on the part of those charged with the responsibility of counting or recounting ballots. They are compelled by the terms of the legislation to make a judgment call. In making the call, it would be unreasonable and, in my opinion, contrary to the spirit of the Act, to say that most every mark or writing may contain within it the possibility of identifying, and thereby disenfranchising, a voter. One should be slow to impute an improper purpose for the marks or writing. Ballots should be counted rather than rejected unless there are compelling reasons for rejection.

I agree also with Wright J. that voter intention can be a significant factor in deciding whether extraneous marks or writings may identify an elector. If, on an objective examination of a ballot, there is a probable reason or rational explanation for the mark or writing, this can be taken into account in deciding the likelihood of the elector being identified by the mark or writing. A voter's intention in making the mark or writing, as manifested on the face of the ballot, is relevant to the resolution of the identification issue…

34Each of the disputed ballots in this category was carefully examined. Counsel made submissions with respect to the inclusion or rejection of each. Again, many ballots were counted or rejected based upon the rulings I made along the way. Some examples of my rulings are:

• Ballot 007-1 had an “X” in the circle next to Kathy Borrelli, and “April 28, 2025” (which was the date of the election) written to the left of her name. I was not satisfied on a balance of probabilities that the extraneous mark could serve to identify an elector. I ruled the ballot admissible, and it was counted.

• Ballot 008-2 had a checkmark in the circle next to Kathy Borrelli, and illegible writing that nevertheless appeared to be a signature to the left of her name. I rejected the ballot, as I was satisfied on a balance of probabilities that the extraneous mark could identify an elector.

• Ballot 72-1 had an “X” in the circle next to Kathy Borrelli, and an illegible scribble that did not appear to be writing or a signature in the box next to her name. The ballot was counted.

• Ballot 95-1 had an “X” in the circle next to Kathy Borrelli, and the words “only thanks” written in the box next to her name. I did not consider this to be an identifying mark. The ballot was counted.

• Ballot 106-B1 had an “X” in the circle next to Irek Kusmierczyk, and what appeared to be an obliterated “X” next to Alex Ilijoski, with the initials “L.T.” at the bottom of that circle. The ballot was rejected as having an identifying mark.

• Ballot 115-1 had an “X” in the circle next to Kathy Borrelli, the word “Jesus” written in the box next to her name, and lip prints in lipstick on the back of the ballot. Given the purpose of the prohibition on identifying marks described in O’Donohue, I was satisfied that either of the extraneous marks could be used to identify an elector. I rejected the ballot.

• Ballot 127-1 had the circle next to Kathy Borrelli completely filled-in, and the word “pierre” written in the box next to her name. The CPC argued that it was a reference to the leader of their party. I rejected the ballot on the basis that the name is not unique and could, on a balance of probabilities, be used to identify an elector.

• Ballot 136-1 had an “X” in the circle next to Kathy Borrelli, and what appeared to be the letters “NP” written in the box next to her name. I rejected the ballot on the basis that the letters could identify an elector.

• Ballot 140-1 had markings in the circle next to Kathy Borrelli, which were either an “O” and a checkmark, or the letters “OV.” I was unable to determine which it was and was not satisfied that the LPC had met its burden to demonstrate that the marks could be used to identify an elector. The ballot was counted.

• Ballot 141-2 had the letters “GB” in the circle next to Kathy Borrelli. I rejected the ballot on the basis that the letters could identify an elector.

• Ballot 142-1 had a checkmark in the circle next to Irek Kusmierczyk, and the words “Mark Carney” printed in the box to the left of his name. Mark Carney was the leader of the LPC at the time of the election. I was not satisfied on a balance of probabilities that the words written could identify an elector. The ballot was counted.

