Case information

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Constitutional law – Civil procedure – Costs – Applicants seeking solicitor-client costs of application in Federal Court challenging appointment of Honourable Marc Nadon to Supreme Court of Canada – Solicitor-client costs denied – Whether there is a constitutional right to solicitor-client costs, in the limited circumstances advanced, where there is a novel and important issue in respect of constitutional public interest litigation – Whether the award of solicitor-client costs is warranted, absent constitutional consideration – Whether the approach of the Federal Court of Appeal to the issue of “success” for purposes of costs orders is too rigid and inflexible and is contrary to the previous approach in the Federal Court and contrary to the present approach in the Provinces – Whether an appellate court exceeds jurisdiction in writing the reasons of a lower court, to justify the result of the lower court, when those appellate reasons were absent from the lower court decision? – Federal Courts Rules, SOR/98-106, r. 400.

The applicants, Rocco Galati and the Constitutional Rights Centre Inc., brought an application in the Federal Court to challenge the appointment of the Honourable Marc Nadon to the Supreme Court of Canada. Shortly thereafter, the Governor in Council referred two questions relating to the challenged appointment to this Court. On motion by the Attorney General of Canada, the application was stayed on consent, pending the release of this Court’s decision in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433. Both applicants were granted intervener status and appeared at the hearing of the Reference.

Following the release of this Court’s decision in the Reference, the applicants brought identical motions seeking 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.