Costs Endorsement

COURT FILE NO.: CV-11-429669
DATE: 20120625

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BORYS WRZESNEWSKYJ
Applicant

AND:

ATTORNEY GENERAL OF CANADA, MARC MAYRAND
(THE CHIEF ELECTORAL OFFICER), ALLAN SPERLING
(RETURNING OFFICER, ETOBICOKE CENTRE), TED OPITZ,
ANA MARIA RIVERO, SARAH THOMPSON and KATRINA ZORICIC
Respondents

BEFORE: Mr. Justice Lederer

COUNSEL:
Gavin Tighe & Stephen Thiele , for the Applicant

David Di Paolo & Alessandra Nosko , for Marc Mayrand (The Chief Electoral Officer) & Allan Sperling (Returning Officer, Etobicoke Centre), Respondents

W. Thomas Barlow & Nicholas Shkordoff , for Ted Opitz, Respondent

COSTS ENDORSEMENT

[ 1 ] On May 2, 2011, there was a federal election in Canada. In the electoral district of Etobicoke Centre, after a judicial recount, it appeared that Borys Wrzesnewskyj had lost by twenty-six votes. Concerned that “there were irregularities... that affected the results of the election”, he brought an application contesting the election (see: Canada Elections Act, S.C. 2000, c. 9 s. 524). As a result of the decision rendered in respect of that application, seventy-nine ballots were set aside. This was more than the plurality established by the judicial recount and the election was declared null and void.

[ 2 ] During their submissions on the application, each of the parties said this was a matter that concerned the public interest. I understand this to mean that it transcends personal interests and involves our society at large.

[ 3 ] Borys Wrzesnewskyj seeks his costs of the application. He asks for an award of $90,000. No Bill of Costs or Costs Outline was presented. The costs sought are based on a per diem of $5,000 per day for each of two lawyers (8 days of hearing x $10,000 per day) for a fee of $80,000, plus $10,000 to cover a portion of the disbursements. No objection was taken to this amount and, in the circumstances, it seems reasonable to presume that the actual costs were considerably higher.

[ 4 ] It is not the value of the costs requested that is in issue. Rather, it is the basis on which they are claimed and the party from whom they are requested that is of concern.

[ 5 ] Borys Wrzesnewskyj bases his claim on the understanding that he was the successful party. Without going further, this seems reasonable. While, in the end, costs are in the discretion of the court, it is generally understood that they will follow the event. The problem is that, if costs are to be awarded to a successful party, there ought to be an unsuccessful party who is expected to pay them.

[ 6 ] Ted Opitz was the candidate who, following the election and the judicial recount, was declared to have won the vote in Etobicoke Centre. Now, like Borys Wrzesnewskyj, subject to any appeal, Ted Opitz will have to face a by-election. As the submissions made on behalf of Borys Wrzesnewskyj acknowledge and as the reasons on the application note, Ted Opitz did nothing wrong. He was not, in any sense, the cause of, or implicated in, the setting aside of any of the seventy-nine ballots. He is in a similar position as Borys Wrzesnewskyj. As counsel for Ted Opitz proposed in his submissions, Ted Opitz has the same potential claim for costs as Borys Wrzesnewskyj. Ted Opitz was not an unsuccessful party. Borys Wrzesnewskyj does not seek costs from Ted Opitz.

[ 7 ] Borys Wrzesnewskyj asks the court to direct Elections Canada to pay his costs. As counsel for Elections Canada noted, both on the application and here, the Chief Electoral Officer did and had to maintain a position of neutrality. It is not for the person holding this office to take a position that favours one candidate to the detriment of others. The Chief Electoral Officer advised the court of policy considerations material to the matters in issue and provided an understanding of the legislative framework that governs elections in Canada. Elections Canada cannot be characterized as an unsuccessful party. This is underscored by the submissions made on behalf of Borys Wrzesnewskyj. It is not said that the Chief Electoral Officer was unsuccessful. Rather, costs are requested on behalf of Borys Wrzesnewskyj because he was “required to undertake the work of Elections Canada”. There is more than a little hubris in this. The Canada Elections Act does not authorize the Chief Electoral Officer to bring an application and have an election declared null and void. Moreover, the decision noted that the election was carried out “by responsible public officials and well-intentioned individuals who were motivated by nothing less than a desire to do the job properly.” All parties acknowledged that, in circumstances where, over thirty-seven days, 235,867 people are hired, trained and run a national election, errors will be made. This is not a question of blame, but in the nature of what these people were asked to do. The system has checks. An application to set aside an election is one of them. In this case, the lessons to be learned are not who is at fault, but how to improve the system so the same mistakes are not made again.

[ 8 ] In making the application for costs, counsel for Borys Wrzesnewskyj relied on a settlement offer that is said to have been contained in a letter, dated October 19, 2011, written to the other parties to the application. Its acceptance would have required the Chief Electoral Officer to declare the election null and void and agree to hold a by-election within six months. The Chief Electoral Officer is without authority to do either of these things. Only the Court can declare an election null and void and it is the Governor in Council that is responsible for making an Order that a by-election be held. The offer to settle was not capable of acceptance and cannot contribute to the issue of costs.

[ 9 ] 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.

[ 10 ] There will be no order for costs. In this case, each party should be responsible for its own costs.

[ 11 ] At the outset of the application, Borys Wrzesnewskyj was required to pay $1,000 as security for costs. He requests that this money be returned. There is no reason why this should not occur.

[ 12 ] The $1,000 paid by Borys Wrzesnewskyj is ordered released to him.

LEDERER J.

Date: 20120625