Sheppard v. Canada (Commissioner For Federal Judicial Affairs), docket T-1864-96

     T-1864-96

Between:

     MR. JUSTICE JOHN E. SHEPPARD,

     Applicant,

     - and -

     THE COMMISSIONER FOR FEDERAL

     JUDICIAL AFFAIRS,

     Respondent.

     REASONS FOR ORDER

Muldoon, J.

     This dispute sounds basically in statutory interpretation, and each party cites much of the same jurisprudence and doctrine as the other party. This application came on for hearing in Toronto, on Thursday, June 19, 1997 in tandem with the hearing of Mr. Justice Thomas A. Beckett's application, T-1516-95, to quash a decision of the same respondent. The applicant has tendered three affidavits which the Court notes, sworn respectively August 14, 1996, April 18, 1997 and May 1, 1997.

     The applicant is a judge of and in the Ontario Court of Justice (General Division) performing his judicial duties on lawful assignment to the trial court in Whitby, Ontario. He became such a judge on September 1,1990, upon merger of the Supreme and District courts of Ontario. Before that, the applicant had been a District Court judge, since September, 1987. The applicant was sworn in as a judge of the General Division, in September, 1990, but was unaware of any assignment by the chief justice to any particular region, but just continued to keep his chambers in Newmarket and performed his judicial duties throughout the region known as Central East. At that time (September 1, 1990) and until June, 1991, the circumstances were these: the applicant continued to reside in North York (just a few kilometres south of the boundary of the Central East Region, York Region Judicial District), he had his chambers in Newmarket, and he travelled on judicial duties to each of the following courthouses -- Barrie, Bracebridge, Lindsay, Peterborough, Cobourg, Whitby -- for which he received travel allowances under the Judges Act, R.S.C. 1985, Chap. J-1 (hereinafter: the Act).

     In paragraph 7 of the applicant's affidavit sworn on August 14, 1996, he asserts:

When I sought reimbursement for travel expenses incurred in travelling [from home] to Newmarket, the then Commissioner for Federal Judicial Affairs, Mr. Pierre Garceau, denied my claim stating that my "official place of residence is ... Newmarket, even if you actually live in another place ...". Attached hereto and marked Exhibit "A" to this my affidavit is a true copy of the letter dated November 9, 1990 from the then Commissioner, Pierre Garceau.

(applicant's application record [AR] tab 2, pp. 7 & 8)

     On or about June 1, 1991, the applicant says, he was assigned by his Chief Justice to perform his duties in the Whitby courthouse, as a base, where he remains.

     The residence requirements for the section 96 judges of Ontario were virtually all repealed by section 28 of that Act of Parliament called the Ontario Courts Amendment Act, 1989, S.C. Chap. 17. The Ontario legislature, however, enacted the Courts of Justice Act, R.S.O., Chap. 43 which, by subsection 15(3) provides:

15.(3) No judge of the General Division who was a judge of the High Court of Justice or the District Court of Ontario before the 1st day of September, 1990 shall be assigned without his or her consent to a region other than the region in which he or she resided immediately before that day.

Now, the federal legislation of the time, (or any time), gives no hint that Parliament repealed residence requirements conditionally, if that were the case, expecting that the provincial legislatures would fill the statutory lacuna, as many, if not most have done, as, for example The Queen's Bench Act, S.M. 1988-89, Chap. 4, section 9 of Manitoba, recited in the companion reasons, of even date, in Mr. Justice Thomas A. Beckett v. Commissioner for Federal Judicial Affairs, T-1516-95. That case was heard in tandem with the present case, in Toronto, on June 19, 1997, and results in an order in the nature of mandamus against the same respondent. Those reasons and these are in pari materia.

     The respondent, as in the Beckett case, is a public official serving as the Commissioner for Federal Judicial Affairs, pursuant to an appointment in accordance with section 73 of the Act. The Commissioner has "the rank and status of a deputy head of a department and" * * * is "appointed by the Governor in Council * * *". More particularly, one of the respondent's responsibilities is to oversee the administration of Part I of the Act, which includes inter alia, those provisions dealing with travel, expenses and other allowances payable to judges in regard to the performance of their duties.

