Pauline Frost has been ordered to pay a portion of Annie Blake’s legal costs by the Yukon Supreme Court.
A Yukon judge ruled on an application from Blake, the NDP MLA for Vuntut Gwitchin, seeking as much as $42,840 in legal costs from Frost.
Frost had launched a legal challenge of Blake’s election to the Yukon legislature last spring. Frost, the incumbent Liberal candidate, lost her seat to Blake after a perfect tie resulted in a winner being randomly drawn.
Justice Suzanne Duncan weighed the public-interest value of the case, and Frost’s financial situation, in settling on a costs award of approximately $8,000.
The legal challenge Frost mounted hinged on whether Christopher Schafer, a citizen of the Vuntut Gwitchin First Nation who was incarcerated in Whitehorse during the April 2021 election, was entitled to vote in the remote northern riding.
A judge dismissed Frost’s petition in August, finding Schafer was eligible to vote in Old Crow.
According to a judgment released by the courts on Dec. 8, Frost opposed paying Blake’s legal costs. Frost’s counsel argued that the case was in the public’s interest.
Counsel for Blake argues that Frost is not a public interest litigant, because her motives were selfish. They note her personal interest in the outcome and her potential for financial gain, because if she were successful in court and in a subsequent byelection she would have regained her paid role as an MLA.
In her judgment, Duncan notes that while Frost had some private interest in the success of the court case, victory in court would not guarantee the victory in a byelection needed to get her the MLA seat.
“The concerns raised by Pauline Frost about the policies, actions and conduct of elections officials in determining residency of voters like Christopher Schafer constituted important legal issues of broader interest to the community at large,” the judgment reads.
“In this case, I find on balance that Pauline Frost is a public interest litigant in public interest litigation. While there are elements of private self-interest in her application, the questions it raised and their resolution were of benefit to Yukoners in general.”
The judge notes that the case bears particular public interest because the Yukon Elections Act is silent on residency rules for incarcerated voters and so it will set precedent for future cases.
Duncan also notes elements of both public and private interest in Blake’s pursuit of upholding the outcome of the election.
After considering case law where similar instances including other elections were at issue, Duncan agreed with Annie Blake’s lawyers that there should be no immunity from costs in this case. The Judge also found that on balance the matter is not free from private interest. Frost’s financial circumstances were also considered.
Citing aspects of the case including the last minute withdrawal of the argument related to another supposedly ineligible voter by Frost’s lawyer, and the late amendment to the petition as well as arguments from Blake’s lawyers, the judge agreed Blake is entitled to some costs.
Duncan settled on lump sum costs of $7,500 plus GST and also awarded $395 to cover the cost of a flight to Old Crow. Duncan accepted Blake’s counsel’s submission that the time in Old Crow was spent obtaining affidavits and information to oppose the challenge to the residency of the other voter, which ultimately was not pursued by Frost’s lawyer.
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