Forsyth v Fraser, 2013 ABQB 557

Court of Queen ’ s Bench of Alberta Citation: Forsyth v Fraser, 2013 ABQB 557 Date: 20130925 Docket: 1201 05452 Registry: Calgary Between: Heather Forsyth Applicant/Interested Party - and - David McIntyre, Returning Officer Respondent - and - Wendelin Fraser Respondent/Applicant - and - Heather Forsyth, Eric Leavitt and Nazir Rahemtulla Interested Parties

_______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice C.S. Brooker _______________________________________________________ Introduction [ 1 ] Ms. Forsyth, the applicant in this matter, seeks an award of costs in relation to a judicial recount following a provincial election. History [ 2 ] On April 23, 2012 a Provincial General Election was held in Alberta. Following the close of polls, the unofficial count indicated that Heather Forsyth of the Wildrose Alliance Party had obtained the largest number of votes for the Calgary - Fish Creek electoral division.

Wendelin Fraser of the Progressive Conservative Party came in second. The unofficial vote count indicated that 7,700 votes had been cast for Ms Forsyth and 7,626 votes had been cast for Ms Fraser, and that a total of 17,528 ballots had been counted. [ 3 ] An official count was subsequently conducted pursuant to

section 137 of the Election Act , RSA 2000 c E-1. This count confirmed that Ms Forsyth had won the election, albeit by a slightly different margin. The Certificate of Return indicated that of the 17,467 counted ballots, Ms Forsyth received 7,676 votes and Ms Fraser received 7,636 votes; a 40-vote margin of victory. [ 4 ] In advance of the official count, the Returning Officer notified all candidates and the official agents of the candidates of the date, time and location of the commencement of the official count.

The official count for the Calgary - Fish Creek electoral division commenced at 10:00 a.m. on April 25, 2012 and was finalized late in the afternoon on the following day. The Returning Officer, Election Clerk, candidate representatives and three Deputy Returning Officers were present for the official count. Affidavit evidence provided by the Returning Officer indicates that the established “ Election Management ” protocol was followed. Scrutineers from each party were present and no objections were raised to any ballots by either candidate.

The official count confirmed that the number of spoiled ballots - which totaled 71 - exceeded the margin of victory. A comparison of the unofficial and official counts indicates that 61 fewer ballots were counted on the second count. [ 5 ] On May 3, 2012, Ms Fraser filed an Originating Application seeking a judicial recount of the ballots on the basis that votes had not been correctly accepted and ballots not properly objected, and that the Certificate of Return did not accurately record the number of votes.

There was no suggestion of fraud or corruption, nor of wrongdoing by any candidate. [ 6 ] A judicial recount was conducted by this Court on May 10, 2012. By the end of the counting phase of the judicial recount, there were 220 disputed ballots. Scrutineers for both candidates made objections. Through a consultation process, these 220 initially disputed ballots were reduced to 6 objections which were ruled on by the Court.

The result of the judicial recount confirmed that Ms Forsyth was the winner of the election having received 7,672 votes and that Ms Fraser came in second with 7,634 votes; a 38-vote margin of victory. [ 7 ] This Court then directed that the parties resolve the matter of costs. They were unable to do so and Ms Forsyth subsequently brought an application for the determination of the costs in relation to the judicial recount. Issue

[ 8 ] This court is tasked with determining the allocation of costs in relation to the judicial recount. Once the correct allocation has been determined, the appropriate amount of costs must also be decided. Analysis

a) allocation of costs [ 9 ]

Section 148.1(1) of the Election Act provides that following a judicial recount, the Court may exercise its discretion in making an award of costs: Costs 148.1(1) If a recount is conducted or an appeal is heard under this Part, the court may direct (

a) that the parties bear their own costs, or (

b) that costs be paid to one or more of the parties by any or all of the following: (

i) the applicant; (ii) one or more of the candidates; (iii) the Crown in right of Alberta.

(2) Costs must be determined in accordance with the Alberta Rules of Court and the practice and procedure of the Court of Queen ’ s Bench or the Court of Appeal, as the case may be. [ 10 ]

Section 148.1 of the Election Act was added in April of 2010, subsequent to the Court of Appeal ’ s decision in Lukaszuk v Kibermanis , 2005 ABCA 259 , 371 AR 285 , a costs decision following an appeal from a judicial recount: 2005 ABCA 26 , 361 AR 345 . The Court of Appeal concluded that absent any statutory authority for awarding costs against the Crown, the parties were ordered to bear their own costs.

