T-616-12 LEANNE BIELLI Applicant v. ATTORNEY, 2013 FC 953

Date: 20130916 Docket: T-616-12 T-619-12 T-620-12 T-621-12 T-633-12 T-634-12 T-635-12 Citation: 2013 FC 953 Ottawa , Ontario , September 16, 2013 PRESENT: The Honourable Mr. Justice Mosley BETWEEN: T-616-12 LEANNE BIELLI Applicant and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), URMA ELLIS (RETURNING OFFICER FOR DON VALLEY EAST), JOE DANIEL, YASMIN RATANSI, MARY TRAPANI HYNES, AKIL SADIKALI KIDD Respondents AND BETWEEN: T-619-12

SANDRA MCEWING AND BILL KERR Applicants and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), JOHANNA GAIL DENESIUK (RETURNING OFFICER FOR WINNIPEG SOUTH CENTRE), JOYCE BATEMAN, ANITA NEVILLE, DENNIS LEWYCKY, JOSHUA MCNEIL, LYNDON B. FROESE, MATT HENDERSON Respondents AND BETWEEN: T-620-12 KAY BURKHART Applicant and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), DIANNE CELESTINE ZIMMERMAN (RETURNING OFFICER FOR SASKATOON-ROSETOWN-BIGGAR), KELLY BLOCK, LEE REANEY, VICKI STRELIOFF, NETTIE WIEBE Respondents AND BETWEEN: T-621-12 JEFF REID Applicant

and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), LAUREL DUPONT (RETURNING OFFICER FOR ELMWOOD-TRANSCONA), JIM MALOWAY, ILONA NIEMCZYK, LAWRENCE TOET, ELLEN YOUNG Respondents AND BETWEEN: T-633-12 KEN FERANCE AND PEGGY WALSH CRAIG Applicants and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPISSING-TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA Respondents AND BETWEEN: T-634-12 YVONNE KAFKA Applicant

and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), ALEXANDER GORDON (RETURNING OFFICER FOR VANCOUVER ISLAND NORTH), JOHN DUNCAN, MIKE HOLLAND, RONNA-RAE LEONARD, SUE MOEN, FRANK MARTIN, JASON DRAPER Respondents AND BETWEEN: T-635-12 THOMAS JOHN PARLEE Applicant and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), SUSAN J.

EDELMAN (RETURNING OFFICER FOR YUKON), RYAN LEEF, LARRY BAGNELL, KEVIN BARR, JOHN STREICKER Respondents REASONS FOR ORDER AND ORDER [ 1 ] The Court issued judgment on May 23, 2013 in files T-619-12, T-620-12, T-621-12, T-633-12, T-634-12 and T-635-12 dismissing applications to annul the results of the 2011 General Election in six ridings won by the respondent Members of Parliament Joyce Bateman, Kelly Block, Lawrence Toet, Jay Aspin, John Duncan and Ryan Leef. [ 2 ] In addition to dismissing the applications, the Court awarded the respondent Members of Parliament costs for the hearing in an amount to be fixed in accordance with the directions given in the reasons for judgment and awarded the applicants costs for the motions in which they were successful on a solicitor and client basis.

The other responding parties were to bear their own costs.

[3] A seventh application, in file T-616-12, was dismissed on October 26, 2012 with costs reserved to the applications judgeupon the disposition of the other applications. [4] In the Reasons for Judgment (2013 FC 525) the Court made the following comments pertaining to the question of costs: 259 The right of citizen electors to seek to annul election results that they reasonably believe to be tainted by fraud is, in my view, amatter of high public interest and analogous to Charter litigation. A concern that has frequently been raised is that such litigation shouldnot be beyond the reach of the ordinary citizen.

The courts have gone so far as to require that a portion of the costs of such cases be paidby the opposing successful parties: M v H, (ON SC), [1996] OJ No 2597 (QL) (Ct J (Gen Div)) at paras 17, 30;Lavigne, above, at para 106. 260 I am mindful of the fact that in this instance the applicants have received guarantees of indemnification by a non-governmentalorganization which has been raising funds for that purpose.

But it is also apparent that the respondent MPs are supported by theresources of the party to which they belong, resources which are underwritten by taxpayers. 261 These proceedings have had partisan overtones from the outset. That was particularly evident in the submissions of the respondentMPs.

In reviewing the procedural history and the evidence and considering the arguments advanced by the parties at the hearing, it hasseemed to me that the applicants sought to achieve and hold the high ground of promoting the integrity of the electoral process while therespondent MPs engaged in trench warfare in an effort to prevent this case from coming to a hearing on the merits. 262 Despite the obvious public interest in getting to the bottom of the allegations, the CPC made little effort to assist with theinvestigation at the outset despite early requests.