• Ballot 169-2 had a checkmark in the circle next to Irek Kusmierczyk, and the words “Irek has done so much for Windsor Tecumseh” printed in the box to the left of his name. I was of the view that this was analogous to the writing “He is the one” next to a candidate’s name, which the Alberta Court of Appeal found to have been used to underscore the voter’s choice in Lukaszuk v. Kibermanis, 2005 ABCA 26, 361 A.R. 345, at para. 52. I was not satisfied on a balance of probabilities that the words written could identify an elector. The ballot was counted.

• Ballot 608-6 had marks in the circle next to Kathy Borrelli. The marks may have been letters, but I found them to be illegible. The ballot was counted.

• Ballot 611-1 had an “X” next to Kathy Borrelli. Her name was crossed out and “Mark Mackenzie” was written in the box next to her name. I was advised that Mark Mackenzie had previously been the CPC candidate for the electoral district but had withdrawn on April 2, 2025. I was satisfied that the LPC had demonstrated on a balance of probabilities that the writing of a full name on the ballot, much like writing “Jesus” or “Pierre”, could identify the elector. I found that the act of writing what may have been the name of a former candidate in the riding, and crossing out the name of the true candidate, was distinguishable from writing the full name of a party leader next to that party’s candidate’s name. I rejected the ballot.

iii. Ballots Marked in More than One Circle

35There were some ballots that contained markings in more than one circle to the right of the candidates’ names. Section 284(1)(d) provides that a ballot must be rejected if it “has been marked in more than one circle at the right of the candidates’ names.” The jurisprudence has established that even if there are markings in more than one circle, the ballot may be counted if the intention of the elector is nevertheless clear: see O’Donohue; Etobicoke-Centre, at para. 33; Parry Sound-Muskoka, at para. 36; and Hewlett (Re), 1996 11659 (NL S.C.), at 21-22 and 24.

36Once again, the disputed ballots in this category were examined, and submissions were made by counsel. Examples of my rulings are:

• Ballot 65-2 appeared to have a very faint “X” in the circle next to Irek Kusmierczyk, as well as a darker filling-in of the same circle, and a single diagonal line in the circle next to Kathy Borrelli. It was not clear on a balance of probabilities that the elector attempted to obliterate an “X” next to Mr. Kusmierczyk’s name and intended to cast a vote for Ms. Borrelli using a single line. It was impossible to determine the elector’s intention. I rejected the ballot.

• Ballot 141-1 had an “X” in the circle next to Irek Kusmierczyk, and a single diagonal line in the circle next to Alex Ilijoski. A very similar situation occurred in Hewlett, where Halley J. accepted a comparable ballot and said, at para. 21 that:

Reserves 16 and 17 have one diagonal right leaning line in Flight's box and a properly formed "x" in Hewlett's box. It is obvious that the voter started to form an "x" for Flight then changed his or her mind, and marked Hewlett's box. The elector's intention is clear that he or she was voting for Hewlett.

However, Newfoundland’s Election Act, R.S.N. 1990, c. E-3 as it read in 1996 when Hewlett was decided, did not contain any provision similar to s. 284(1)(d) of the Act. The situations referenced in Kitchener-Waterloo, at paras. 51 and 53 (the group beginning with ballot 001-1), Parry Sound-Muskoka, at para. 35 (ballots 65-01, 174-1), and Lukaszuk, at para. 48, all involved attempts by the electors to obliterate a mark in a circle. I ruled that s. 284(1)(d) of the Act is mandatory, unless there is a clear mark in one circle, and some effort at obliteration of any “mistaken” marks in other circles, evincing a clear intention by the elector. I rejected the ballot.