Of note, the Court stated as follows, at paras 5-6: We strongly recommend that the Legislative Assembly consider adopting costs legislation in recount cases such as this, similar to that in effect under The Local Authorities Election Act , supra . The issue here involves more than the personal interests of either of these candidates in this election. Rather, the overriding issue is the public interest in ensuring that the candidate validly chosen by the people through the electoral process is declared elected.

That public interest extends beyond the actual holding of the election to both the electoral process and the determination of the ultimate result. Put simply, this case is not about either candidate; it is about the people of Edmonton-Castle Downs. Indeed, to the extent that a recount relates to the integrity of the electoral process, it concerns all Albertans.

Allowing a reviewing court the discretion to order that costs be paid by the public in an appropriate case serves to protect that public interest. [ 11 ] While, in the case at bar, the Chief Electoral Officer and the Returning Officer took no position as to who should bear costs or on which scale, the remaining parties took different approaches as to how

section 148.1 of the Election Act is to be interpreted.

[ 12 ] The applicant takes the position that the Crown is responsible for the legal costs of the parties. She submits that the legislature did not intend for a judicial recount to impose a financial burden upon the candidates and that the Crown should compensate the parties for their costs. The applicant stresses that the public interest aspect of an electoral recount supports an award of costs payable by the Crown. Alternatively, the applicant argues that costs should be apportioned between the Crown and the respondent Fraser.

In so doing, she stresses that her position as the successful candidate was upheld during the judicial recount and that, as the successful litigant, she is entitled to her legal costs. The applicant relies largely on the above statement by the Court of Appeal in Lukaszuk in support of her primary position that the Crown should bear costs. [ 13 ] The Crown submits that the Election Act does not provide for automatic liability of the Crown for costs associated with a judicial recount.

Rather, it allows the Court to exercise discretion in making a costs award. [ 14 ] The Crown argues that s 148.1 of the Act should not be read in an inflexible manner whereby the Crown is automatically made liable for costs upon the event of a recount. In support of this position the Crown relies on Wrezesnewskyj v Canada (Attorney General) , 2012 ONSC 3718 , 351 DLR (4th) 642 , rev ’ d on other grounds 2012 SCC 55 , [2012] 3 SCR 76 ( “ Opitz ” ) where the losing party in a federal election sought a judicial recount.

The margin was very close (26 votes) and the applicant contested the election on the grounds that there were irregularities in the registration and identification of electors. There was no suggestion of wrongdoing by any party. After declaring the election null and void, the Court of Appeal addressed the issue of costs. It held that there was no “ unsuccessful ” party and noted that the applicant did not look to the other candidate for costs, but rather to Elections Canada. In denying this request, the Court held, at paras 9-10 that: This was a matter of public interest and of general concern.

It is part of the collective responsibility of all Canadian citizens to bring such matters into the public sphere. It is a fact that coming to court can be expensive. In this case, there was no suggestion that those involved did not have the necessary resources available to them. There will be no order for costs. In this case, each party should be responsible for its own costs. [ 15 ] The Crown stressed the fact that the Court of Appeal in Opitz expressly acknowledged that the integrity of the electoral process was a matter of public concern, yet it ultimately concluded that each party should bear its own costs.

The Crown relies on Opitz in support of its position that in judicial recounts, the expected costs outcome is either: (

a) costs against the unsuccessful party; or (

b) the parties bear their own costs. The Crown also referred to Maynard v Kania , 2010 ONSC 18 , 100 OR (3d) 283 , and Grant-Jury v Blaikie , 2011 MBQB 238 , 269 Man R (2d) 279 . In both of these cases the Court ordered the applicant (unsuccessful candidate) to pay costs where the results were not altered following a judicial recount. [ 16 ] The respondent takes the position that the Crown should bear the costs or, alternatively, that the parties should be responsible for their own costs.

While the respondent acknowledged that generally in litigation, the successful party is awarded costs payable by the unsuccessful party, she argued that the public interest aspect in electoral matters modifies the definition of "success". In this instance, she submits that "success" should be defined as the maintenance of public confidence in the voting process.

