McEwing et al. v. Canada (Attorney General) et al., (2013) 439 F.T.R. 149 (FC)

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Mosley, J.
• Date: 16 September 2013
• Citation: (2013), 439 F.T.R. 149 (FC),2013 FC 953
• Court: Federal Court (Canada)

McEwing v. Can. (A.G.) (2013), 439 F.T.R. 149 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. SE.018

Leanne Bielli (applicant) v. 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)

(T-616-12)

Sandra McEwing and Bill Kerr (applicants) v. 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)

(T-619-12)

Kay Burkhart (applicant) v. 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)

(T-620-12)

Jeff Reid (applicant) v. 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)

(T-621-12)

Ken Ferance and Peggy Walsh Craig (applicants) v. 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)

(T-633-12)

Yvonne Kafka (applicant) v. 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)

(T-634-12)

Thomas John Parlee (applicant) v. 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)

(T-635-12; 2013 FC 953; 2013 CF 953)

Indexed As: McEwing et al. v. Canada (Attorney General) et al.

Federal Court

Mosley, J.

September 16, 2013.

Summary:

The Federal Court, in a decision reported at (2013), 433 F.T.R. 59, dismissed applications to annul the results of the 2011 General Election in six ridings won by the respondent Members of Parliament (MPs). The allegations were of electoral fraud. The Court awarded the MPs costs of the hearing, to be fixed, and was "inclined to order a modest fixed amount", absent an agreement. A seventh application had been dismissed with costs reserved to the applications judge upon the disposition of the other applications. The MPs sought costs of $120,000 based on the lowest tariff rate, or $60,000 if based on one-half of the lowest tariff rate. They also sought disbursements of $235,907.56. The applicants submitted that the amounts claimed were unjustified and inconsistent with the "modest fixed amount" yardstick.

The Federal Court concluded that the "modest fixed amount for the costs of the hearing" was the amount paid into court for the seven applications, namely $7,000, plus disbursements of $6,206. The Court made no award for the other costs incurred by the MPs in preparation for and conduct of the hearing.

Courts - Topic 4069

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Costs (incl. security for costs) - The application judge dismissed six applications to annul the results of the 2011 General Election in six ridings won by the respondent Members of Parliament (MPs) - The allegations were of electoral fraud - The MPs were awarded costs of the hearing, to be fixed - The application judge was "inclined to order a modest fixed amount", absent an agreement - A seventh application had been dismissed with costs reserved to the application judge upon the disposition of the other applications - The MPs sought costs of $120,000 based on the lowest tariff rate, or $60,000 if based on one-half of the lowest tariff rate - They also sought disbursements of $235,907 - The Federal Court awarded the amount paid into court for the seven applications, namely $7,000, plus disbursements of $6,206 - The MPs had "engaged in trench warfare" and adopted a stance aimed at blocking the applications "by any means" - The leading jurisprudence affirmed the importance of access to justice in public interest cases and the duty of the courts to craft costs orders that promoted that goal - The Court had full discretionary power to determine the amount of costs (Federal Courts Rules, rule 400(1)) - The applicants were genuine public interest litigants - The issues extended beyond the immediate interests of the parties involved - The applicants stood to gain nothing other than the vindication of their electoral rights - This was not a case of unwarranted election challenges - There was a factual foundation, albeit one which fell short of meeting the statutory threshold required to annul the election results.

Cases Noticed:

Incredible Electronics Inc. et al. v. Canada (Attorney General) et al., [2006] O.T.C. 476; 80 O.R.(3d) 723 (Sup. Ct.), refd to. [para. 9].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 11].

Harris v. Minister of National Revenue (2001), 214 F.T.R. 1; 2001 FCT 1408, refd to. [para. 14].

British Columbia (Minister of Water, Land and Air Protection) et al. v. Information and Privacy Commissioner (B.C.) et al. (2005), 214 B.C.A.C. 158; 353 W.A.C. 158; 2005 BCCA 368, refd to. [para. 14].

Guide Outfitters Association v. British Columbia (Information and Privacy Commissioner) - see British Columbia (Minister of Water, Land and Air Protection) et al. v. Information and Privacy Commissioner.

Miller v. Boxall et al. (2007), 291 Sask.R. 113; 2007 SKQB 9, refd to. [para. 14].

Hastings Park Conservancy v. Vancouver (City), [2006] B.C.T.C. Uned. D03; 2007 BCSC 147, refd to. [para. 14].

Victoria (City) v. Adams et al., (2009), 280 B.C.A.C. 237; 474 W.A.C. 237; 2009 BCCA 563, refd to. [para. 14].

R. v. Griffin (J.M.) (2009), 485 A.R. 251; 20 Alta. L.R.(5th) 237; 2009 ABQB 696, refd to. [para. 14].

Georgia Strait Alliance v. Canada (Minister of Fisheries and Oceans), [2011] FCJ No. 587 (T.D.), refd to. [para. 14].

Harrison v. University of British Columbia; Connell v. University of British Columbia (1986), 30 D.L.R.(4th) 206 (S.C.), additional reasons [1987] 2 W.W.R. 378 (S.C.), revd. (1988), 21 B.C.L.R.(2d) 145 (C.A.), affd. [1990] 3 S.C.R. 451; 120 N.R. 1, refd to. [para. 20].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 20].

Sierra Club of Western Canada v. British Columbia (Attorney General) (1991), 83 D.L.R.(4th) 708 (B.C.S.C.), refd to. [para. 20].

Wrzesnewskyj v. Canada (Attorney General) et al. (2012), 435 N.R. 259; 296 O.A.C. 82; 2012 SCC 55, refd to. [para. 21].

Opitz v. Wrzesnewskyj - see Wrzesnewskyj v. Canada (Attorney General) et al.

Counsel:

Steven Shrybman, Peter Engelmann and Benjamin Piper, for the applicants;

Barbara McIsaac and Marc Chenier, for the respondent, Marc Mayrand, Chief Electoral Officer;

Arthur Hamilton, Ted Frankel and Jeremy Martin, for the respondent, responding Parliamentarians;

W. Thomas Barlow and 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.

These cost submissions in writing were considered by Mosley, J., of the Federal Court, who delivered the following order and reasons for order, dated September 16, 2013, at Ottawa, Ontario.