I note that counsel for the CPC was informed while the election was taking place thatthe calls about polling station changes were improper. While it was begrudgingly conceded during oral argument that what occurred was“absolutely outrageous”, the record indicates that the stance taken by the respondent MPs from the outset was to block these proceedingsby any means. 263 The preliminary stages were marked by numerous objections to the evidence adduced by the applicants.

The respondent MPssought to strike the applications on the ground that they were frivolous and vexatious, to have them dismissed as champertous and torequire excessive security for costs, in transparent attempts to derail this case. 264 There have been interlocutory decisions made by the case management prothonotaries during the proceedings with related costsawards. The applicants are, in my view, entitled to be awarded costs on each of the pre-hearing motions in which they have beensuccessful on a solicitor and client basis to be paid jointly and severally by the respondent MPs.

This applies also to the champertymotion and the motion to exclude the Graves evidence which was brought initially in relation to the Don Valley East application andthen deemed to apply to each of the other applications. 265 Apart from the motion costs, and with the above considerations in mind, I am inclined to order a modest fixed amount for the costsof the hearing. Absent an agreement as to the amount, the respondent MPs may make written submissions limited to ten pages withinthirty days of the date of this judgment.

The applicants will then have fifteen days in which to respond and the respondent MPs anotherfive days to reply. I will then award a fixed sum in an amount I consider appropriate given the foregoing comments. The otherrespondents will bear their own costs. [5] The respondent Members of Parliament submit that they should be awarded compensation in the amount of $120,000 basedon the lowest tariff rate, or $60,000 if based on one-half of the lowest tariff rate, for the costs of preparing and filing written submissions,and the cost of two lawyers preparing for one week and attending at court.

They also seek disbursements of $235,907.56. The largestpart of the claim for disbursements relates to payment for the services of an expert witness, Dr. Ruth Corbin, in the amount of$166,363.79. The bulk of this would have been incurred prior to the hearing. Disbursements claimed for the hearing, without furtherexplanation, are $54,202.35.

The balance relates to travel and accommodation costs prior to the hearing ($9,134.84), cross examinationtranscripts ($6,064.71), delivery costs ($112.49) and a driver’s license search ($29.38). [6] Noting that the applicants have not served any submissions concerning their costs on the motions with respect to which theywere successful, the respondent Members of Parliament submit that their costs ought to be awarded and offset against the costs to beawarded to the applicants on a solicitor and client basis for their success on the motions.

The Court has no basis at present, apart from theamount of time spent on the motions at the hearing, upon which to determine what those costs may be.

[7] The applicants submit that in making a determination as to costs, access to justice should be the Court’s paramountconsideration, recognizing the public interest nature of the case and the principle that the ability of citizens to bring such matters beforethe courts should not be deterred. They ask that the Court consider whether, in light of its findings of fact in this matter and thefundamental constitutional issue at stake, this is an appropriate case for the Court to decline to award any costs.

In the alternative, theapplicants submit, that should the Court remain inclined to award “a modest fixed amount for the cost of the hearing” the amount shouldbe small and considered modest from the point of view of individual citizens so as not to deter electors from seeking to defend theirdemocratic franchise. [8] With respect to the quantum of costs proposed by the respondent Members of Parliament, the applicants submit that theamounts claimed are unjustified and inconsistent with the modest fixed amount yardstick.

By their calculation, total legal fees under theColumn I of Tariff B guidelines would be no more than $7,995.Any award for disbursements should exclude the $54, 202.35 claimed for “hearing costs” and the entire amount claimed as expert witness costs in light of the Court’s findings with regardto the nature and presentation of Dr.

Corbin’s evidence and the lack of any detailed account upon which the reasonableness of the claimcould be assessed. [9] As stated by Justice Paul Perell of the Ontario Superior Court of Justice in Incredible Electronics Inc v Canada (AttorneyGeneral), (ON SC), [2006] 80 OR (3d) 723 [Incredible Electronics] at para 63: As a matter of general principle, costs compensate the successful litigant for the expense to which he or she has been put by the suithaving been improperly resisted or improperly brought: Ryan v. McGregor, (ON CA), [1925] O.J. No. 126, 58 O.L.R.213 (App. Div.).

