Lawyer who challenged Nadon appointment will appeal ruling on costs

he Toronto lawyer who led a challenge against Marc Nadon's nomination to the Supreme Court of Canada says he is appealing a Federal Court ruling that denied him the bulk of his legal costs.

OTTAWA — The Toronto lawyer who led a challenge against Marc Nadon’s nomination to the Supreme Court of Canada says he is appealing a Federal Court ruling that denied him the bulk of his legal costs.

Rocco Galati and the Constitutional Rights Centre claimed more than $68,000 in fees and costs for their work in bringing their application before the Federal Court of Canada.

The court instead awarded them a single $5,000 lump sum.

“This judgment is just reflective of a privileged world of Versailles under Louis XIV,” Galati fumed Wednesday after learning of the decision.

“It’s just an affront to the rule of law.”

Galati filed for a total of $51,706.54, while the centre sought $16,769.20 for work done by lawyer Paul Slansky.

Both bills were unwarranted, Federal Court Judge Russel Zinn wrote in his decision.

Zinn said the application challenging the 2013 appointment of Nadon – whose nomination was ultimately rejected in a ruling by the high court itself – would have been complicated and important had it gone ahead.

However, he says it was essentially sidelined by a subsequent governmental reference to the Supreme Court, rendering the cost claims excessive.

“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,” Zinn wrote.

“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.”

The challenge was nonetheless important, the judge acknowledged in awarding the single lump-sum payment.

“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.”

Galati called the decision “bizarre.”

“He says solicitor-client costs, even if not a constitutional right, are only given in the most exceptional and rare cases,” he said.

“I can’t think of a more exceptional and rare case than the Nadon challenge, can you? In the history of Confederation? I can’t think of a rarer case. It’s never happened and I doubt if it’s going to happen again.”

Galati had argued that Nadon, a judge of the Federal Court of Appeal, was not eligible to be appointed to one of the three high court seats reserved for Quebec.

The Supreme Court agreed and Nadon’s appointment was rescinded, resulting in a year-long vacancy on the high court. Quebec Court of Appeal judge Clement Gascon was appointed in June to fill it.

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