Docket: T-1657-13
Citation:
2014 FC 1088
Ottawa, Ontario, November 20, 2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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ROCCO GALATI, AND
CONSTITUTIONAL RIGHTS CENTRE INC.
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Applicants
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and
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THE RIGHT HONOURABLE STEPHEN HARPER, HIS EXCELLENCY THE RIGHT
HONOURABLE GOVERNOR GENERAL DAVID JOHNSTON, THE HONOURABLE JUSTICE MARC
NADON, JUDGE OF THE FEDERAL COURT OF APPEAL, THE ATTORNEY GENERAL OF CANADA, AND THE MINISTER OF JUSTICE
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Respondents
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ORDER AND REASONS
[1]
The within application was filed October 7,
2013, seeking “declaratory, prerogative and injunctive
relief, from the decision, made October 3rd, 2013, to appoint and ‘swear in’
(Administering of oath) the Honourable Justice Marc Nadon, a Judge of the Federal
Court of Appeal to the Supreme Court of Canada pursuant to the requirements of
ss. 4(2), 6, 10 and 11 of the Supreme Court Act of Canada and s. 41(d)
and 42(d) of the Constitution Act, 1982.”
[2]
On October 22, 2013, the Governor in Council
referred two questions to the Supreme Court of Canada relating to the
challenged appointment of Justice Nadon to the Supreme Court [the Reference].
On motion by the Attorney General of Canada, this application was stayed on
consent, by Order dated November 12, 2013, pending the release of the decision
of the Supreme Court on the Reference. Both applicants applied to the Supreme
Court of Canada for leave to intervene in the Reference and for costs. Mr.
Galati requested that his costs be on a solicitor-client basis. Leave to
intervene was granted but no order was made as to costs.
[3]
The applicants sought and were granted a further
stay of this application. Following the appointment of Justice Gascon to the
Supreme Court, a case management conference was held following which, on
agreement of the parties, an Order issued on August 25, 2014, that “the final disposition of this application, including costs,
shall be conducted by way of written submissions from the parties.”
[4]
Each applicant filed identical motions seeking:
a)
A declaration that where a private citizen
brings a constitutional challenge to legislation and/or executive action, going
to the “architecture of the Constitution”, from which he/she derives no
personal benefit, per se, and is successful on the constitutional challenge,
that he/she is entitled to solicitor-client costs of those proceedings, as to
deny those costs constitutes a breach of the constitutional right to a fair and
independent judiciary;
b)
That the Applicant be granted leave to issue a
notice of discontinuance in the within application;
c)
that the Applicant be granted his
solicitor-client costs of the within application, including the within motion;
and
d)
Such further order and/or direction as this
Court deems just.
[5]
Mr. Galati, a barrister and solicitor, but
acting on his own behalf, has provided a Statement of Account showing 56.4
hours of services at an hourly rate of $800 and disbursements of $638.00, for a
total bill of costs, including tax of $51,706.54.
[6]
The Constitutional Rights Centre Inc. has
provided a Statement of Account for work done by Paul Slansky, a barrister and
solicitor, showing 14.55 hours of services at an hourly rate of $800, for a
total bill of cost, including tax of $16,769.20.
[7]
The respondents submit that these bills of costs
are excessive and unwarranted given that the application was stayed at such an
early stage. I agree. As one example, Mr. Galati’s claim for 7.6 hours to “review, research, Attorney General’s motion for stay”
in light of the Reference is excessive and unwarranted.
[8]
The respondents filed a cross-motion for an
order dismissing the application. In response to the request for costs, the
respondents submit that as there has been no judgment and no successful party,
there should be no costs awarded. In the alternative, they submit that there
is no constitutional right to costs in Canada and, “having
regard to the factors set out in Rule 400(3), the purposes of costs would be
well-served by a single award of costs, assessed according to Column III.”
[9]
The applicants have provided no authority for
the proposition that “where a private citizen brings a
constitutional challenge to legislation and/or executive action, going to the ‘architecture
of the Constitution’, from which he/she derives no personal benefit, per se,
and is successful on the constitutional challenge, that he/she is entitled to
solicitor-client costs of those proceedings, as to deny those costs constitutes
a breach of the constitutional right to a fair and independent judiciary.”
[10]
The respondents point to a decision of the Tax
Court of Canada in Lee v Canada (Minister of National Revenue – MNR),
[1991] TCJ No 243, wherein it was stated that:
There is no constitutional right to an award of
costs. Moreover, there is no specific Charter Right that is infringed by the
failure of a Court to award costs. Any attempt to impose such a requirement
through jurisprudence would amount to an excess of jurisdiction. The role of
this Court is confined to the determination of constitutional challenges to
existing legislation.
[11]
Although not binding on me, I agree with
the observations of the Tax Court Judge. Moreover, there is no justification
in these circumstances to an award of solicitor-client costs. Indeed, the
Supreme Court of Canada in a decision cited by the applicants, Mackin v New
Brunswick, [2002] 1 S.C.R. 405, a case that did involve judicial independence,
reversed the award of solicitor-client costs made by the Court of Appeal and
substituted an award of party and party costs only. The Supreme Court
specifically stated that “solicitor-client costs are not
appropriate in this case.”
[12]
I agree with the respondents that considering
Rule 400(3), there is no just basis to award the applicants solicitor-client
costs. Such an award is exceptional: Chretien v Canada (Commission of
Inquiry into the Sponsorship Program and Advertising Activities, Gomery
Commission), 2011 FCA 53 at para 3. There is no conduct of the respondents
in this application that warrants such an award; nor is there any other
circumstance that makes this a case warranting the highest award of costs.
Although the application would have involved complex issues of law and have
been of importance to the judicial system and the constitution of Canada, the application was derailed and supplanted by the Reference. As such, very little
work needed to be done on the application by the applicants. The mere filing
of it appears to have had the desired result.
[13]
However, I accept that but for the applicants
commencing this application, it was unlikely that the Reference would have
occurred. At the time the application was filed, there was no apparent
objection made to the appointment of Justice Nadon on constitutional grounds by
any person or government. To that extent, one could argue that the applicants
have done Canada a service and should not be out-of-pocket in so doing.
[14]
There is no longer any lis between these
parties, and the application will be dismissed; however, I am of the view that
the applicants are entitled to a single award of costs.
[15]
In these circumstances, it makes little sense to
refer the costs to a taxing officer – it would not be an appropriate use of
judicial resources. Recognizing that an award of costs is a matter of
discretion, and considering the factors set out in Rule 400(3), I will order a
single award of costs to the applicants, fixed on a lump sum basis in the
amount of $5000.
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