Election officials in a room at Evergreen Hall Thursday morning before a judicial recount into the Oct. 20 Chilliwack school board election took place. (Paul Henderson/ The Progress).

Chilliwack school board on the hook for cost of judicial recount

Judge declines to order costs fall to the failed candidate whose application triggered the recount

The Chilliwack school board faces a hefty bill for the full cost of the judicial recount into the results of the Oct. 20 election.

Before and after the laborious two-day process of running all 24,700 ballots through vote-tabulating machines for a second time, there were questions about how much it would cost and who should foot the bill.

By Wednesday, a spokesperson for city hall said it would take at least a week to calculate costs as invoices for legal fees hadn’t yet been received, and they are still calculating staff time and associated expenses. On social media there has been some discussion about the cost topping $50,000 but there is nothing official to back that up, and the finance department was unable to even give a rough estimate yet.

And while the application for a judicial recount was brought forward by eighth-place finisher Kaethe Jones, and the outcome of the recount did not change the result, Jones is off the hook for the costs.

• READ MORE: Only one vote of 24,700 ballots changes after Chilliwack school board election recount

The conversation about costs began immediately after Judge Andrea Ormiston’s decision last Friday evening on the outcome of the recount, a decision that found no material difference in the result, meaning Jared Mumford won the seventh seat on the board.

Lawyers for Jones, Mumford and the City of Chilliwack made submissions on the subject of costs to Ormiston.

In essence, if the application to conduct the recount was brought frivolously and/or the conduct of the applicant during the recount unnecessarily prolonged it, then the judge might have ordered Jones to pay at least some portion of the costs. But the fact that the judge agreed to the application to conduct the recount in the first place meant it legally wasn’t unnecessary.

“I do not find that Ms. Jones was capricious or obstructive in the judicial review,” Ormiston said in not ordering costs to Jones.

Jones’ lawyer Herb Denton submitted to the judge that the application for a recount was not vexatious, the case had merit, and that ordering her to pay costs could be seen as punitive.

“This was a really valid process that was undertaken here,” Dunton said. “She brought a clear application that the court agreed had merit.”

He argued that making her pay the costs would be like “silencing dissent” and could have a “chilling effect.”

He added that Jones did not oppose the application to stop the proceedings part-way through Friday when it was clear the outcome would have no material change to the outcome of the election.

Mumford’s lawyer Rachel Roy did not argue that Jones should pay for the whole cost of the recount, rather she said they were seeking Jones to pay for Mumford’s legal costs, something she argued is standard and in no way amounted to a “chilling effect.”

“It is an ordinary process of the court that if you make an application and your application fails you might be ordered to pay part of the costs,” Roy said.

Roy added that she was authorized to speak on behalf of other election candidates David Swankey, Dan Coulter, Willow Reichelt, Meghan Reid, Peter Lang, Kelly Janveaux, Michael Prill and Chris Braun. She maintained Mumford’s original position that the recount was unnecessary given how reliable the electronic voting machines proved to be.

“These machines have been in use for some time,” she said. “I would suggest they are not new-fangled computers. Candidates had information sessions about them. [Chief election officer Carol] Friesen and her staff were continually accessible to talk about the machines.”

Roy argued further that Jones continued to push for a full judicial recount even when it was clearly explained why Mumford’s vote total dropped from 80 votes with preliminary results on election night to the final results four days later.

“We object to my friend saying there weren’t unfounded allegations, as we would say virtually none of the allegations that were made in the application have been shown to be founded,” Roy said.

“I’m very troubled by the suggestion that an order of costs would be akin to silencing dissent or somehow ideologically or politically penalizing people.”

The lawyer for the City of Chilliwack, Andrew Carricato, submitted no position on the supposed unfounded allegations or on who should pay for the recount. Carricato said Friesen was pleased with the result, proving as it did the integrity of the original election.

“The result here today confirms that those checks and balances that have been put in place and have been tested over and over again in previous elections were effective,” he said.

In the end, Ormiston said the lack of clarity in the law about exactly when a recount should be ordered made it unreasonable to order Jones to pay the costs.

“I think there is a gap between the legislation and the use of these machines and I think in large part that is why we are here.”

Both Jones and Mumford were ordered to be responsible for their own costs, and the school district will foot the bill for the overall cost of the recount.

• READ MORE: Judge orders official recount of ballots in Chilliwack school board election


@PeeJayAitch
paul.henderson@theprogress.com

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