Decisions, Decisions, Decisions: Alani v. Canada (Prime Minister), 2015 FC 649Alani v. Canada (Prime Minister), 2015 FC 649 (CanLII)
The challenge to non-appointments to the Canadian Senate survived a motion to strike last week in Alani v. Canada (Prime Minister), 2015 FC 649. Harrington J. rejected — for the moment — government arguments based on justiciability and jurisdiction. On justiciability, Harrington J. concluded:
 Without a doubt there is a political aspect to Senate appointments. From time to time the Senate, or some Senators, may be a source of embarrassment to the Government, to the House of Commons as a whole, and indeed, to many Canadians. However, I know of no law which provides that one may not do what one is otherwise obliged to do simply because it would be embarrassing. The Supreme Court made it perfectly clear in the Reference re Senate Reform that significant changes to the Senate, including its abolishment, require a formal constitutional amendment.
On jurisdiction, Harrington J. expressed some doubt about whether there was a reviewable decision in issue but also refused leave to the applicant to amend his notice of application:
 The language of this decision, and the circumstances in which it was allegedly made, are not set out in the pleadings. Was this a statement made in the House of Commons? Or was it a statement made during a media scrum? An off-the-cuff remark may not be a decision at all. Nevertheless, I am required to assume, at this stage, that a decision was made.
 However, [the applicant] wishes to delete his reference to the Prime Minister making a decision. He rather seeks a declaration with respect to the Prime Minister’s failure, refusal or unreasonable delay, or alternatively the Queen’s Privy Council acting on his recommendation to advise the Governor General to fill existing vacancies in the Senate. This is not acceptable.
 The whole basis on which this application has proceeded is that it is a judicial review of a decision. If those assertions are deleted, the application would look like a reference. Only federal boards and tribunals and the Attorney General of Canada may refer matters to the Court. Mr. Alani cannot.
There is a lot to unpack here. There are two different concerns about the apparent absence of a “decision”, one of jurisdiction and one of justiciability. First, there must be enough to trigger the Federal Court’s jurisdiction (which, remember, is statutory). But this jurisdiction has been relatively widely construed:
 Subsection 18.1(1) of the Federal Courts Act provides that an application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by “the matter in respect of which relief is sought.” A “matter” that can be subject of judicial review includes not only a “decision or order,” but any matter in respect of which a remedy may be available under section 18 of the Federal Courts Act: Krause v. Canada, 1999 CanLII 9338 (FCA),  2 F.C. 476 (C.A.). Subsection 18.1(3) sheds further light on this, referring to relief for an “act or thing,” a failure, refusal or delay to do an “act or thing,” a “decision,” an “order” and a “proceeding.” Finally, the rules that govern applications for judicial review apply to “applications for judicial review of administrative action,” not just applications for judicial review of “decisions or orders”: Rule 300 of the Federal Courts Rules (Air Canada v. Toronto Port Authority, 2011 FCA 347).
This seems broad enough to me to encompass the course of conduct impugned in the application, of which the Prime Minister’s statement is merely an example. It also bears mentioning, that if the leader of the Opposition is elevated to even higher office in the Fall, a deliberate policy of non-appointment on his part will present precisely the same issue, as the policy is unlikely to be formalized in any “decision”. In any event, if the Federal Court does not have any statutory basis on which to proceed, the applicant could simply start over in a provincial superior court. Alternatively — if we are being hyper-formalistic about it — the applicant could wait until another senator leaves office and then commence fresh proceedings, but problems would arise even in that situation because the time limit for an application in Federal Court is 30 days and most reasonable people would probably accept that the Prime Minister can take longer than 30 days to fill a vacant seat. Read generously, the “decision” mentioned in the notice of application is the “decision” not to appoint — a “failure, refusal or delay” by the federal executive to perform (allegedly) a legal duty — and there is no need for any amendments anyway. It is not the applicant’s fault that he is challenging an omission to act rather than a positive act.
The justiciability concern — which is just as much a concern for a provincial superior court as for the federal courts — is more important but does not seem decisive to me. Is the applicant asking the Federal Court to trespass in the political domain by responding to a hypothetical question? Assuming the issue is characterized as the omission to fulfill a legal duty to appoint senators, I do not see how this is a hypothetical question in the nature of a reference. There is a concrete issue here which has not been plucked from thin air. Indeed, it is hard to imagine any circumstances in which an individual would have the sort of individualized interest that would make an application markedly different from Mr. Alani’s. Do we really have to wait for the Senate to cease to function before someone could challenge the legality of senatorial non-appointments? I hope not.
Perhaps the applicant could have done a better job in pleading particulars, but fundamentally the application seems strong enough to deserve a hearing on the merits.