On January 25, 2016, a three judge panel of the Federal Court of Appeal (Pelletier, de Montigny and Gleason JJ.A) unanimously dismissed the federal government’s appeal of a Federal Court decision declining to dismiss the application for judicial review.

In brief reasons provided orally from the Bench, the Court stated that it was not persuaded that the motions judge (Justice Sean Harrington) erred in finding that it was not plain and obvious that the application had no chance of success.

With respect to the procedure used by government to seek to have the case dismissed, the Court stated that notwithstanding the Supreme Court of Canada’s comments in Hryniak v. Mauldin, it was preferable that objections to applications for judicial review be heard at the same time as all issues with a complete record before the Court.

The Court ordered the Appellants (Prime Minister and Governor) general to pay the Respondent (Aniz Alani) costs of the appeal fixed at $1,500.

Formal reasons for judgment will be posted on this site once they become available.

With Canada’s appeal from its unsuccessful motion to strike having been rejected, the next step is for the parties to seek directions from the Federal Court regarding the scheduling of a hearing to determine the merits of the application. Lawyers for the federal government have indicated that mootness will be raised as an objection to the application, in addition to the government’s existing objections set out in its written arguments already filed in the application.