Lawyers spar over who foots the bill for Saint John Harbour vote challenge

Legal bills for parties involved in the contested election of Liberal MLA Gerry Lowe are approaching a combined $400,000 and much of that amount should be paid by defeated Progressive Conservative candidate Barry Ogden, Lowe's lawyer argued in court Friday.

"Mr. Lowe is the successful person and costs are payable by the loser," Tom O'Neil told Justice Hugh McLellan at a hearing into who should pay what for a lengthy legal fight over results of the 2018 provincial election in the riding.

Lowe beat Ogden by 10 votes on election night in September 2018, a margin that was later confirmed by McLellan in a judicial recount.  

But lawyers for Ogden then launched a fight to have the election declared invalid, alleging a variety of irregularities in the results.  

McLellan did eventually find nine suspect votes — eight from people who lived outside of the riding and one from someone who voted twice — but in a 48-page decision in August ruled this was not enough to overcome Lowe's 10-vote win. Even if it had been enough, there was no evidence who the nine had voted for, the judge found.

"In my opinion the number of rejected votes that may reasonably be said to produce a substantial effect on the election in Saint John Harbour would have to be a lot more than the 10-vote margin of victory," wrote McLellan.

17 days in court

The legal fight lasted months, involved the production of 10,000 documents and ate up 17 days of court time, which O'Neil blamed on Ogden's legal team revising its claims and arguments as the case proceeded.

"If you had asked me at the start how long it would take I would have said a day or two," said O'Neil. 

"It should have been a simple summary application and turned into a horrendous time-consuming trial."

O'Neil said the bill for his legal services was "north of $120,000," while Ogden's lawyers said their own bill was "well in excess"  of $100,000. Elections New Brunswick, which was also a party to the case, put its legal fees at at least $150,000.

Ogden lawyer Matthew Letson rejected O'Neil's claim that the case was unnecessarily long and said enough problems were uncovered in the proceeding to require Elections New Brunswick to pay everyone's legal fees.

"In this case, we request the court exercise its discretion to grant costs against the chief electoral officer," said Letson.

"Mr. O'Neil suggests we conducted this case terribly, and we strongly disagree with that. The amendments to the application flowed from the discovery of additional evidence."

O'Neil agreed problems in the Saint John Harbour vote caused by Elections NB workers could make it liable for costs as well, but the agency's lawyer disagreed.

Fred McElman told the judge that the Elections Act has no provision in it for awarding costs in a legal challenge to an election result, and court precedents going back 140 years suggest that in the absence of wilful wrongdoing by election officials, each party in a contested election is responsible for its own costs.

"The chief electoral officer does not seek any costs in this proceeding," said McElman. "It does submit no costs should be awarded against it.

"There is a distinction where there is bad conduct or intentional improper conduct. My friends have agreed there was no intentional misconduct by any of these local election officers."

McLellan said he would issue a decision by the end of October.