On June 6, 2017, a three judge panel of the Federal Court of Appeal unanimously upheld the Federal Court’s order that the applicant, Aniz Alani, pay the government’s costs of defending the Senate vacancies constitutional challenge. The Federal Court concluded in October 2016 that the application for judicial review seeking a declaration as to the Prime Minister’s obligation to fill Senate vacancies within a reasonable time had become moot following the election of a new government on October 19, 2015 and subsequent change in policy.
The Federal Court of Appeal concluded that it was open to the Federal Court to consider that the government had extended a “with prejudice” settlement offer on January 21, 2016 (expiring January 22, 2016), the effect of which “was to allow the appellant to walk away from the litigation once the application became moot with no exposure to costs.”
With respect to the public interest nature of the case, the Federal Court of Appeal stated:
Without doubt, there are cases of great public moment where the issues are novel and advancing those issues is in the public interest so that no award of costs ought to be made against the public interest litigator. However, such litigants are not automatically immune from an award of costs (Canadian Environmental Law Assn. v. Canada (Minister of the Environment) (2000), 258 N.R. 95, 34 C.E.L.R. (N.S.) 159 (FCA)). It follows that it was open to the Federal Court to make the costs order it did notwithstanding the asserted public interest in the litigation. No error of fact or law has been demonstrated.
Finally, the Federal Court of Appeal considered that this was an appropriate case for the parties to bear their own costs of the appeal, and no costs were ordered in that Court.
The Court’s Reasons for Judgment are available here.