The respondent argues that given the narrow margin of victory and the differential in accepted ballots from the unofficial count to the official count, a judicial recount was required in order to maintain public confidence in the result. [ 17 ] The respondent relies on Opitz in support of her position that traditional litigation-based notions of success must be modified where the matter is of public interest and general concern.

The respondent also relies on Opitz in support of her alternative argument that each party should pay their own costs, as there was no suggestion that they lacked the necessary resources to do so: para 8. [ 18 ] I find that s 148.1 of the Election Act is worded in a manner meant to provide the Court with broad discretion over costs following a judicial recount. The Act sets out a number of different alternatives for the Court to consider.

In addition, it dictates that costs must be determined in accordance with the Rules of Court and the Court ’ s practice and procedure. [ 19 ] It is clear that both the process governing - and eventual outcome of - an election is of general public interest. A judicial recount exists to promote confidence in the legitimacy of election results. However, the mere fact that a matter may transcend the immediate interest of the litigants does not automatically result in a costs liability for the Crown.

The numerous permutations provided for under s 148.1 suggest to me that the ultimate award of costs is a fact-specific endeavor. [ 20 ] In this way, I note that our Province ’ s Act differs from the Canada Elections Act , SC 2000, c 9, which was the applicable

legislation in Opitz , as well as Maynard and Grant-Jury .

Section 309 of the Canada Elections Act provides that where a judicial recount does not alter the result of the vote so as to affect the return, the judge “ shall ” order the costs of the winner of the election to be paid by the person who applied for the recount.

Section 310 allows an applicant to apply to the Chief Electoral Officer for reimbursement of their costs in respect of the recount. Thus the Federal Act creates a presumption that an unsuccessful candidate on a recount will bear costs (at least initially, ignoring any subsequent application made under s 310) that does not exist on a plain reading of the Provincial Act . [ 21 ] A judicial recount acts to ensure public confidence in the electoral process by providing the Court ’ s confirmation that the successful electoral candidate did in fact receive the largest number of properly cast votes.

While this function clearly serves the public interest, there is also an individual element. It is clear that Ms Fraser was personally invested in the outcome of the judicial recount and stood to personally benefit should the result affect the return. As noted above, the recount affirmed Ms Forsyth ’ s victory. [ 22 ] In this way, Ms Fraser may be considered the “ unsuccessful ” litigant as she failed to obtain a seat as an elected Member of the Legislative Assembly for the Calgary-Fish Creek electoral division following the recount. Similarly, Ms.

Forsyth would be considered the “ successful ” litigant as she maintained her seat. She also benefitted personally when the result was upheld. [ 23 ] The general rule for payment of litigation costs is that the successful party to an application is entitled to a costs award against the unsuccessful party: Rule 10.29(1) of the Rules of Court . Ms Forsyth relies on this general rule in making her argument that Ms Fraser pay a portion of her costs. Of course, the general rule is modified by any legislation governing who is to pay costs in particular circumstances: Rule 10.29(1)(d).

As noted above, the Election Act provides the Court with a variety of permutations in awarding costs in order to tailor an appropriate costs award to the circumstances. [ 24 ] On the facts before me I find that the Crown should bear the cost of the application. In so ordering I stress that my finding is fact-specific and that I agree with the Crown that the wording of the Act does not ground automatic liability for payment in the Crown. However, the facts at bar favour the Court exercising its discretion in this fashion.

The margin of victory between Fraser and Forsyth was very close, with only 40 votes separating the candidates following the official count. This figure becomes more significant when contrasted against the fact that over 15,000 votes were cast between the two candidates, resulting in a 0.26% differential. In this instance, the number of spoiled ballots exceeded the margin of victory.

As well, the discrepancy between the number of votes counted unofficially versus the number counted officially exceeded the margin victory. [ 25 ] In Opitz , Rothstein and Moldaver JJ for the majority, noted, at para 2 that: ...Given the complexity of administering a federal election, the tens of thousands of election workers involved, many of whom have no on-the-job experience, and the short time frame for hiring and training them, it is inevitable that administrative mistakes will be made.... [ 26 ] While the comments in Opitz pertain to federal elections, similar concerns exist in relation to a provincial election.

