Court slams 'gonzo logic' in wake of failed Nadon appointment

Federal Court of Appeal denounces the claims put forward by two lawyers who worked on the case

TORONTO – Two lawyers who challenged the Harper government’s ultimately aborted appointment of Marc Nadon to the Supreme Court of Canada have been handed a judicial spanking for trying to collect tens of thousands of dollars for their efforts.

In a sharply worded decision released Tuesday, the Federal Court of Appeal denounced the claims put forward by Rocco Galati and Paul Slansky as misguided and excessive.

The judges were especially scornful of Galati’s assertion that denying him full legal costs would effectively mean the court was “in bed” with the government.

“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,” Judge Denis Pelletier wrote for the court.

“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.”

In 2013, then-prime minister Stephen Harper appointed Nadon to the country’s top court. Galati challenged the eligibility of the Federal Court of Appeal judge to fill one of three seats reserved for Quebec. He put his challenge on hold when the government referred the issue to the Supreme Court, which then scuttled Nadon’s appointment.

Galati asked for $51,706.54—based on a charge of $800 an hour he said was reasonable for a lawyer with his experience. Slansky, acting for the Constitutional Rights Centre, wanted $16,769.20 for helping Galati. In December 2014, Federal Court awarded them a combined $5,000 in a nod to the work they had done.

The lawyers appealed. They argued they had a constitutional right to their full legal costs on the grounds they had derived no personal benefit from the Nadon challenge, which they said went to the “architecture of the Constitution.”

The Federal Court of Appeal was having none of it.

“When the partisan political overlay is stripped away, this was a lawyer’s issue with very limited consequences beyond legal circles,” Pelletier wrote for the panel. “It certainly did not go to the ‘architecture of the Constitution’.”

He also rejected their claim that the challenge had been successful given that Nadon’s appointment did not go through.

“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,” Pelletier said.

“It may make them successful politically or in the popular press, but that is a different matter.”

The Appeal Court called it surprising the lawyers would claim $800 an hour — more than they normally charge their clients — saying the amount was excessive.

While Galati maintained nothing prevents a self-represented litigant from claiming legal costs, Pelletier called the concept an “oxymoron.”

“A self-represented litigant, by definition, has no counsel and therefore no out-of-pocket expenses for which full indemnity is appropriate.”

Judge David Stratas also took issue with Galati’s assertion that because the government pays judges, their failure to order the government to pay private-sector lawyers would indicate judicial bias.

“An officer of the court should never make such a submission,” Stratas said in separate comments.

“There are many cases where judges, paid by government, have condemned government misconduct and have ordered government to do something against its will.”

The court ordered the lawyers to pay $1,000 in costs, with Stratas saying he would have awarded more if the government had asked for more.

Neither Galati nor Slansky responded immediately to a request for comment.