Poor Rocco don't get no respect. Or legal fees for that matter. You'll all remember Rocco's saga of how he stopped a Federal Court of Appeal judge from being appointed to the Supreme Court of Canada. After his historic victory all he wanted was just compensation for saving Canada from the anarchy of being allowed to appoint Supreme Court judges willy-nilly without consulting him first. And it was denied by the Federal Court;
[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 SCC 13 (CanLII), [2002] 1 SCR 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 (CanLII) 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.
But the court condescendingly patted him on the head and tossed him a few scraps.
[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.
Galati v. Harper, 2014 FC 1088
http://canlii.ca/t/gfl0p
$5,000 for saving Canada? There was no way an honourable upright dedicated Canadian like Rocco could suffer this outrage in silence. So he appealed it to the Federal Court of Appeal, the same court that Justice Nadon, the rejected jurist, came from and where he still remains. The decision just came out and it's not a pension and a vote of thanks from parliament for Rocco.
Galati v. Harper, 2016 FCA 39
http://canlii.ca/t/gn8jr
All he asked the FCA for was the same fair and reasonable fee payment that he'd been requesting all along;
[12] Mr. Galati argued for an award of costs in his favour calculated on the basis of 56.4 hours of service at an hourly rate of $800, plus disbursements in the amount of $638, for a total award (including tax) of $51,706. The CRC claimed costs of $16,769 based on 14.55 hours of service by its counsel, Mr. Slansky, at an hourly rate of $800. In argument, Mr. Galati acknowledged that his regular hourly rate is not $800 as his clientele do not have the means to pay such an exalted rate. He advised that $800 per hour is the rate for substantial indemnity pursuant to Part 1 of Tariff A of the Ontario Rules of Civil Procedure, R.R.O. 1990 Reg. 194, for lawyers of his year of call and experience.
But the government wasn't giving up denying it to him;
[13] The Attorney General opposed Mr. Galati’s and the CRC’s motions and filed a cross motion seeking the dismissal of the Joint Application. On the question of costs, the Attorney General argued that since, as of the date of the argument, no judgment had been rendered in the Joint Application, there was no successful party and therefore no basis for an order for costs. In any event, the Attorney General argued that there was no constitutional right to costs. If an order of costs were to be made, having regard to the factors mentioned in Rule 400(3) of the Federal Courts Rules, SOR/98-106, it should be a single award assessed on Column III of Tariff B.
The issues under appeal were;
[16] Mr. Galati and the CRC raise two issues. The first is that the Federal Court Judge erred in failing to analyze their claim that, in the case of public interest litigation which satisfies the test they propose, there is a constitutional requirement that a successful litigant be awarded his solicitor-client costs because the failure to do so is a breach of the constitutional right to a fair and impartial judiciary. The second issue is that, even if there is no constitutional right to solicitor-client costs, the Federal Court judge erred in failing to award them such costs in the circumstances of this case.
[17] In the alternative, Mr. Galati argues that the Federal Court’s reasons are unintelligible for purposes of appellate review. Having conducted such an appellate review, I find no merit to this allegation.
The second part addressed the rule that an court decision must be clear enough in its reasons that the parties can understand why they have won and lost. If not they have lost their fundamental right to appeal it. I've read the Federal Court decision and I had no problem at all understanding why Rocco lost but then I'm not a high-powered legal genius like he is.
The FCA decision started out by saying that the judges rendering it were somewhat puzzled by Rocco's apparent inability to comprehend the clear and simple rules set out for cost awards at the Federal Court.
[20] The first point to be disposed of is the hourly rate used by the Mr. Galati and the CRC in their respective claims for costs. Their claim to be entitled to the substantial indemnity rate of $800 which apparently would apply to these counsel under the Ontario Rules of Civil Procedure is puzzling. Mr. Galati and Mr. Slansky are both experienced counsel who presumably know that the costs of litigation conducted in the Federal Courts are awarded in accordance with the Federal Courts Rules. They would also presumably know that the Federal Courts Rules do not provide for an hourly rate benchmark (other than an amount per unit of service as described in the Tariff) such as the Rules of Civil Procedure apparently do. Given this knowledge, it is surprising that Mr. Galati would seek an order of costs in excess of what he would have billed a client for the same services.