The possibility of error, coupled with the slim plurality of votes, supports the conclusion that it was in the public ’ s interest to ensure confidence in the electoral process through a judicial recount of the contested ballots. [ 27 ] Section 144(1) of the Election Act provides that a candidate may only apply to the Court for a judicial recount if he or she can establish one or both of the following: (

a) that votes were not correctly accepted or ballots were not correctly rejected; or (

b) that a Certificate and Return does not accurately record the number of votes for a candidate. Once the application has been filed, the Act provides that the Court “ shall ” direct a recount. While the mandatory wording of the

section ensures the right to a judicial recount, thus providing for transparency and fairness in the election process, there is a risk that it may encourage a candidate to embark on the process lightly or for improper motives. [ 28 ] One can imagine a situation where a candidate might casually partake in the process (such as failing to attend for the unofficial or official counts) and then apply for a judicial recount. Such an approach must surely attract cost consequence. While in the case at bar Ms Fraser made no objections during the official count, there is no evidence that she took the process lightly.

Both Ms Fraser and Mr Forsyth had official agents present for the duration of the official count. Both obtained legal counsel to represent them in relation to the judicial recount. By the end of the counting phase of the recount, there were over 200 disputed ballots. Following a conference between the parties and the Returning Officer, this number was reduced to six. The objections raised concerning the remaining ballots were generally well-founded. [ 29 ] In addition, I note there is no evidence that Ms. Fraser ’ s application was motived by anything other than a desire to ensure that

the Certificate and Return accurately reflected the votes cast by the electorate. In short, the application for the judicial recount was bonafide. [30] In sum, while I acknowledge that there is a personal element to making an application for a judicial recount, the overridingfactor is one of public interest in ensuring public confidence in a fair and transparent electoral system.

In the case at bar the margin ofvictory was quite close, there was no evidence that Ms Fraser was taking the process lightly, and the application did not appear to bemotivated by anything other than a desire to ensure the voting record accurately reflected the ballots cast for each candidate. This is aproper case for payment of costs by the Crown, pursuant to s 148.1(1)(b)(iii) of the Act.

b) quantum [31] Having found that the Crown is to bear Ms. Fraser’s costs of the application, I must next determine the proper quantum ofcosts. [32] The applicant takes the position that costs should be awarded on a solicitor-client basis, albeit on a modified calculation.Counsel’s bill totaled $27,556.52, of which they are seeking $15,000. The applicant submits that this amount represents a reasonableportion of her total legal fees. The applicant further submits that while

Schedule C is not applicable in the circumstances, Column 5 isstill a relevant factor to be considered. She argues that the public interest aspect of a judicial recount, coupled with the specialized natureof election litigation and the short time frame within which counsel had to prepare for the recount, all support the higher costs award. [33] Ms Fraser and the Crown submit that there is no reason to depart from the usual costs regime in the circumstances. Theysubmit that costs should be based on a party-party (as opposed to solicitor-client) basis, and that while costs should be calculated withreference to

Schedule C, Column 5 is inappropriate. Alternatively, they argue that if solicitor-client costs are to be awarded, Ms Fraser’sbill should be taxed, as it came to almost three times the amount of Ms Forsyth’s bill. [34]

Section 148.1(2) of the Election Act states that costs must be determined in accordance with the Rules of Court and thepractice and procedure of this Court. While an order of costs is discretionary, costs are typically recovered on a party-party basis withreference to the appropriate column of

Schedule C of the Queen's Bench Rules: Pauloski v Nascor Inc, 2002 ABQB 855, 324 AR 333, atpara 7. [35] I agree that this is not an appropriate case in which to order costs on a solicitor-client basis. Departure from the usual party-party cost regime requires extreme caution and should only occur in unusual or exceptional cases: Jackson v Trimac Industries Ltd(1993), (AB KB), 138 AR 161 (QB) varied on other grounds (1994), 1994 ABCA 199 , 155 AR 42 (CA); Pauloski para 8; Reform Party of Canada v Canada (Attorney General) (1995),1995 ABCA 309 , 174 AR 169 (CA).

In general,solicitor-client costs are awarded in cases where there has been some misconduct on the part of one of the litigants during the litigationprocess.

Solicitor-client costs may also be ordered in exceptional circumstances wherein justice can only be served by a completeindemnification for costs: Jackson at para 28; Eggertson v ATA, 2003 ABCA 101, 327 AR 92 at para 9. [36] Ms Forsyth argues that given the public interest element of the application, an award of solicitor-client costs is justified.However, the fact that the application was a matter of public interest and community concern does not necessarily dictate a deviationfrom the usual approach to costs.

