On November 10, 2015, the Federal Court ordered that the hearing of the application for judicial review scheduled for December 9 and 10, 2015 be postponed pending the resolution of the Government’s appeal of the Court’s May 21, 2015 decision declining to dismiss the application.

The Government’s appeal is currently before the Federal Court of Appeal. A hearing date for the appeal has not yet been scheduled. In its appeal, the Government argues that the Federal Court erred by not dismissing the application for judicial review for lack of justiciability and jurisdiction.

The Federal Court’s adjournment order followed a written request from the Applicant setting out the rationale for delaying the hearing until after the Government’s appeal has been decided by the Federal Court of Appeal, stating in part:

In light of the stated intention of Prime Minister Trudeau’s majority government to establish a non-partisan advisory body to recommend Senate appointments, and what I would anticipate to be a reasonable delay in implementing this proposal pending which a corresponding delay in filling existing vacancies would seem unobjectionable, the urgency of determining the scope of a Prime Minister’s legal obligation to advise the Governor General to fill Senate vacancies is, in my respectful view, less immediate than it was before the issuance of the writ of election. While I remain of the view that the legal issues raised in the Application continue to warrant the Court’s adjudication so that the existing legal uncertainty may be addressed for the benefit of the public and the current as well as future governments, the timing of such guidance is less relevant given that the current Prime Minister has not expressed an intention not to fill Senate vacancies indefinitely.

The Respondents’ appeal raises objections as to justiciability and jurisdiction, which overlap the same objections raised in response to the Application.

If the Respondents’ appeal is unsuccessful, I respectfully submit that it is reasonable to expect that the issues to be resolved in the application may be significantly narrowed. As a result, the existing hearing duration of two days before the Federal Court may be reduced accordingly. Moreover, it is reasonable to anticipate that, by the time the Federal Court of Appeal has issued its decision in respect of the Respondents’ appeal, the present government may have taken steps to implement reforms in the Senate appointment process, in consideration of which I may be independently prepared to reconsider the utility of proceeding with the Application at all.

Meanwhile, if the Respondents’ appeal is successful, the litigation will come to an end but after a hearing of one to three hours rather than after a two day hearing. While my position in respect of the appeal remains that it is without merit, it is in my respectful submission appropriate to consider this potential outcome in determining the most efficient way forward.

On November 10th, the Government responded by indicating that it had no objection to the Applicant’s request.

A copy of the Court’s formal adjournment order is available here.

The Government’s written argument in support of its appeal is available here. The responding argument from the Applicant (Aniz Alani) is available here.

An update will be posted on this website when a hearing date has been set by the Federal Court of Appeal.