[21] As a self-represented litigant, the best Mr. Galati could hope for, under the Federal Courts Rules and the jurisprudence on self-represented litigants is to recover his regular hourly rate: see Thibodeau v. Air Canada, 2007 FCA 115 (CanLII), [2007] F.C.J. No. 404, at paragraph 24.
[22] I might add that a claim for solicitor-client costs by a self-represented litigant is an oxymoron. A self-represented litigant, by definition, has no counsel and therefore no out-of-pocket expenses for which full indemnity is appropriate.
[23] As for the CRC, its claim for solicitor-client costs would be limited to its actual out-of-pocket expense for legal fees. If, as appears to be the case given Mr. Slansky’s request that any costs awarded by paid to him personally, counsel is acting pro bono, then the same considerations apply. Any award of solicitor-client costs would be limited to Mr. Slansky’s regular hourly rate. One is left to wonder why experienced counsel before the Federal Courts would seek costs calculated on a basis other than that provided by the Federal Courts Rules.
The first hurdle Rocco had to overcome was that he hadn't actually won his initial case. He'd made an application that failed. Nadon was denied his appointment after the Supreme Court itself decided to review if Nadon could be appointed under the complex rules regarding regional representation.
[28] The difficulty confronting the Joint Applicants is that they were not successful in their application. The Federal Court found that the Joint Application “was derailed and supplanted by the Reference”: see Reasons at paragraph 12. It was therefore dismissed for mootness. Mr. Galati and the CRC take the position that because the Reference produced the result which they sought in the Joint Application, they were successful and entitled therefore to their solicitor client costs. It doesn’t work that way. 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.
[29] To the extent the right to solicitor client costs accrues only to successful litigants, the Joint Applicants do not satisfy that test. Given this finding, it is not necessary for me to examine the other elements of the test which Mr. Galati and the CRC propose other than to comment that it is far from obvious that the interpretation of sections 5 and 6 of the Act goes to the “architecture of the Constitution”.
So he'd already failed in his appeal at this point but the FCA decided to continue beating him over the head saying how the case was of no real importance and Rocco hadn't done much anyhow.
And then this solid kick to Rocco's private parts;
[32] For these reasons, then, the Joint Applicants have not shown that they come within the class of litigants who might be awarded solicitor client costs in public interest constitutional litigation, whether by right or through the exercise of the Court’s discretion. It is therefore unnecessary for me to deal with the argument as to constitutional entitlement as it does not arise on these facts. That said, it sometimes occurs that a party makes an argument that is so scandalous that it deserves to be condemned, whether it arises on the facts of the case or not. This is such a case.
It's a serious rebuke when a court calls a lawayer's conduct scandalous. What had Rocco done to deserve this?
[33] The following passages from Mr. Galati’s memorandum of fact and law encapsulates the argument which was made in this case:
With respect to the Respondent’s position that the right to solicitor-client costs has no nexus to a fair and independent judiciary, the Appellant (Rocco Galati) states that in such cases, which involve nothing but protecting the integrity of the constitution, constitutionally offensive legislation, or Executive action violating the “architecture of the constitution”, it has everything to do with a fair and independent judiciary. While the state apparatus is fully and amply funded to defend such violations, and a citizen who gets no personal benefit, per se, from upholding the integrity, structure and dictates of the Constitution, in successfully challenging such constitutional violations, to be denied his solicitor-client costs doing so can only lead to one conclusion in fact and in perception.
That conclusion is that any Court siding with the state on such cases cannot be said to be “fair or independent” in the least sense, in fact, and in perception, that Court would be, in fact and in perception, ‘in bed’ with the state Respondents.
Mr. Galati’s memorandum of fact and law at paragraphs 20-22 (emphasis in the original).
[34] It is important to understand what is being said here. Mr. Galati and the CRC 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.
[35] 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.
[36] In the circumstances, I am of the view that the Federal Court committed no error justifying our intervention and that even when, particularly when, the Joint Applicants’ arguments are analyzed, this appeal should be dismissed with costs. The Attorney General seeks total costs in the amount of $1,000. In the circumstances, that is more than reasonable. I would therefore dismiss the appeal with one set of costs to the Attorney General fixed at $1,000, all inclusive.
Gonzo logic? From Canada's greatest constitutional litigator? This insult cannot stand! On to the Supreme Court of Canada for justice! Let's find out who they're in bed with.
