Galati et al. v. Prime Minister (Can.) et al., (2016) 481 N.R. 163 (FCA)

JudgePelletier, Stratas and Gleason, JJ.A.
CourtFederal Court of Appeal (Canada)
Case DateJanuary 11, 2016
JurisdictionCanada (Federal)
Citations(2016), 481 N.R. 163 (FCA);2016 FCA 39

Galati v. Prime Minister (Can.) (2016), 481 N.R. 163 (FCA)

MLB headnote and full text

Temp. Cite: [2016] N.R. TBEd. FE.020

Rocco Galati, Constitutional Rights Centre Inc. (appellants) v. The Right Honourable Stephen Harper, His Excellency the Right Honourable Governor General David Johnston, The Honourable Marc Nadon, Judge of the Federal Court of Appeal, The Attorney General of Canada, The Minister of Justice (respondents)

(A-541-14; 2016 FCA 39)

Indexed As: Galati et al. v. Prime Minister (Can.) et al.

Federal Court of Appeal

Pelletier, Stratas and Gleason, JJ.A.

February 8, 2016.

Summary:

The applicants applied for relief with respect to the decision to appoint Justice Nadon to the Supreme Court of Canada. Subsequently, the Governor in Council referred two questions to the Supreme Court relating to the challenged appointment of Justice Nadon. The applicants' application was stayed pending determination of the reference. The Supreme Court rendered a final decision on the issue, determining that Justice Nadon was ineligible for appointment. The applicants filed motions seeking a discontinuance of the application and solicitor-client costs.

The Federal Court, in a decision reported at (2014), 467 F.T.R. 318, granted the discontinuance and ordered a single award of costs to the applicants, fixed on a lump sum basis in the amount of $5,000. The applicants appealed, arguing that they had a constitutional right to solicitor-client costs.

The Federal Court of Appeal dismissed the appeal.

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - [See Practice - Topic 7468 ].

Practice - Topic 7451.1

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Unsuccessful party - The applicants applied for relief respecting the decision to appoint Justice Nadon to the Supreme Court of Canada - Subsequently, the Governor in Council referred two questions to the Supreme Court relating to the challenged appointment of Justice Nadon - The applicants' application was stayed pending determination of the reference, and then discontinued after the Supreme Court determined that Justice Nadon was ineligible - The applicants filed motions, arguing that they had a constitutional right to solicitor-client costs - The motion judge rejected this argument and further found that there was no conduct on the part of the respondents or other circumstances that justified solicitor-client costs - However, it was unlikely that the reference would have occurred without the applicants' application - In that sense, they had "done Canada a service and should not be out-of-pocket in so doing" - Consequently, the motion judge ordered a single award of $5,000 in lump sum costs - The Federal Court of Appeal dismissed the applicants' appeal - To the extent that the right to solicitor-client costs accrued only to successful litigants, the applicants did not satisfy that test - The fact that their application set in motion a series of events which led to the result which they hoped to achieve in their application did not make them successful litigants - They could only claim costs in relation to the judicial treatment of their application, which was dismissed - See paragraphs 28 and 29.

Practice - Topic 7468

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Against the Crown or governmental bodies - The applicants applied for relief with respect to the decision to appoint Justice Nadon to the Supreme Court of Canada - Subsequently, the Governor in Council referred two questions to the Supreme Court relating to the challenged appointment of Justice Nadon - The applicants' application was stayed pending determination of the reference, and then discontinued after the Supreme Court determined that Justice Nadon was ineligible - The applicants filed motions, arguing that they had a constitutional right to solicitor-client costs because the failure to do so was a breach of the constitutional right to a fair and impartial judiciary - They submitted that a court which set aside certain government action on the basis that it was inconsistent with the Constitution would nonetheless be seen to be, and would in fact be, "in bed" with the government if it failed to award the successful applicant solicitor-client costs - The motion judge refused to award solicitor-client costs and instead ordered a single award of $5,000 in lump sum costs - The Federal Court of Appeal held that the applicants' argument was so scandalous that it deserved to be condemned - The court stated "I do not understand how one could hope to protect the right to a fair and independent judiciary by accusing courts of colluding with the government if they don't give the applicant its solicitor client costs. The entire Court system, it seems, must be alleged to be actually or potentially acting in bad faith in order to instill public confidence in the fairness and independence of the judiciary. ... The fact that this argument is made in support of an unjustified monetary claim leads to the question 'Whose interest is being served here?' Certainly not the administration of justice's." - See paragraphs 32 to 35.