In Reform Party of Canada the Court of Appeal found that there was no basis for solicitor-client costs,holding, at para 3: It is suggested that heavier costs should be awarded for public interest litigation, especially under the Charter. Some reported casessuggest lighter, or no, costs for the same type of case.

We are inclined to disagree with both suggestions, and approach such litigationfrom the usual principles of costs. [...] [37] This approach was subsequently approved of by our Court of Appeal in its costs decision in Vriend v Alberta (1996), 1996ABCA 274 , 184 AR 351, where the majority ordered party-party costs following public interest litigation. Although Vriendinvolved a Charter issue, the Court held that the circumstances did not justify a departure from the customary rule of party-party costs tothe successful litigant.

Following an appeal to the Supreme Court of Canada, costs were awarded on a party-and-party basis throughout: (SCC), [1998] 1 SCR 493, para 180.

[38] In the circumstances at bar, an award of costs on a solicitor-client basis is not justified. The customary rule of party-partycosts is the correct approach. As such, the next question is which Column under

Schedule C is appropriate in the circumstances. Duringoral argument, Ms. Fraser submitted that under

Schedule C, the default column for non-monetary applications is Column 1. Ms Forsythsubmitted that Column 5 was appropriate, given the type and complexity of the application. [39] Rule 10.33(1) provides that, in making a costs award, the Court may consider a variety of factors, including, inter alia, thedegree of success of each party, the importance of the issues, and the complexity of the action.

The importance of the issues may beexamined vis-a-vis the importance to both the parties, and to the community at large: see Pharand Ski Corp v Alberta (1991), (AB KB), 122 AR 395 at 398 (QB); Eggertson, para 13. [40] In cases of judicial recounts, the notion of “success” takes on a hybrid definition of both success in maintaining the integrity ofthe electoral process, as well as the relative success of the candidates on the recount. The importance of the issue is also hybrid, as theprocess/outcome of the recount is important to both the candidates and to the community at large.

I recognize that election litigation is asomewhat specialized area of law, that judicial recounts are uncommon and that there are very tight time lines mandated for judicialrecounts. However, I would not describe this recount as “complex”. [41] In Gordon v Bourque, 2002 ABQB 222, 304 AR 178, the Court dealt with costs of an application made to challenge anelection under the Local Authorities Election Act, RSA 2000, c L-21. The applicant successfully sought a declaration that the electionwas void due to the ineligibility of certain voters. A review of the ballots was required.

I note that outside of certain specific sections ofthe Local Authorities Election Act, the Act provides that the general rules governing costs under (then)

Part 47 of the Rules of Courtapply. This is similar to the wording of s 148.1(2) of the Election Act which also provides that cost be determined in accordance with theRules and the Court’s practice and procedure. [42] In discussing how the issue of costs should be approached, Slatter J (as he then was) stated that as per the Rules, incontroverted elections the starting point is that a successful party would receive costs on Column 1. He then went on to review theexisting authority on the issue, noting that there was a wide divergence of approaches to costs in controverted election cases. I havereproduced his

summary of those authorities below (paras 13-17): In Edmonton (City) v. Chichak, 1990 ABCA 190 , [1990] 5 W.W.R. 300, 74 Alta. L.R. (2d) 289, 108 A.R. 236, 50 M.P.L.R.283 (C.A.) the City challenged a successful candidate for having unpaid municipal taxes. The trial judge found that the councillor wasdisqualified, but because the councillor had simply made an honest error of judgement and had in fact paid the taxes, he declined tovacate her position. The Court of Appeal upheld the decision, but on the basis that the City had failed to bring the application within thetime limited by the statute.

In brief oral reasons the Court indicated that the successful party (here the challenged councillor) shouldgenerally receive costs, but that costs should rarely be awarded on a solicitor and client basis. The report of the case does not indicate thescale of costs awarded. In Bowerman v. Bidlock (1993), (AB KB), 7 Alta. L.R. (3d) 286, 137 A.R. 388 the Applicant was able to identifysome irregularities in the voting, but not any sufficient to set aside the eventual result.

As the problem had arisen because of errors by thelocal authority, the trial judge proposed to award the unsuccessful Applicant costs on a solicitor and client basis. The Respondent localauthority did not oppose this award of costs. In Vogel v. Brazeau No.

