CITATION: Novak v. Clarington, 2015 ONSC 342
COURT FILE NO.: 90334/14
DATE: 2015-01-16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Mary Novak, Applicant/Moving Party
AND: Municipality of Darlington and Joe Neal, Respondents
BEFORE: Justice J. Bryan Shaughnessy
COUNSEL: Jack B/ Siegel Counsel, for the Applicant
John Mascarin Counsel, for the Respondent Joe Neal
HEARD: January 14, 2015
ENDORSEMENT
[1] In this proceeding I heard a motion on January 5, 2015 wherein the Applicant sought an Order pursuant to S. 88 of the Municipal Elections Act, 1996, S.O. 1996, c.32 requiring the Municipality of Clarington to provide PDF copies of the electronic images of ballots cast in the municipal election for the office of Regional Councillor, for the Region of Durham, in the Municipality of Clarington, representing Wards 1 and 2.
[2] I have delivered a ruling on the motion dismissing the Applicant’s motion. (Novak v Municipality of Clarington 2015 ONSC 342). This endorsement then relates to the issue of costs on that motion.
[3] The Municipality of Clarington, while making submissions to assist the Court, took no position on the motion and did not attend this hearing on the issue of costs.
[4] Counsel for the Applicant advised the Court that in light of the ruling on the motion the Application for Judicial Review is abandoned. Accordingly I have made an endorsement that Mr. Siegel has indicated on the record that a Notice of Abandonment of the Application for Judicial Review will be filed.
[5] In the ruling on the motion I indicated that I would be delivering further reasons in due course. However, on reflection, and there being no objection by counsel, I am satisfied that my endorsement of January 9, 2015 sufficiently sets forth my Reasons for denying the relief sought. Accordingly I do not propose to deliver further Reasons.
[6] The Applicant submits that no costs should be awarded on this motion. Alternatively, should the submissions not be accepted in relation to a no cost award, then it is submitted that the court should award a very modest award of costs in light of all the factors detailed herein and obiter comments in the case law.
[7] Counsel for the Respondent Joe Neal submits that costs ought to be awarded in the usual course as the respondent was successful on this motion. It is submitted that the Court should consider and apply the factors detailed in Rule 57.01(1).
No Cost Award
[8] The argument advanced by the Applicant/Moving Party that no costs should be awarded and that each party should bear their own costs is summarized as follows:
(a) The motion underlying the application involves a public interest litigant and public interest litigation in relation to a candidate for office and who brought the application, in good faith, seeking a recount in an election in which the margin of victory was 3 votes.
(b) The law argued on the motion involved a novel issue which had not been previously explained. The position of the Applicant is based on Orkin, The Law of Costs, 2nd ed. (1994) as detailed in Lancaster v St. Catharines (City) Compliance Audit Committee, [2013] O.J. No. 5678 at para 144 as follows:
An action or motion may be disposed of without costs when the question involved is a new one, not previously decided by the court on the theory that there is a public benefit in having the court give a decision; or where it involves an interpretation of a new or ambiguous statute; or a new or uncertain or unsettled point of practise; or where there were no previous authoritative rulings by courts.
(c) The Applicant submits that the manner and circumstances in which the motion was brought warrants a no cost award as the objective of the motion included minimizing the resources of the Court, the Municipality and the parties. Secondly, the financial constraint on the ability to pay costs by political candidates and the effect of cost awards on candidates wishing to pursue a public interest issue. Thirdly, the application of the criteria for determining where costs should be awarded against a person who commences public interest litigation, identified by the Ontario Law Reform Commission in its Report on the Law of Standing (Toronto: Ministry of the Attorney General, 1989) as outlined in Bielli v Canada (Attorney General) [2013], F.C.J. No. 96 at para 13 ought to be applied.
