Despite all the bad publicity, many lawyers are the unsung heroes of society. We fight the good fight, often unrecognized by any of those around us, and receive no thanks from the recipients of our hard work.
The Federal Court of Appeal released a decision this month in Galati v. Harper, denying the appeal of a 2014 decision which had denied substantial indemnity costs in the constitutional litigation surrounding the Justice Nadon appointment to the Supreme Court. Justice Zinn fixed the costs at a mere $5,000, on a bill of costs for a total of $68,475.74.
The application had been stayed given the case had been taken on by the Supreme Court of Canada in a reference, with a decision released in 2014. The decision by the Court was largely in favour of the original applicants to the Federal Court, as the majority in the Supreme Court stated,
Justice Zinn did recognize that were it not for the applicants the Reference would not have happened, but found the quantum sought to be unreasonable given the course of the proceedings,
 …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.
What is of greater concern was Justice Zinn’s comment that there is no right to costs in such situations. He cited a non-binding statement from the tax court in Lee v Canada (Minister of National Revenue – MNR),  TCJ No 243, which stated,
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.
Costs are ultimately discretionary. Absent an error in law, judges wield enormous autonomy and power to award or deny costs as they see fit, and this function is directly related to the independence of the judiciary. The Federal Court of Appeal emphasized this by pointing to Rule 400(1) of the Federal Courts Rules, SOR/98-106.
However, the self-represented nature of one of the applicant justified a reduction in the costs awarded. The Federal Court of Appeal stated in Air Canada v. Thibodeau,
 However, given the three-fold objective of costs, i.e. providing compensation, promoting settlement and deterring abusive behaviour, case law has acknowledged that it is appropriate to award some form of compensation to self-represented parties, particularly when that party is required to be present at a hearing and foregoes income because of that: see Sherman v. Minister of National Revenue,  4 FCA 865. However, the compensation awarded may at best be equal to what the party could have obtained under the Tariff if it had been represented by a lawyer: see Sherman, supra, 2004 FCA 29 (CanLII), at paragraph 11. It is generally a fraction of that amount. This is what the Federal Court judge did.
The more important issue addressed in this case was the economic imbalance between economic litigants involved in constitutional litigation against the state, an issue dealt with in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) and Carter v. Canada (Attorney General). Both cases emphasized that public interest litigation would only entitle preferential costs treatment in rare and exceptional cases. The Court in Carter adopted the test in British Columbia (Minister of Forests) v. Okanagan Indian Band:
1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial — in short, the litigation would be unable to proceed if the order were not made.
2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.
3. The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.
The Court in Carter modified this test further, stating at para 140 that only in rare cases would it be contrary to the interests of justice to ask pro bono counsel to bear the financial burden of the claim:
- the case must involve matters of public interest that are truly exceptional and must also have a significant and widespread societal impact
- in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation in question with private funding
The Federal Court of Appeal rejected the applicant’s submissions on appeal, stating they attempted to modify the Carter test by substituting the first principle with litigation affecting the “architecture of the Constitution,”
 …The fact that their application apparently set in motion a series of events which led to the conclusion which they hoped to achieve in their application does not make them successful litigants. It may make them successful politically or in the popular press, but that is a different matter. They can only claim costs in relation to the judicial treatment of the Joint Application which, as noted, was dismissed. To hold otherwise would be to create something in the nature of a finder’s fee for constitutional litigation.
The Federal Court of Appeal also expressed some rather harsh language for the submissions of the applicants over collusion,
 … [the Applicants] state as a fact that a Court which, having agreed that certain government action was inconsistent with the Constitution and having therefore set it aside, will nonetheless be seen to be, and will in fact be, “in bed” with the government if it fails to award the successful applicant its solicitor client costs. The tie-in to the Constitution is that this collusion deprives the affected litigant of its constitutionally protected right to a fair and independent judiciary.
 To be “in bed” with someone is to collude with that person. 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. This is reminiscent of the gonzo logic of the Vietnam War era in which entire villages had to be destroyed in order to save them from the enemy. 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. This argument deserves to be condemned without reservation.
The denial of costs in this case certainly may not rise to the level of collusion alleged here, but it does give rise for pause for lawyers engaging in public interest litigation.
The recent death of Antonin Scalia in the U.S. has shone a light on the doctrine of originalism and the living tree doctrine. The latter made possible the Persons Reference and the Same Sex Reference.
Emmett MacFarlane, commenting on Scalia’s death, was quoted in the Star saying,
You’d never have a Canadian Supreme Court judge refer to themselves as an originalist.
Perhaps not, but the living tree doctrine is best suited for advancing social causes and protecting human rights, not modifying constitutional structure around judicial appointments.
The constitutional issue at stake here may not have been as exciting or sexy as freedom of expression for a gay bookstore, or the ability of an individual towards the end of life to seek physician assistance in dying. But that doesn’t mean it is any less important.
The constitutional structure of our courts, and how the executive seeks to constitute that judiciary, is a fundamental issue of our democratic state. It speaks to the willingness of the Prime Minister, perhaps deliberately, to flaunt and flout the constitution as pesky and inconvenient “rules.” This work is just as important, and this role within our legal system just as significant as the role of those on the bench.
The Federal Court of Appeal did get this decision right by providing deference to the Federal Court decision on costs, and that decision is properly considered discretionary. But we do have to be careful about sending an inadvertent signal to the bar that their time and efforts in standing up for the fabric of our constitution will not be compensated or appreciated by way of costs.
This concern can be addressed by a progressive, forward-looking government. One which recognizes that public interest litigation assists everyone, including the government, by ensuring the constitutional validity of their decisions. Such a government can pass legislation providing for greater guidance on cost regimes in the public interest, thereby providing basis for judicial any discretion in this area.
A government embracing litigation in this sense is a government embracing the public interest. And shouldn’t we, the public, be able to elect a government acting in our own interest?