The court's discretion to award costs is designed to further three fundamental purposes in the administration of justice:(1) to indemnify successful litigants for the costs of litigation, although not necessarily completely; (2) to encourage settlements; and (3)to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings: British Columbia (Minister ofForests) v. Okanagan Indian Band, 2003 SCC 71 , [2003] 3 S.C.R. 371, [2003] S.C.J. No. 76; Fong v. Chan (1999), (ON CA), 46 O.R. (3d) 330, [1999] O.J. No. 4600 (C.A.); Fellowes, McNeil v.

Kansa General International Insurance Co.(1997), (ON SC), 37 O.R. (3d) 464, [1997] O.J. No. 5130 (Gen. Div.); Skidmore v. Blackmore,(BC CA), [1995] B.C.J. No. 305, 122 D.L.R. (4th) 330 (C.A.). [10] This is not a case in which the applications were improperly brought or where the applicants engaged in inappropriatebehaviour in their conduct of the proceedings. In contrast, as noted above, I found that the respondent MPs “engaged in trench warfare inan effort to prevent this case from coming to a hearing on the merits” and adopted a stance aimed at blocking the applications “by anymeans”.

Settlement was not at any time a realistic outcome in light of the nature of the allegations and the evidence that attempts hadbeen made by parties unknown to interfere with the democratic process. [11] The Supreme Court has affirmed the importance of access to justice in public interest cases and the duty of the courts to craftcosts orders that support and promote this goal.

As stated by Justice Lebel for the majority in British Columbia (Minister of Forests) vOkanagan Indian Band 2003 SCC 71, [2003] 3 SCR 371, [2003] SCJ No 76 (QL), at para 27, courts should exercise the power to awardcosts in a manner that: …helps to ensure that ordinary citizens have access to the justice system when they seek to resolve matters of consequence to thecommunity as a whole. [12] Rule 400(1) of the Federal Courts Rules, SOR/98-106, confers full discretionary power on the Court to determine the amountand allocation of costs.

Rule 400(3) provides a list of factors the Court may consider in awarding costs, including: the result of theproceeding; the importance and complexity of the issues, the amount of work involved; whether the public interest in having theproceedings litigated justifies a particular award of costs; and any conduct that tended to unnecessarily lengthen the duration of theproceeding. Rule 400(4) allows the Court to award a lump sum in lieu of, or in addition to, any assessed costs. Rule 400(6)(

c) providesthat the Court's discretion includes the power to "award all or part of costs on a solicitor-and-client basis." [13] Criteria for determining the circumstances where costs should not be awarded against a person who commences publicinterest litigation were identified by the Ontario Law Reform Commission in its Report on the Law of Standing (Toronto: Ministry of theAttorney General, 1989):

a) The proceeding involves issues the importance of which extends beyond the immediate interests of the parties involved.

b) The person has no personal, proprietary or pecuniary interest in the outcome of the proceeding, or, if he or she has an interest, it clearlydoes not justify the proceeding economically.

c) The issues have not been previously determined by a court in a proceeding against the same defendant.

d) The defendant has a clearly superior capacity to bear the costs of the proceeding.

e) The plaintiff has not engaged in vexatious, frivolous or abusive conduct. [14] These factors have been approved in a number of Canadian jurisdictions including the Federal Court: see Harris v Canada,2001 FCT 1408 at para 222; Guide Outfitters Association v British Columbia (Information and Privacy Commissioner), 2005 BCCA 368at para 8; Miller v Boxall, 2007 SKQB 9 at para 5; Hastings Park Conservancy v Vancouver (City), 2007 BCSC 147 at para 4; Victoria(City) v Adams, 2009 BCCA 563 [Victoria (City)] at para 185; R v Griffin, 2009 ABQB 696 at para 183; Georgia Strait Alliance vCanada (Minister of Fisheries and Oceans) [2011] FCJ No 587 (QL) (TD) at para 3.11, appeal allowed in part but not on the question ofcosts, 2012 FCA 40 Georgia Strait Alliance. [15] In the Georgia Strait Alliance decision, Justice James Russell concluded at paragraph 3.14 that an order for costs on asolicitor and client basis was justified because of the “unjustifiably evasive and obstructive approach” undertaken by the respondents inthe case that “unnecessarily lengthened and complicated the proceedings”.

Similarly, in this matter I concluded that an order for costs ona solicitor and client basis against the respondent Members of Parliament was justified because of the manner in which they haddefended against the applications including the bringing of motions that unnecessarily lengthened and complicated the proceedings. [16] Adapting the principled approach set out in the Ontario Law Reform Commission report to any case in which the court wasbeing asked to depart from the normal rules as to costs, the British Columbia Court of Appeal distilled the test into four elements atparagraph 188 of Victoria (City), above: 1.

