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Conservatives fail to win “outrageous” costs in latest election fraud court ruling

Federal Court Justice Richard Mosley has ruled that the applicants in the recent high-profile election fraud legal challenge will not have to pay the Conservative Party $355,907 in legal costs, ruling on a reimbursement request that was filed this past June.

The Tory MPs wanted the nine individuals who launched the case to pay for the Conservatives’ lawyers – even though they were the ones who needlessly drove up the cost by bringing multiple procedural motions to keep the case from being heard. At the time of his ruling, the judge called these delaying tactics “trench warfare.”

“I’m pleased that the judge recognized the merits of our case and the integrity which our lawyers, the Council of Canadians and all the applicants brought forward,” said Peggy Walsh Craig, one of the applicants in the legal challenge. “And the lack of integrity and disrespect for democracy by the Conservative Party speaks volumes for all Canadians.”

Rather than the $355,907 the Conservative MPs requested, the judge awarded them a modest amount – the $1,000 security deposit for each application plus $6,206 in disbursements, for a total of $13,206. The applicants had previously been awarded $18,000 in costs on some of the procedural motions.

“This was a blatantly greedy claim by the by the Conservative Party. As a result, they got less than 5% of what they asked for in yet another significant repudiation of the party’s questionable legal tactics and sense of entitlement,” said Garry Neil, Executive Director of the Council of Canadians, which supported the applicants’ case. “In this ruling on costs, the judge made sure that such trench warfare was not rewarded. But we’re disappointed that the Conservative MPs weren’t punished for their attempts to shut down the case.”

In his decision, the judge noted that “the applicants in this matter were genuine public interest litigants motivated by a higher purpose” who “stood to gain nothing other than the vindication of their electoral rights.”

“Thanks to donations from thousands of generous Canadians, vindication is exactly what the nine individual applicants received,” said Neil. “It was in the original ruling that found that widespread voter suppression took place and that the likely source of the data used to perpetrate this fraud was the Conservative Party database. It’s in this latest decision rebuking the Conservative MPs’ outrageous demand for costs.”

The Council of Canadians has launched a petition calling for a public inquiry into the 2011 election fraud and electoral reform legislation that would put a stop to election fraud.

“We need electoral reform legislation with real teeth to make sure something like this never happens again,” said Neil.

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(The full decision can be read here)

[10] This is not a case in which the applications were improperly brought or where the applicants engaged in inappropriate behaviour in their conduct of the proceedings. In contrast, as noted above, I found that the respondent MPs “engaged in trench warfare in an effort to prevent this case from coming to a hearing on the merits” and adopted a stance aimed at blocking the applications “by any means”. Settlement was not at any time a realistic outcome in light of the nature of the allegations and the evidence that attempts had been made by parties unknown to interfere with the democratic process.

[15] In the Georgia Strait Alliance decision, Justice James Russell concluded at paragraph 3.14 that an order for costs on a solicitor and client basis was justified because of the “unjustifiably evasive and obstructive approach” undertaken by the respondents in the case that “unnecessarily lengthened and complicated the proceedings”. Similarly, in this matter I concluded that an order for costs on a solicitor and client basis against the respondent Members of Parliament was justified because of the manner in which they had defended against the applications including the bringing of motions that unnecessarily lengthened and complicated the proceedings.

[18] I am satisfied that the applicants in this matter were genuine public interest litigants motivated by a higher purpose. These proceedings 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 or pecuniary interest in the outcome that would have justified the proceedings economically. They stood to gain nothing other than the vindication of their electoral rights. The issues had not been previously determined by a court in proceedings against the same defendants and 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 the election 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 the proceedings 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 which they belong – resources which are underwritten by Canadian taxpayers. That argument was not challenged during the hearing nor was anything provided to me in the costs submissions to call it into question.

[22] The applicants have argued that to impose any significant measure of costs against them would have a chilling effect on electors who might be the victims of voter fraud in the future. I agree. The fact that a third party has stepped forward to indemnify the applicants in this case can not be counted upon as a solution for any case that might arise again. The respondent Members of Parliament had the financial support of a major political party to conduct an aggressive no holds barred defence against the applications and are not in jeopardy of absorbing the costs themselves. I note also that Parliament has seen fit to fix a modest amount ($1,000) as the security for costs 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 obligation to pay costs would clearly increase the “litigation margin”, of which the Supreme Court warned in Opitz, with a resulting decrease of confidence by the public in the finality of elections. The Canada Elections Act, LC 2000 c.9 provides a mechanism in s 531(1) for the early 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 the hearing” that should be awarded the respondent MPs is the amount paid into court for the seven applications, $7,000, plus disbursements of $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 scale and 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 for their success on the motions.