[9] The Respondent’s position is that this Application and the underlying motion was not a matter of public interest litigation. It is submitted that the motion was one of a private, personal and pecuniary interest brought by a former incumbent candidate. Further, it is submitted that there was no new or novel issue of law and a plain reading of the ruling indicates that the court essentially adopted the reasoning in Goldie v Vaughan (City), [2010] ONSC 6930 to reach its decision. Finally, it is submitted that there are no special circumstances wherein costs should not be awarded. The Ontario Municipal Elections Act, 1996, S.O. 1996. C.32, Sched. at s. 67 (1) s. 69 and s 68 (4) provides that in the event of a recount the expenses incurred for the recount may be the subject matter of political fundraising by the candidates up to June 30, 2015 (in the present case).
Analysis
Is the Applicant a public interest litigant and/or is the application a matter of public interest litigation?
[10] The analysis begins first with the basic principle outlined in Incredible Electronics Inc. v Canada (Attorney General) (2006), 2006 17939 (ON SC), 80 O.R. (3d) 723 at para 63 that:
The courts 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 behavior by litigants in their conduct of the proceedings. (Citations omitted).
[11] This is not a case where the application was improperly brought or where the applicants engaged in inappropriate behaviour.
[12] As stated in Bielli v Canada (Attorney General) supra (para. 11) the Supreme Court has affirmed the importance of access to justice in public interest cases and the responsibility of the courts to issue orders that support that goal. The Bielli case (para. 13) adopts the criteria of the Ontario Law Reform Commission for determining the circumstances where costs should not be awarded against a person who commences public interest litigation.
[13] If a person is a public interest litigant, then as stated in Incredible Electronics decision supra (para 83), “special treatment should guide the exercise of my discretion.”
[14] I have been directed to the decision of the Ontario Divisional Court in Gombu v Ontario (Assistant Information and Privacy Commissioner), [2002] O.J. No. 2570 for the authority, that in a matter of general public interest no costs ought to be awarded. Counsel for the applicant, relying on the Gombu case expands his submissions beyond the private personal litigant such that he argues that costs ought not to be awarded in matters relating to what he characterized as “public interest litigation”. The Gombu decision on costs does not detail the facts. The Gombu case involved an application under the Freedom of Information legislation made by a Toronto Star reporter for an order directing the City of Toronto to disclose an electronic database regarding a municipal election. The application was allowed but no costs were awarded on the basis that it was “public interest litigation” and the issue had never been previously litigated.
[15] I was referred to other cases where the facts were much different than in the present case. In particular I was referred to the decision in Racco v Essensa (unreported) involving a provincial election wherein the reports of the election clerks on election night did not correspond to the actual official tabulation of the count by the Returning Officer on the day following the election. The hearing Judge made a specific finding that in those circumstances the recount was a matter of public interest.
[16] On the record before me I find that there was no public interest in the application/motion. I agree with the respondent’s position that the application/motion as presented related to the private interest of the Applicant to reclaim her seat through a recount process that would include a review of electronic images of some 231 “under-votes.” I find that because the application related to an election process does not elevate it to the status of public interest litigation.
[17] In the course of submissions, counsel for the respondent introduced, without objection, a copy of a letter from the applicant’s counsel dated November 20, 2014 enclosing the Notice of Application for judicial recount under s.63 of the Municipal Elections Act, 1996. There is no suggestion in this correspondence that the application was being advanced for a public interest purpose. As the Reasons on the Motion indicate there was no suggestion of procedural irregularity in the Clerk’s recount process. This was not a controverted election application. Indeed the correspondence of November 20, 2014 indicates that a motion would be brought for an order permitting the parties to obtain copies of and to inspect the disputed ballots before the date of hearing of the Judicial Review. This correspondence goes on to state that “the motion does seek costs against any party that opposes it.”
[18] I find that the applicant is not a genuine public interest litigant. I further find that this application/motion is not a matter of public interest litigation. While an election result is a matter of public interest, nevertheless this does not in of itself characterize the applicant as a public interest litigant or the issue on the motion as public interest litigation. The applicant as a candidate had a private interest in advancing the application and brought the motion in aid to overturn the election result and reclaim her office. I find, in addition thereto, that the applicant had a pecuniary interest in a successful outcome of the motion and recount.
[19] In the various cases which were presented to me for review such as the Gombu case and others the applicant had no real pecuniary or proprietary interest in the application. Such is not the case in the present matter.
[20] Therefore I dismiss this position advanced by the applicant/moving party.
