Rocco Galati denied all but $5K in costs for Nadon court challenge

The Toronto lawyer who helped sink Prime Minister Stephen Harper's 2013 Supreme Court pick has been denied full reimbursement for costs incurred for his initial Federal Court challenge.

Rocco Galati, whose challenge led to a Supreme Court decision that voided Marc Nadon's seat in March, went to Federal Court seeking more than $68,000 in costs, based on work performed by himself and the co-director of the Constitutional Rights Centre, Paul Slansky.

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In a Nov. 20 decision, Justice Russel W. Zinn awarded the lawyers just $5,000.

Galati gave notice of his intention to appeal Wednesday, and said the judge's decision was a "slap in the face."

"This is an example of the Versaillian world we live in, where privilege reigns," Galati told CBC News in an interview Thursday. "We're either a mature country or we're not."

​The application for costs relates not to the Supreme Court hearing, but to Galati's initial application to the Federal Court over the Nadon appointment. After Galati's action, the Harper government moved to change legislation to address concerns over the Quebec judge's qualifications and then referred the question to the Supreme Court.

Galati's case became moot when the Supreme Court found Nadon's appointment to be unconstitutional. But that doesn't mean he didn't incur business costs to prepare and argue it, Galati says.

'Disincentive' to challenge government

The lawyers who defended the government were paid handsomely, he points out, while he and his colleague had to pay for the challenge out of their own pockets. 

The costs were calculated based on a billing rate of $800 an hour. The pair together said this stage of the case required about 70 hours of work, something the judge agreed with the federal government respondents was "excessive and unwarranted."

Galati accepts that reimbursing costs may need to be limited to rare or narrow cases, but it's hard to think of a more exceptional case than the Nadon challenge, he said.

Galati argued that to "deny those costs constitutes a breach of the constitutional right to a fair and independent judiciary."

In his decision, Zinn agreed that "but for the applicants commencing this application, it was unlikely that the [Supreme Court] reference would have occurred."

"To that extent, one could argue that the applicants have done Canada a service and should not be out-of-pocket in so doing," the ruling says, in awarding only a $5,000 lump sum.

Not covering the legal costs for these kinds of cases is a disincentive for citizens to litigate against their government, Galati said.