Practice - Topic 7470.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Public interest or test cases - The applicants applied for relief with respect to the decision to appoint Justice Nadon to the Supreme Court of Canada - Subsequently, the Governor in Council referred two questions to the Supreme Court relating to the challenged appointment of Justice Nadon - The applicants' application was stayed pending determination of the reference, and then discontinued after the Supreme Court determined that Justice Nadon was ineligible - The applicants filed motions, arguing that they had a constitutional right to solicitor-client costs - The motion judge rejected this argument and further found that there was no conduct on the part of the respondents or other circumstances that justified solicitor-client costs - However, it was unlikely that the reference would have occurred without the applicants' application - In that sense, they had "done Canada a service and should not be out-of-pocket in so doing" - Consequently, the motion judge ordered a single award of $5,000 in lump sum costs - The Federal Court of Appeal dismissed the applicants' appeal - Although the issues raised were of significant importance, they did not go to the "architecture of the Constitution" - When partisan political overlay was stripped away, this was a lawyer's issue with very limited consequences beyond legal circles - In addition, it could not be said that it would have been impossible to effectively pursue the litigation with private means - As it actually unfolded, the application required a combined total of 71 hours of two lawyers' time - This was not an insuperable burden, and it was relieved by the $5,000 costs award - See paragraphs 30 and 31.

Practice - Topic 7470.14

Costs - Solicitor and client costs - Entitlement to - On abandonment or discontinuance - [See Practice - Topic 7451.1 ].

Cases Noticed:

Lee v. Canada (Minister of National Revenue), [1991] T.C.J. No. 243, refd to. [para. 14].

Turmel v. Canada (2016), 481 N.R. 139; 2016 FCA 9, refd to. [para. 18].

Thibodeau v. Air Canada et al. (2007), 375 N.R. 195; 2007 FCA 115, refd to. [para. 21].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [paras. 26, 45].

Carter et al. v. Canada (Attorney General) et al., [2015] 1 S.C.R. 331; 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [paras. 26, 45].

Committee for Justice & Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 39].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 39].

New Brunswick Provincial Court Judges' Association et al. v. New Brunswick (Minister of Justice), [2005] 2 S.C.R. 286; 336 N.R. 201; 367 A.R. 300; 346 W.A.C. 300; 288 N.B.R.(2d) 202; 751 A.P.R. 202; 201 O.A.C. 293; 2005 SCC 44, refd to. [para. 39].

Es-Sayyid v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 432 N.R. 261; 2012 FCA 59, refd to. [para. 40].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 40].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 43].

Yeager v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 453 N.R. 385; 2013 FCA 258, refd to. [para. 43].

Lemus et al. v. Canada (Minister of Citizenship and Immigration) (2014), 461 N.R. 310; 372 D.L.R.(4th) 567; 2014 FCA 114, refd to. [para. 43].

Austria v. Canada (Citizenship and Immigration) - see Tabingo v. Canada (Minister of Citizenship and Immigration).

Tabingo v. Canada (Minister of Citizenship and Immigration) (2014), 462 N.R. 124; 377 D.L.R.(4th) 151; 2014 FCA 191, refd to. [para. 43].

Toussaint v. Canada (Minister of Citizenship and Immigration), [2013] 1 F.C.R. 3; 417 N.R. 356; 2011 FCA 146, refd to. [para. 43].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 44].

R. v. Rowbotham (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 44].

Counsel:

Rocco Galati, for the appellant, Rocco Galati;

Paul Slansky, for the appellant, Constitutional Rights Centre Inc.;

Andrew Law and Christine Mohr, for the respondents, The Right Honourable Stephen Harper, His Excellency the Right Honourable Governor General David Johnston, The Attorney General of Canada and The Minister of Justice.

Solicitors of Record:

Rocco Galati Law Firm, Toronto, Ontario, for the appellant, Rocco Galati;

Slansky Law, Toronto, Ontario, for the appellant, Constitutional Rights Centre Inc.;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents, The Right Honourable Stephen Harper, His Excellency the Right Honourable Governor General David Johnston, The Attorney General of Canada and The Minister of Justice;

Langlois, Kronstrom, Desjardins, Montreal, Quebec, for The Honourable Marc Nadon, Judge of the Federal Court of Appeal.

This appeal was heard at Toronto, Ontario, on January 11, 2016, before Pelletier, Stratas and Gleason, JJ.A., of the Federal Court of Appeal. The judgment of the court was delivered at Ottawa, Ontario, on February 8, 2016, and included the following opinions:

Pelletier, J.A. (Gleason, J.A., concurring) - see paragraphs 1 to 36;

Stratas, J.A., concurring - see paragraphs 37 to 47.

