Federal Appeal

Civil Procedure


Applicants not entitled to solicitor-client costs

Governor in Council appointed former advocate of Quebec and member of Federal Court of Appeal to Supreme Court of Canada to occupy one of three seats reserved for persons appointed from among judges of Court of Appeal or of Superior Court of Province of Quebec or from among advocates of Quebec. Applicants filed joint notice of application in Federal Court claiming that judge of Federal Court or Federal Court of Appeal was ineligible, pursuant to s. 6 of Supreme Court Act (Can.), to be appointed to one of three Quebec seats and they sought to have judge’s appointment set aside. Governor in Council referred matter to Supreme Court. Applicants consented to stay of joint application and were granted intervener status at reference. Supreme Court ruled that former advocate of Quebec, including former advocate appointed to Federal Court, was ineligible to occupy one of Quebec seats on Supreme Court and judge’s appointment was determined to be invalid. Applicants sought leave to issue notice of discontinuance of joint application and they sought solicitor-client costs. Federal Court judge found that there was no justification for award of solicitor-client costs and single award of costs fixed at $5,000 was made in favour of both applicants. Applicants appealed. Appeal dismissed. Any award of solicitor-client costs would be limited to lawyers’ regular hourly rate. In determining whether applicants satisfied conditions for award of solicitor-client costs, biggest hurdle was that they were not successful in application. Joint application was found to have been derailed and supplanted by reference and it was dismissed for mootness. Fact joint application set into motion series of events that led to outcome applicants sought did not make them successful litigants. Joint application was dismissed. Right to solicitor-client costs accrued only to successful litigants and applicants did not satisfy that test. Applicants were not entitled to special costs pursuant to Federal Court’s discretion over award of costs. Applicants were not successful. Issues raised were of significant importance but interpretation of ss. 5 and 6 of Act did not have widespread impact. Applicants had not established that it would have been impossible to effectively pursue litigation with private means. Applicants had not established that they came within class of litigants who might be awarded solicitor-client costs in public interest constitutional litigation.

Galati v. Harper (Feb. 8, 2016, F.C.A., Pelletier J.A., David Stratas J.A., and Gleason J.A., A-541-14) Decision at 247 A.C.W.S. (3d) 772 was affirmed. 262 A.C.W.S. (3d) 307.

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