Senate Vacancies

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.

On October 13, 2016, the Federal Court (per O’Reilly J.) issued judgment and reasons in the application for judicial review concerning unfilled Senate vacancies.

The Court concluded that the application was moot given that the current Prime Minister “has initiated a new process for appointing Senators, has actually made a number of appointments to the Senate, and has committed to making more appointments in the near future.”

The Court declined to exercise its discretion to decide an otherwise moot case, noting “that there does not appear to be a genuine adversarial context”, the constitutional issue at stake is not one seen as being evasive of judicial review, and that “it is hard to see a significant social cost that the Canadian public would bear if the question Mr. Alani has raised went unanswered for now”. With respect to judicial resources, “a full judgment on the merits would likely require weeks of analysis and writing that could be devoted instead to cases where the parties are engaged in a concrete and significant dispute that demands timely resolution.”

The Court further ordered that Mr. Alani pay the government’s costs.

A copy of the full text judgment is available for download here.

A full text transcript of the June 22, 2016 oral hearing before the Honourable Justice O’Reilly of the Federal Court in Vancouver in the judicial review application concerning the Prime Minister’s delay in filling Senate vacancies is now available for download.

The Court’s decision on the merits of the application for judicial review, and the government’s motion to dismiss for mootness heard concurrently, has not yet been issued. A copy of the final judgment will be posted in this space once available.

The Federal Court heard arguments on Wednesday, June 22, 2016 on the application for judicial review seeking a declaration that the Prime Minister must advise the Governor General to fill Senate vacancies within a reasonable time after they occur.

Following the close of oral arguments, Justice O’Reilly took the decision under reserve. A copy of the resulting written judgment will be posted in this space once it becomes available.

Today the Federal Court will begin hearing oral arguments on whether the Prime Minister has an obligation to advise the Governor General to fill Senate vacancies within a reasonable time after they occur. The hearing will be held in Vancouver and has been scheduled for two days. Although subject to change, the Court registry advises that the Honourable Justice James W. O’Reilly will hear the application.

The Federal Court in Vancouver is located at 701 West Georgia Street. Hearings are open to the public. For more information, please see the Federal Court Policy on Public and Media Access.

Copies of court materials related to the case are available for download here.

A formal response to the government’s motion to dismiss the judicial review application for mootness has been provided and is available at the links below.

In summary, the applicant argues that the issue of whether the Prime Minister has an obligation to advise the Governor General to fill Senate vacancies within a reasonable time remains unresolved and remains relevant even in the absence of an explicit moratorium on Senate appointments, particularly in light of the 19 outstanding vacancies and compromised level of representation in the Senate that results.

At the Court’s discretion, oral arguments on mootness will be heard before or as part of the parties’ overall arguments on the underlying case to be heard in Vancouver on June 22-23, 2016.

The applicant’s motion record including written representations on why the case still raises a live controversy, or alternatively should be heard even if technically moot, is available here. The applicant’s book of authorities containing cases and other reference materials not already included in other court materials is available here.

On May 16, 2016, lawyers for the Prime Minister and Governor General filed a motion with the Federal Court to dismiss the judicial review application concerning the Prime Minister’s obligation to fill Senate vacancies within a reasonable time after they occur on grounds of mootness.

Canada’s written argument states, in part, “…Mr . Alani sought to judicially review the former Prime Minister’s intentions with regard to Senate appointments, and that review became unquestionably moot when the new Prime Minister demonstrated that his intentions are markedly different from those of his predecessor.”

A copy of Canada’s motion record containing its supporting affidavit material, written arguments, and copies of authorities relied upon is available for download using the links below.

Mr. Alani’s responding motion material is due to be served and filed by June 1, 2016. The Court is scheduled to hear oral arguments on the issue of mootness, either before or in parallel with the main application for judicial review, on June 22-23, 2016 in Vancouver, BC.

Motion Materials:

• Canada’s Motion Record, volume 1 of 2 [48MB]
• Canada’s Motion Record, volume 2 of 2 [6MB]
• Extract: Written representations (24 pages)

On March 1, 2016, an open letter to Prime Minister Justin Trudeau urged that he clarify his position on Senate vacancies and how it differs from that of his predecessor, former prime minister Stephen Harper. In particular, the letter proposes:

1. If you agree with Mr. Harper’s position that it’s good public policy to defer to the Prime Minister’s sole discretion to determine if and when Senate vacancies are filled, explain why
2. If you disagree, say so and do something about it. Make clear the criteria by which you consider yourself accountable. Better yet, make yourself (and your successors) accountable through clear and transparent legislation
3. If you remain opposed to the ongoing constitutional challenge to unfilled Senate vacancies, consider withdrawing your government’s demand to recover its legal costs
4. As an alternative to incurring further litigation costs at public expense, consider setting clear timelines for filling Senate vacancies so that a court decision isn’t required.

A copy of the complete letter is available here.

On February 11, 2016, the Federal Court issued a scheduling order fixing a two day hearing in Vancouver from June 22-23, 2016.

At the discretion of the hearing judge, a motion by the Respondents (government) to dismiss the application for mootness will be heard together, or sequentially, with the application on its merits. A timeline for the production of the government’s motion record (May 16, 2016) and reply materials (June 1, 2016) has also been set.

A copy of the order is available here.

On January 25, 2016, a three judge panel of the Federal Court of Appeal unanimously dismissed Canada’s appeal of the Federal Court’s refusal to summarily dismiss the application for judicial review concerning Senate vacancies.

The Court issues brief oral reasons from the bench after hearing arguments the same day. A certified copy of the Court’s Reasons for Judgment is available here.