The case involves matters of public importance that transcend the immediate interests of the named parties, and which [had] notbeen previously resolved; 2. The [claimant] has no personal, proprietary or pecuniary interest in the outcome of the litigation that would justify the proceedingeconomically; 3. [The party opposing the claimant] has a superior capacity to bear the cost of the proceeding; and 4.

The [claimant] has not conducted the litigation in an abusive, vexatious or frivolous manner. [17] According to Perell J. in Incredible Electronics, above, where a litigant is seeking relief from adverse costs liability thesefactors should be resolved by a single question namely, whether the party is a genuine public interest litigant. Justice Perell stated atparagraph 83: In my opinion, in the case at bar, the proposition that public interest litigation requires special treatment should guide the exercise of mydiscretion.

Put differently, in my opinion, the applicants should not be subject to the normal two-way costs regime if they can satisfy thecourt that they are special interest litigants. [18] I am satisfied that the applicants in this matter were genuine public interest litigants motivated by a higher purpose. Theseproceedings fell squarely within the criteria endorsed by in Harris and the other decisions cited above. The applications involved issues,the importance of which extended beyond the immediate interests of the parties involved.

The applicants had no personal, proprietary orpecuniary interest in the outcome that would have justified the proceedings economically. They stood to gain nothing other than thevindication of their electoral rights. The issues had not been previously determined by a court in proceedings against the same defendantsand the applicants did not engage in vexatious, frivolous or abusive conduct.

This was not a case of unwarranted election challenges.There was a factual foundation, albeit one which I ultimately found fell short of meeting the statutory threshold required to annul theelection results in their ridings. [19] The question of whether the applicants or the respondent MPs have a clearly superior capacity to bear the costs of theproceedings is a neutral factor in this matter. Much was made of the involvement of a third party organization, the Council of Canadians,in raising funds to indemnify the applicants from an adverse costs award.

As I noted, however, at para 260 of the Reasons for Judgment,it was also apparent that the respondent Members of Parliament were supported by the extensive resources of the political party to whichthey belong - resources which are underwritten by Canadian taxpayers. That argument was not challenged during the hearing nor wasanything provided to me in the costs submissions to call it into question. [20] The respondent Members of Parliament are, therefore, in a position analogous to that of government respondents anddefendants who have not been awarded costs in cases where they have been successful in the result.

See for example Harrison vUniversity of British of Columbia, (BC SC), [1986] BCJ No 2201 (QL), 30 DLR (4th) 206 (SC), additional reasons oncosts (BC SC), [1986] BCJ No 1172 (QL), [1987] 2 WWR 378 (SC), rev’d (BC CA), [1988] BCJ

No 13 (QL), 21 BCLR (2d) 145 (CA), aff’d (SCC), [1990] 3 SCR 451, [1990] SCJ No 123 (QL); Canadian Foundationfor Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4, [2004] 1 SCR 76; Sierra Club of Western Canada v BritishColumbia (Attorney General), (BC SC), [1991] BCJ No 2613 (QL), 83 DLR (4th) 708 (SC). [21] This is not a case such as Opitz v Wrzesnewskyj, 2012 SCC 55, [2012] SCJ No 55 (QL) [Opitz], where a losing candidatechallenged an election result based on clerical errors in voter registration. In that case, the parties bore their own costs at first instanceand on the appeal.

Here, the allegations were far more serious, being of electoral fraud. It would be incongruous, in my view, to impose agreater burden upon the applicants who stepped forward to present those allegations, than that considered appropriate in a contestbetween two candidates in which the challenger had clear personal interests, including an economic interest, in the outcome. [22] The applicants have argued that to impose any significant measure of costs against them would have a chilling effect onelectors who might be the victims of voter fraud in the future. I agree.

The fact that a third party has stepped forward to indemnify theapplicants in this case can not be counted upon as a solution for any case that might arise again. The respondent Members of Parliamenthad the financial support of a major political party to conduct an aggressive no holds barred defence against the applications and are notin jeopardy of absorbing the costs themselves.

I note also that Parliament has seen fit to fix a modest amount ($1,000) as the security forcosts to be paid when an election challenge is filed to discourage nuisance applications. [23] I do not accept the respondent MPs’ contention that a ruling that unsuccessful applicants should be relieved of the obligationto pay costs would clearly increase the “litigation margin”, of which the Supreme Court warned in Opitz, with a resulting decrease ofconfidence by the public in the finality of elections.

