Saint John Harbour Liberal MLA loses bid to have PCs pay legal costs of vote challenge

Saint John Harbour Liberal MLA Gerry Lowe has lost a bid to have former Progressive Conservative candidate Barry Ogden and his campaign chair reimburse the more than $120,000 he spent in legal fees successfully defending his election.

Ogden and Peter Josselyn also lost their bid to have the province's chief electoral officer pay their estimated $100,000 in legal bills.

Court of Queen's Bench Justice Hugh McLellan ruled Friday that each party will cover its own costs.

He described Lowe and Ogden as "innocent victims of errors at the polls" but said he's bound by case law that each must bear his own costs.

There is no legislation in New Brunswick that would permit an award of costs against the chief electoral officer or the province, McLellan said in his 30-page written decision.

"Absent such legislation, there are no cases in which a chief electoral officer has been found to be legally responsible for the errors and mistakes of election officials or had to pay costs because of their errors."

Lowe beat Ogden by 10 votes in the Sept. 24, 2018, provincial election that left neither party with a majority in the legislature.

A vote recount by McLellan on Oct. 4 confirmed Ogden lost, but Ogden and Josselyn, who is also the PC riding association president, then applied to have the election result overturned, alleging irregularities.

The legal fight took nine days of preliminary hearings and five trial days spread over several months. McLellan rejected setting aside the election result in a decision Aug. 23.

Did nothing wrong

Lowe sought "substantial indemnity of his costs" from Ogden, Josselyn and the chief electoral officer.

"He emphasizes that he has done nothing wrong but that he has been put to great expense," said McLellan.

Ogden and Josselyn countered that their case had merit. Lowe won by a slim margin and there were roughly 70 irregularities or mistakes by an election officer discovered.

"There were nine illegal votes and there was no way to reconcile the number of ballots counted with the number of voters struck off as having voted," the judge noted.

In addition, Lowe and Josselyn said, they were helping the court to "safeguard the right to vote" and to "protect the integrity of the system."

They argued the full costs of both candidates should be the legal responsibility of the chief electoral officer.

Seeks changes to improve reliability

In a statement issued Friday afternoon, Ogden said that while McLellan's decision wasn't the outcome he had hoped for, he is "pleased that the judge recognized that 'There were valid, even compelling reasons to contest the closeness of the election' in Saint John Harbour and that we were 'innocent victims of errors at the polls.'"

He stands by his decision to raise concerns about the riding results, he said. 

"What has to be hoped for now is that the chief electoral officer will proceed with systemic changes to improve the reliability of electoral processes in New Brunswick and increase public confidence."

Monday's federal election, for example, had a "more stringent" process in place to avoid any errors, requiring voters to present identification in addition to their voter cards, he said.

Elections New Brunswick respects the court's decision, chief electoral officer Kimberly Poffenroth said in a brief emailed statement.

"At this point, we do not have the final cost of legal expenses for Elections New Brunswick's involvement in this case," said Poffenroth.

"We will offer no further comment on this matter," she added.