TI (Municipal District) (1996), (AB KB), 183 A.R. 121, 32 M.P.L.R. (2d) 195 theApplicant was again able to demonstrate some irregularities in the election, but the election was essentially fair and was not set aside.The trial judge indicated that the election had been carried out in a most careless manner, and that the proceedings were entirely justified.As a result the unsuccessful Applicant was awarded costs on a solicitor and client basis. In Blyan v. Buffalo Lake Metis Settlement, [1997] A.J.

No. 764 the Applicant was successful in declaring the election of his competitorvoid, and having himself appointed instead. No carelessness on the part of the local authority was found. The trial judge held thatsolicitor-client costs are only available as a punitive sanction, and since there was no carelessness in the holding of the election in thiscase, only party and party costs were allowed. Given the complexity of the case, those costs were awarded on Column 3. In L'Hirondelle v. Grier, [2000] A.J.

No. 1441 the Applicant was unsuccessful in applying to set aside a Metis Settlement election, butnevertheless applied for costs. She argued that she had shown some irregularities in the election, although not any sufficient to justifysetting aside the election. She also argued that the election litigation invoked the public interest, and that she was of limited means. Thetrial judge rejected these arguments and awarded costs taxed on Column 1 to the Respondents.

He found that since the Applicant hadnever presented any convincing argument that the irregularities had affected the result, the litigation was not really necessary or justified.

Since the Applicant had a personal interest as a failed candidate, she could not claim to be acting entirely in the public interest. There wasno reason to depart from the ordinary cost Rules, and the successful Respondents were awarded costs on Column 1. [43] In determining the appropriate costs award, Slatter J took note of a number of factors, including that the applicant had beensuccessful in both identifying irregularities in the election and in having the result set aside. He also noted that there had been nocarelessness on the part of the Returning Officer.

He did find, however, that the conduct of the respondent during its opposition to theapplication (which necessitated an adjournment and the filing of an additional brief) increased the costs bourne by the applicant.

Inexamining the public interest aspect of the application, Slatter J correctly expressed a concern that it would be undesirable to create costsconsequences such that only the wealthy could afford to challenge the result of a disputed election. [44] He went on to address the balance between the public and private nature of such applications at paras 35-36: Some of the cases suggest that when an unsuccessful candidate challenges an election, the candidate really has a personal interest in theoutcome.

That is undoubtedly true, but if a candidate is arguing that he or she was the true winner of the election, he or she invokes notonly his or her personal rights but also the rights of all of the people who elected him or her. As such, the public interest is engaged in allelection disputes, even though the particular Applicant may have some personal interest. As the Court pointed out in Alberta v. Ell, 2000ABCA 248 , [2001] 1 W.W.R. 606, 83 Alta. L.R. (3d) 215, 266 A.R. 266, 49 C.P.C. (4th) 18 at paragraph 69, costs can beawarded on an increased scale when the public interest is involved.

On the other hand, the usual reasons why costs do not generally provide a full indemnity are also in play. Even if there are minorirregularities in an election, litigation over the validity of the election should not be encouraged if the result was essentially fair andreflected the will of the majority. It is important that the positions of apparently elected officials not be unnecessarily thrown into doubt. [45] While Slatter J found that a strict application of

Schedule C costs was not well-suited to an application contesting electionresults, he ultimately awarded 1½ times Column 5, noting the complexity of the application and the fact that the tariff did not adequatelyreflect the cost of the chambers proceedings. [46] This approach was subsequently adopted by Kenny J in Omoth v Ghostkeeper, 2005 ABQB 767, where an application wassuccessfully brought to declare an election invalid due to the ineligibility of an elected individual. Again, a review of the ballots wasrequired.

The applicants initially sought costs on a solicitor-client basis but amended their position to seek costs on double Column 5.The respondent Paddle Prairie Métis Settlement argued that ordinary costs rules should apply and suggested Column 3 was appropriate. [47] Kenny J examined the same factors considered in Gordon and noted that the applicant had been successful, there was nocarelessness on the part of the Settlement, the issue of ineligibility for nomination was novel, and that there was a strong public interestelement to brining the application.