Does this application /motion involve a novel issue?
[21] When the motion was argued before me I was referred to the decision of Justice Lauwers in Goldie v Brock (Township) 2010 ONSC 6930 and as would be readily discernable from my endorsement I found this decision to be most persuasive, in particular paragraphs 40-52 inclusive of the decision. I adopted the reasoning in the Goldie case as the analysis was germane to the issues on the motion notwithstanding that I was dealing with an application under s.88 and s.63 of the Municipal Elections Act, 1996 whereas Goldie was dealing with the issue of manual inspection of ballots and s. 58 (1) of the Act. The discussion of the “under-vote” in the election process was thoroughly examined in the Goldie decision as well the underlying policy, principles and case law. While there is scant case law in relation to s.88, I find that the decision on the motion did not involve a novel point of law with a public benefit or involve an interpretation of a new or ambiguous statute or a new or uncertain or unsettled point of practise. Accordingly the arguments advanced by the applicant on this ground fail.
Are there circumstances in this case in relation to bringing a motion which mitigate against a cost award?
[22] The applicant submits that the resources of the Court, the Municipality, and the parties were spared by the motion whereas a judicial recount would have required voting machines and tabulators to be transported to Court for a full hearing of the issues. However this argument ignores that the “under-votes” could not have formed part of the judicial recount process. I will acknowledge that the resources of the Municipality were significantly reduced by the process of the motion to determine the issue of the “under-vote” issue. However, the true nature of the motion was to gain access to the electronic images of the “under-votes” and then hopefully to overturn the election result at the judicial recount. The fact that the motion decision ended the application for a judicial recount is a by-product result, but it was not the intended purpose of the motion.
[23] The fact remains that the applicant brought a motion to reopen the election process without any foundation supporting such an application. The respondent had to respond to the application which involved retaining counsel at some expense. This factor has to be weighed in determining a cost award. Further, as Counsel for the applicant candidly acknowledged and the correspondence of November 20, 2014 indicates, costs would have been pursued if the applicant had been successful on the motion.
{24] In the current regime of municipal election campaign financing the expenses of an election recount enables both the applicant and respondent to seek financial contributions up to June 30, 2015, to offset the actual allowable expenses in relation to a recount. I reject the submission that an award of cost would have deleterious effect on the electoral process. While the costs of a recount including the costs of the candidates were mandated by the Municipal Elections Act, R.S.O. 1990, c.M.53 nevertheless the legislature amended the Act incorporating the present regime outlined above.
[25] In politics, as in life, victory has a hundred fathers but defeat is an orphan. Counsel for the applicant suggests that the respondent will have a much easier time in obtaining financial contributions than the applicant in relation to the cost of the recount. However, that is speculative and is not a factor that I am taking into consideration in assessing costs.
[26] There are not any special circumstances in this matter which I find would be a basis to not award costs to the successful party on the motion.
Conclusion
[27] I reject the grounds advanced by the Applicant for an order that no costs be awarded. I find that the usual regime of an assessment of costs applying the factors under Rule 57.01 (1) should apply. I find that the respondent was successful on the motion and therefore is entitled to an award of costs.
Bill of Costs
[28] The respondent has submitted a bill of costs wherein the sum of $6,003.85 is claimed plus an additional sum of $1,000 for the attendance on January 14, 2015 to make submissions on costs.
[29] Applying the factors under Rule 57.01 I find that there is no dispute relating to the experience of counsel or the contents of the bill of costs. I do not find that the proceedings were unduly complicated. The issues were important to the parties.
[30] Costs are sought on a partial indemnity scale. I find that the amount of preparation is inordinately high having regard to the scarcity of case law on point. The Counsel fee for attendance on the motion is claimed in the amount of $600 yet the amount claimed on the cost attendance is $1,000. I am required to apply the principle of proportionality and what a reasonable litigant might expect to pay in costs in not succeeding on the motion.
[31] After considering all the factors I award costs on a partial indemnity scale in the amount of $5,000.00 all-inclusive payable by the applicant to the respondent Joe Neal within 60 days.
Justice J. Bryan Shaughnessy
Date: January 16, 2015