Federal Court


It was premature to say matter was not justiciable

In December 2014, Prime Minister was said to have publicly communicated his decision not to advise Governor General to fill existing vacancies in Senate. Applicant, who was Vancouver lawyer, considered “decision” illegal. He applied for judicial review of Prime Minister’s decision. Applicant sought declaration that Prime Minister must call upon Governor General to appoint his nominees to Senate within reasonable time after vacancy occurred. Deputy Attorney General brought motion for order that application for judicial review be struck at outset, before it was heard on merits. Deputy Attorney General submitted it was plain and obvious that application was bereft of any chance of success. Motion dismissed. It was not plain and obvious that applicant had no chance of success. Existence and scope of any constitutional convention whereby Governor General would only fill vacancies in Senate on advice of Prime Minister had not been established. Nor had it been established that decision was grounded on valid constitutional convention. It was premature to say matter was not justiciable. If it was merely matter of interpreting statute, and it was not plain and obvious that it was not, then certainly matter was justiciable.

Alani v. Canada (Prime Minister) (May. 21, 2015, F.C., Sean Harrington J., File No. T-2506-14) 255 A.C.W.S. (3d) 99.

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