10.29: General rule for payment of litigation costs
10.33: Court considerations in making costs award

Case Summary

A Provincial General Election was held in Alberta and the result indicated that Ms. Heather Forsyth of the Wildrose Alliance Party had obtained the largest number of votes, followed by Ms. Wendelin Fraser of the Progressive Conservative Party. The number of spoiled ballots in this case exceeded the number of ballots by which there was victory. Ms. Fraser requested a judicial recount on the basis that the votes had not properly been accepted, and the Certificate of Return did not accurately record the number of votes. The recount confirmed Ms. Forsyth’s victory. The Court directed that the Parties resolve the matter of Costs. The Parties were unable to resolve this issue and Ms. Forsyth made an Application for a Costs award in relation to the judicial recount.

The Court completed an analysis of s. 148.1(1) of the Election Act in determining who should pay the Costs. The Court reviewed the factors set out in s. 148.1 (1) and determined that an award for Costs was a fact-specific endeavor. The Court also noted the general rule, Rule 10.29(1), that the successful Party to an Application is entitled to a Costs award against the unsuccessful Party. Rule 10.29(1)(d) provides an exception to this general rule where there is legislation governing who is to pay Costs. In this case, the Court acknowledged that ensuring public confidence in a fair and transparent electoral system outweighed the consideration that Ms. Fraser was personally invested in the outcome. The Court also noted that the margin of victory was very minimal and that there was no evidence that Ms. Fraser was taking the process lightly. Further, there was no indication that Ms. Fraser seemed to be motivated by anything other than a desire to ensure the voting record accurately reflected the ballots cast for each candidate. The Court held that the Crown would bear the Costs of the Application pursuant to s.148.1(1)(b)(ii) of the Elections Act.

The Court then determined the quantum of Costs to be paid by the Crown, noting that Rule 10.33(1) of the Rules of Court allows the Court to consider a variety of factors in making a Costs determination. The Court found that solicitor-client Costs were not justified, and that a party-party Costs award was the correct approach. The Court determined that the appropriate Costs award given the facts would be calculated on single Schedule C Column 5, plus disbursements. However, in this particular case, the Crown had already negotiated a settlement with Ms. Fraser on Costs that the Court estimated to be around $10,000, an amount greater than the Costs for the recount that would be calculated under Column 5. The Court stated that it would offend one’s sense of justice and fairness that the “loser” of a recount would receive a greater payment than the “winner”. Thus, in exercising its discretion, the Court ordered the Crown to pay a sum of $12,500 plus reasonable disbursements for the judicial recount, and the Costs under Column 5 of Schedule C for the Application.

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