Kenny J distinguished the case before her from Gordon on the basis that there was no allegation ofmisconduct of the parties and that the matter had not yet concluded, as there was an outstanding issue regarding eligibility of certainvoters. She awarded single costs on Column 5. [48] In addition the above, the parties provided me with case law dealing specifically with judicial recounts. In Grant-Jury, theparties agreed that costs should be taxed under Tariff “A” of the Manitoba Court of Queen’s Bench Rules as a Class 3 proceeding. Whilethe Manitoba Tariff is not identical to our

Schedule C, it similarly operates on a graduating scale according to recovery amounts. BothClass 3 proceedings under the Tariff and Column 3 proceedings under

Schedule C cover the same monetary range. In Borrowman vWickens (1988), (SK KB), 72 Sask R 103 (SKQB), the Court noted that there was a mixed public and private aspectto judicial recounts and awarded costs on double Column 5 of the tariff. [49] In the case at bar, Ms Forsyth successfully defended her position as the candidate who received the greater number of ballots.As previously stated, there were no allegations of misconduct as against either candidate or as against the Returning Officer.

While therewas a personal element to the application, as both candidates were hoping to be declared the winner following the recount, it isundoubtedly in the public interest that elections be fair. Lastly, while judicial recounts do not occur often and election litigation issomewhat specialized, nothing novel arose during the recount and the issues were not overly complex. [50] Accordingly, but for one complicating matter (which I will discuss later in these Reasons) I would award costs in this mattercalculated on single Column 5, plus disbursements.

[ 51 ] Ms Forsyth also argues that given that the judicial recount began early in the morning of May 10 th , 2012 and lasted until approximately 6:00 p.m., costs should be calculated based on three half-days. However, as Ms Fraser ’ s counsel points out, the proceedings that day were lengthened due to Ms Forsyth ’ s counsel bringing a preliminary application at the start of the day to have the application for a judicial recount set aside. That application was dismissed.

Ms Fraser seeks costs for that application against Ms Forsyth. [ 52 ] The preliminary application did have the affect of lengthening the proceedings somewhat. I would therefore agree that costs should be calculated on the basis of two half-days rather than three half-days. However, there was no real preparation required by Ms Fraser ’ s counsel as the application was brought without notice to her.

In all of the circumstances, I do not think it appropriate to award any costs to any party for the preliminary application and I decline to do so. [ 53 ] The circumstances of this case do not justify an award of costs for second counsel. [ 54 ] As noted previously, in my opinion the appropriate award of costs in this case would be on single Column 5 of the Rules of Court . However, it became clear during the course of the argument as well as from some of the material filed on this cost application, that the Crown had settled and paid the cost claim of Ms Fraser.

Although the exact amount paid was not disclosed to me, based on inferences from some of the correspondence exhibited to the affidavits filed in this application, it would seem likely that the Crown paid in the neighborhood of $10,000 towards Ms Fraser ’ s legal costs for the recount. That amount is greater than costs of the recount would be calculated under Column 5 of Schedule. [ 55 ] It offends one ’ s sence of justice and fairness for the “ loser ” of a recount to receive a greater payment of costs from the Crown than the “ winner ” of a recount.

Therefore, in the unusual circumstances of this case, and in the exercise of my discretion as to costs under the practice and procedure of the Court of Queen ’ s Bench, I fix and award Ms Forsyth costs for the recount in the amount of $12,500 plus reasonable disbursements. The sum of $12,500, while greater than that under Column 5 of

Schedule C, is a reasonable sum having regard to the importance and time priority manifested by the recount, and is probably only a small amount more than was paid by the Crown to Ms Fraser. Conclusion [ 56 ] Costs of the judicial recount are awarded to Ms Forsyth in the amount of $12,500 plus reasonable disbursements, payable by the Crown. [ 57 ] Costs of this application are awarded to Ms Forsyth under Column 5 of

Schedule C of the Rules of Court, payable by the Crown . Heard on the 7 th day of March, 2013. Dated at the City of Calgary, Alberta this 25 th day of September, 2013. C.S. Brooker J.C.Q.B.A.

Appearances: Grant R. Vipond and Gordana Kostic for the Applicant/Heather Forsyth Tim Hulburt, Q.C for the Crown in Right of Alberta Ivan Bernardo for the Respondent/Applicant Wendelin Fraser Bill Shores, Q.C. for the Respondent David McIntyre, Chief Electoral Officer