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9 practice notes
  • Hospira Healthcare Corp. v. Kennedy Institute of Rheumatology, 2016 FCA 215
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • August 31, 2016
    ...decisions of this Court have followed Turmel: French v. Canada, 2016 FCA 64, [2016] F.C.J. No. 238 at paragraph 26; Galati v. Harper, 2016 FCA 39, 394 D.L.R. (4th) 555 at paragraph 18; Canada (Citizenship and Immigration) v. Bermudez, 2016 FCA 131, [2016] F.C.J. No. 468 at paragraph 21; Can......
  • Alliance for Equality of Blind Canadians v. Canada (Attorney General), 2021 FC 860
    • Canada
    • Federal Court (Canada)
    • August 23, 2021
    ...Fraser v Canada (Public Safety and Emergency Preparedness), 2021 FC 821 (McVeigh J.), at paras 165 and following; and Galati v Harper, 2016 FCA 39. I am also conscious of the Court’s discretion under Rule 400 of the Federal Court Rules. Considering in particular that AEBC was acting ......
  • Gregory v. Canada (Public Safety and Emergency Preparedness), 2018 FC 1282
    • Canada
    • Federal Court (Canada)
    • December 19, 2018
    ...Teva Canada Limited v. Janssen Inc., 2018 FCA 33 at para. 154). That is also true for self-represented litigants (Galati v. Harper, 2016 FCA 39 at paras 21-22, 394 DLR (4th) 555; Stubicar v. Canada, 2015 FCA 113). Indeed, an individual who is self-represented has no legal fees to pay. [6]&#......
  • Jagadeesh v. Canadian Imperial Bank of Commerce (CIBC), 2019 FC 1445
    • Canada
    • Federal Court (Canada)
    • November 19, 2019
    ...and respectfully advanced their positions at the oral hearing and in their written submissions. Furthermore, as noted in Galati v Harper, 2016 FCA 39, at para 22: “A self-represented litigant, by definition, has no counsel and therefore no out-of-pocket expenses for which full indemn......
  • Request a trial to view additional results
7 cases
  • Hospira Healthcare Corp. v. Kennedy Institute of Rheumatology, 2016 FCA 215
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • August 31, 2016
    ...decisions of this Court have followed Turmel: French v. Canada, 2016 FCA 64, [2016] F.C.J. No. 238 at paragraph 26; Galati v. Harper, 2016 FCA 39, 394 D.L.R. (4th) 555 at paragraph 18; Canada (Citizenship and Immigration) v. Bermudez, 2016 FCA 131, [2016] F.C.J. No. 468 at paragraph 21; Can......
  • Alliance for Equality of Blind Canadians v. Canada (Attorney General), 2021 FC 860
    • Canada
    • Federal Court (Canada)
    • August 23, 2021
    ...Fraser v Canada (Public Safety and Emergency Preparedness), 2021 FC 821 (McVeigh J.), at paras 165 and following; and Galati v Harper, 2016 FCA 39. I am also conscious of the Court’s discretion under Rule 400 of the Federal Court Rules. Considering in particular that AEBC was acting ......
  • Gregory v. Canada (Public Safety and Emergency Preparedness), 2018 FC 1282
    • Canada
    • Federal Court (Canada)
    • December 19, 2018
    ...Teva Canada Limited v. Janssen Inc., 2018 FCA 33 at para. 154). That is also true for self-represented litigants (Galati v. Harper, 2016 FCA 39 at paras 21-22, 394 DLR (4th) 555; Stubicar v. Canada, 2015 FCA 113). Indeed, an individual who is self-represented has no legal fees to pay. [6]&#......
  • Jagadeesh v. Canadian Imperial Bank of Commerce (CIBC), 2019 FC 1445
    • Canada
    • Federal Court (Canada)
    • November 19, 2019
    ...and respectfully advanced their positions at the oral hearing and in their written submissions. Furthermore, as noted in Galati v Harper, 2016 FCA 39, at para 22: “A self-represented litigant, by definition, has no counsel and therefore no out-of-pocket expenses for which full indemn......
  • Request a trial to view additional results
1 books & journal articles
  • BenchPress--Vol 40-4.
    • Canada
    • LawNow Vol. 40 No. 4, March 2016
    • March 1, 2016
    ...the enemy." In a separate comment, Justice Stratas wrote: "An officer of the court should never make such a submission." Galati v. Harper 2016 FCA 39 (CanLII) http://www.canlii.org/en/ca/fca/doc/2016/2016fca39/2016fca39.html Representative The Court of Queen's Bench of Alberta has ruled tha......

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