The Canada Elections Act, LC 2000 c.9 provides a mechanism in s 531(1) for theearly dismissal of applications that are “vexatious, frivolous or not made in good faith”. [24] Having considered the matter further, I have reached the conclusion that the “modest fixed amount for the costs of thehearing” that should be awarded the respondent MPs is the amount paid into court for the seven applications, $7,000, plus disbursementsof $6,206.

I make no award for the other costs incurred by the respondent MPs in preparation for and conduct of the hearing. [25] In their reply submissions, the respondent MPs noted that it was to be expected that their much higher costs on a lower scaleand the applicants’ much lower costs on a higher (solicitor client) scale would roughly balance each other. That was the Court’s intent.Given the conclusions reached above, there is no longer any need to consider the award of solicitor and client costs to the applicants fortheir success on the motions.

ORDER THIS COURT ORDERS that: 1. the respondent Members of Parliament are awarded costs of $7,000 for the hearing and disbursements of $6,206. 2. the amounts paid into court by the applicants may be released to the respondent Members of Parliament in partialpayment of the costs award; and 3. the Court will not determine an amount of costs to be paid on a solicitor and client basis to the applicants for theirsuccess on the motions in this matter. “Richard G. Mosley” Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: T-616-12, T-619-12 (T-620-12, T-621-12, T-633-12, T-634-12, T-635-12) STYLE OF CAUSE: LEEANNE BIELLI and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), URMA ELLIS (RETURNING OFFICER FOR DON VALLEY EAST), JOE DANIEL, YASMIN RATANSI, MARY TRANPANI HYNES, AKIL SADIKALI, RYAN KIDD AND BETWEEN: SANDRA MCEWING AND BILL KERR and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), JOHANNA GAIL DENESIUK RETURNING OFFICER FOR WINNIPEG SOUTH CENTRE) JOYCE BATEMAN, ANITA NEVILLE, DENNIS LEWYCKY, JOSHUA MCNEIL, LYNDON B. FROESE, MATT HENDERSON AND BETWEEN KAY BURKHART and ATTORNEY GENERAL OF CANADA,

MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), DIANNE CELESTINE ZIMMERMAN (RETURNING OFFICER FOR SASKATOON- ROSETOWN-BIGGAR), KELLY BLOCK, LEE REANEY, VICKI STRELIOFF, NETTIE WIEBE AND BETWEEN JEFF REID and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), LAUREL DUPONT (RETURNING OFFICER FOR ELMWOOD-TRANSCONA), JIM MALOWAY, ILONA NIEMCZYK, LAWRENCE TOET, ELLEN YOUNG AND BETWEEN KEN FERANCE AND PEGGY WALSH and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), DIANNE JAMES MALLORY (RETURNING OFFICER FOR NIPISSING- TIMISKAMING), JAY ASPIN, SCOTT EDWARD DALEY, RONA ECKERT, ANTHONY ROTA AND BETWEEN YVONNE KAFKA and

ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), ALEXANDER GORDON (RETURNING OFFICER FOR VANCOUVER ISLAND NORTH), JOHN DUNCAN, MIKE HOLLAND, RONNA-RAE LEONARD, SUE MOEN, FRANK MARTIN, JASON DRAPER AND BETWEEN THOMAS JOHN PARLEE and ATTORNEY GENERAL OF CANADA, MARC MAYRAND (THE CHIEF ELECTORAL OFFICER), SUSAN J. ELELMAN (RETURNING OFFICER FOR YUKON), RYAN LEEF, LARRY BAGNELL, KEVIN BARR, JOHN STREICKER PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: June 25, 2013 (costs submissions in writing) REASONS FOR ORDER AND ORDER: MOSLEY J. DATED: September 16, 2013 APPEARANCES :

Steven Shrybman Peter Engelmann Benjamin Piper FOR THE APPLICANTS Barbara McIsaac Marc Chenier FOR THE RESPONDENT (Marc Mayrand, Chief Electoral Officer) Arthur Hamilton Ted Frankel Jeremy Martin FOR THE RESPONDENT (Responding Parliamentarians) W.

Thomas Barlow Nick Shkordoff FOR THE RESPONDENT (Responding Market Group Inc) SOLICITORS OF RECORD : SACK GOLDBLATT MITCHELL LLP Ottawa , Ontario FOR THE APPLICANTS BORDEN LADNER GERVAIS LLP Ottawa , Ontario FOR THE RESPONDENT (Marc Mayrand, Chief Electoral Officer) CASSELS, BROCK & BLACKWELL LLP Toronto , Ontario FOR THE RESPONDENT (Responding Parliamentarians) FASKEN MARTINEAU DUMOULIN LLP Toronto , Ontario FOR THE RESPONDENT (Responding Market Group Inc)