• Ballot 609-3 had pencil markings in the circles next to Nick Babic and Kathy Borrelli. The markings next to Nick Babic appeared to be some rubbed-out grey markings, and a large “X” extending beyond the edges of the circle. The marking next to Kathy Borrelli was an attempt to fill in the circle. On viewing the original ballot, it was unclear whether the attempted erasure next to Mr. Babic’s name was done before or after the marking of the “X.” It was impossible to determine the elector’s intention. I rejected the ballot.

iv. Special Ballots

37Special ballots (write-in ballots) are an alternative means of casting a vote in the election. These ballots are typically used by people who reside normally in the electoral district, but for whatever reason are not able to cast their votes in person at the advanced or regular polls. The form of ballot has a front and back side, and the elector is instructed to write in the name of the candidate for whom they wish to cast a vote in the space on the front side. There are local special ballots which are delivered to and counted by the Elections Canada returning office in the electoral district. There are also various other types of special ballots which are delivered to and counted by Elections Canada in Ottawa, with the votes ultimately added to the regular and special ballots counted locally.

38Unlike regular ballots, there is no space on the reverse of the special ballot form for an election officer to insert his or her initials. In this electoral district, there were 21 special ballots which had initials written on the back. The CPC argued that the ballots should be rejected, and the LPC argued that they should be counted. None of the 21 special ballots bearing initials were local special ballots. Three of the 21 ballots bore the same initials.

39Sections 269 and 279 of the Act set out the grounds for rejecting special ballots, which are similar to the grounds for rejecting regular ballots. In particular, ss. 269(1)(e) and 279(1)(e) provide that a special ballot shall be rejected if “there is any writing or mark on it by which the elector could be identified.”

40Elections Canada counsel advised that there had been some internal confusion about whether special ballots should be initialed by an elections officer on the back. Initially, the instructions were given that no initials should be added. Later, someone gave instructions that initials of an elections officer should be placed on the back.

41This turned out to be a much larger issue in the Milton East – Halton Hills South electoral district, in which an automatic recount was conducted by my brother Ricchetti J.: Judicial Recount Report: Milton East – Halton Hills South Electoral District, May 20, 2025, unreported. That report was released while the present recount was underway. Ricchetti J. was faced with many special ballots, both local and otherwise, that had initials on the back.

42After a detailed analysis including much of the same jurisprudence already set out above in relation to identifying marks on ballots, Ricchetti J. held, at para. 109, that “initials on the reverse side of the special ballot were valid ballots and to be counted, unless excluded by some other reason.”

43I made reference above to the Court of Appeal decision in O’Donohue, which upheld the decision of the recount judge, Wright J., reported at [1995] O.J. No. 1690. Both Ricchetti J. in Milton East—Halton Hills South and Himel J. in Etobicoke-Centre cited the following from the decision of Wright J., at para. 36:

I decide that, for a ballot to be rejected under s. 77(2)(d), it must be proven on a balance of probabilities that the voter made the writing or mark, and that the writing or mark may identify the voter. Within the writing or mark, there must be a means of identification of the voter. It must be shown that it is more probable that the purpose for the writing or mark is to identify the voter, and that there is no other rational purpose for the writing or mark.

44Similarly, I adopted this reasoning and ruled that the CPC had not demonstrated on a balance of probabilities that any of the initials on the back of the special ballots had been placed there by electors or could be used to identify electors. Indeed, I found that it was more likely than not that all of the ballots having initials on the back had been initialed by someone at Elections Canada prior to the ballots being sent to electors.

45For those reasons, and following the decision of Ricchetti J., I determined that each of the 21 impugned ballots would be counted unless there was another reason for rejection. To do otherwise would have risked the disenfranchisement of 21 electors based on mere speculation.

46Several of the special ballots contained only the name of a party leader. These were all rejected on consent as failing to identify the candidate for whom the elector intended to cast a ballot. I also made rulings on specific special ballots as follows:

• Ballot SVR-E9-2 contained only the initials “I.K.” written on the front. Section 258(2) of the Act requires the elector to complete the special ballot in the following way: “The candidate shall be indicated on a special ballot by writing the candidate’s given name or initials and surname. If two or more candidates have the same name, their political affiliations shall be indicated.” Section 269(2) provides that “No special ballot shall be rejected for the sole reason that the elector has incorrectly written the name of a candidate, if the ballot clearly indicates the elector’s intent.” I ruled that s. 258(2) permits the use of initials for a given name, but not for a surname, and that merely writing two initials was insufficient to clearly indicate the elector’s intent. I rejected this ballot.

• Ballot SVR1-E9-3 contained the name “Irek Kusmierczyk”, but immediately underneath that were the words “Connor Logan” crossed out by a single line. I rejected this ballot on the basis that the still-visible words could identify an elector.

• Ballot SB2-1-13 contained the words “Kusmierczyk, Alex.” Another candidate’s given name was Alex. I found that including the surname of one candidate and the given name of another did not clearly indicate the elector’s intent, and s. 269(2) therefore did not apply to save the ballot. I rejected the ballot.

• Ballot SB2-1-14 contained the words “Rayzard Kusmierczyk.” I was advised that Rayzard is the given name of the candidate Irek Kusmierczyk’s father and official agent. The writing of this name could be used to identify an elector. I rejected this ballot.

• Ballots SBR 2-3-5 and SBR 2-3-6 both had written on them “Borrelli, Kathy P.C.” I was not satisfied on a balance of probabilities that the initials “PC” could reasonably be thought to refer to the initials of an elector. I noted that in Ontario, the provincial conservative party is still known as the “PC” party, standing for Progressive Conservative. I found that on a balance of probabilities the initials “P.C.” refer to the former longstanding name of the major constituent party that preceded the CPC. Earlier, I had counted ballot SB2-1-21 for Mr. Kusmierczyk when the initials “LP” were written next to his name. I note that this was done with the consent of the CPC, who were arguing in favour of the inclusion of the two ballots for Ms. Borrelli noted above. In my view, the initials “LP” likely referenced the LPC. Both ballots were counted.

d) Conclusion

47Following the review of the disputed ballots, Elections Canada staff under the supervision of Mark Moore, the Returning Officer for the electoral district, completed the reconciliation of all the ballots. No further issues were raised by counsel for any of the parties or candidates. Late in the evening of May 22, 2025, I signed the Certificate of Judge on Judicial Recount which set out the final results of the voting as required by s. 308(a) of the Act. The Returning Officer was then able to endorse and return the writ for the electoral district of Windsor-Tecumseh-Lakeshore as provided in Part 15 of the Act. As noted in the overview above, the margin of victory for Kathy Borrelli was reduced to four votes, but the result of the election did not change. The final count was:

BABIC, Nick

People’s Party – PPC

828

BORRELLI, Kathy

Conservative

32,090

CHARIF, Helmi

Centrist

223

ILIJOSKI, Alex

NDP

4,240

KUSMIERCZYK, Irek

Liberal

32,086

ST DENIS, Beth

Christian Heritage Party

203

TELLIER, Roxanne

Green Party

468

Total Valid Votes

70,138

Rejected Ballots

458

TOTAL VOTES

70,596

48This was a challenging and lengthy process, and an important and fundamental step in our democracy. I would like to thank the candidates, the political parties, and their representatives and counsel for all their assistance and professionalism throughout the process. Counsel in particular were polite, friendly, and collegial, and conducted themselves in the very best traditions of the bar. Those comments extend as well to counsel for Elections Canada, who were of considerable assistance to me. I also thank the staff from the Superior Court of Justice, Raegan and Michelle, who assisted me greatly throughout the process.

49Finally, Returning Officer Mark Moore and the legions of staff under his leadership were wonderful. I thank them for their incredible organization, and all the meticulous work in ensuring that the judicial recount proceeded smoothly and in accordance with the Act. I marveled at their attention to detail in every aspect of the process, from the tracking of the polls to the security of the large office where the recount was held.

50I commend everyone involved in playing their part to ensure the enfranchisement of the voters of Windsor-Tecumseh-Lakeshore throughout the judicial recount, and I thank them all for their assistance.