     It should be noted that in 1989-90 the government and legislature of Ontario reorganized the courts of that province by exercising the power conferred on the province pursuant to section 92, head 14 of the Constitution Act, 1867, U.K. 30 & 31 Victoria, Chap. 3. The County and District Courts, inferior courts of record, whose judges were appointed and paid by the federal authority (the Dominion, as it was rather felicitously called), were abolished and the judges were all sworn in as judges of the newly amalgamated superior court of record, the Ontario Court of Justice (General Division). Thus was the applicant translated in and to the new superior court, still within "the section 96 judiciary" as he had previously been. (Amending Order-in-Council PC 1991-447, p. 4). Under the notable check-and-balance feature of Canada's Constitution concerning the judiciary, the provinces constitute, organize and maintain superior courts of both civil and criminal jurisdiction under section 92, head 14 and (in one old-fashioned but succinct word) the "Dominion" appoints the judges under section 96, and pays the salaries, allowances and pensions of all superior court judges under section 100 of the Constitution Act, 1867. While the Judges Act, being an Act of Parliament has a national, trans-provincial reach, it did and does, also, contain provisions specific to each province's court structure and nomenclature.

     If the sweeping away of the Act's residence requirements in 1990, without any provincial legislation to replace them, would have then validated the applicant's travel allowance claims, assuming that he formally made such claims, then he would be entitled to have accurate claims paid from 1990 or whenever the applicant first thereafter submitted his claims, to the present and beyond.

     The exact decision of the respondent which the applicant seeks to have quashed is expressed in the Commissioner's letter dated July 18, 1996. Addressed to the applicant, a copy of said letter is appended as exhibit C to his affidavit, and it runs:

Dear Mr. Justice Sheppard:

I refer to your letters of April 10 and May 22, 1996, and attachments thereto, regarding your request for a travel allowance.

You are claiming a travel allowance for your daily commute pursuant to subsection 34(1) of the Judges Act. Yet subsection 34(1) states that it is to be read subject to sections 36 to 39. Under section 38, as a judge of the Ontario Court (General Division) you must live within the region for which you were appointed or assigned in order to receive a travel allowance, unless you reside at a place approved by the Governor in Council pursuant to subsection 36(2).

In our view, your claim for a travel allowance does not differ essentially from that of Mr. Justice T.A. Beckett of the Ontario Court (General Division). Unified Family Court, who as you know has applied to the Federal Court (Trial Division) for a judicial review of my predecessor's decision refusing to grant him travel allowance.

Pleadings in the case of Mr. Justice Thomas A. Beckett v. The Commissioner for Federal Judicial Affairs were closed in November 1995, and a hearing was scheduled for May 14, 1996. On May 6, 1996, the hearing date was adjourned sine die by Mr. Justice Cullen at the request of Mr. Justice Beckett.

That being the case, due to the similarities between Mr. Justice Beckett's situation and your own, I would not be prepared to vary my predecessor's refusal to grant you a travel allowance before a decision has been rendered in the Beckett case.

Finally, as requested in the last paragraph of your letter of April 10, 1996, I hereby confirm that no judge of the Ontario Court (General Division) who does not reside within the region for which he or she was appointed or assigned, and whose place of residence has not been approved by the Governor in Council, is in receipt of a travel allowance for the period beyond the first six months following his or her appointment or assignment.

I regret that I am not able to provide you with a more favourable response.

(AR, pp. 17 & 18)

     The respondent invoked subsection 36(1) of the Act, as he did in Mr. Justice Beckett's case, but it, a later amended and unrepealed residence provision of the Act, does not impact on Ontario judges at all, because it refers exclusively to section 96 judges in and of Nova Scotia, Prince Edward Island and British Columbia. The Court here adopts the reasons relative to section 36, both subsections, expressed in the companion case of Beckett, T-1516-95. It is enough to note that subsection 36(2) emphasizes "the right of a judge to be paid a travel allowance under subsection 34(1).

     This Court's view of the jurisprudence and doctrine cited herein on each side will not be recited, but that view and understanding of the sometimes contradictory jurisprudence and doctrine, lead only to the conclusions articulated herein and in the Court's concurrent order.

     Unfortunately for those who must try to interpret the Judges Act, subsection 34(1) contains an anomaly in and for Ontario at least, which surely ought to be ignored, rather than forcing this Court to weave legislative provisions which are the unique prerogative of Parliament.

     Here is the text of subsection 34(1), which creates and expresses the "right of a judge to be paid travel allowance".

34.(1) Subject to this section, and sections 35 to 39, a judge of a superior court [inter alia, the applicant] or county court or of the Tax Court of Canada who for the purposes of performing any function or duty in that capacity attends at any place other than that at which or in the immediate vicinity of which the judge is by law obliged to reside is entitled to be paid, as a travel allowance, his moving or transportation expenses and the reasonable travel and other expenses incurred by him in so attending.

It is the expression "place * * * at which or in the immediate vicinity of which the judge is by law obliged to reside", which evinces the anomaly, since counsel on each side were unable to identify any law which obliges an Ontario judge to reside in or at any particular place. There is no such law in force in Ontario. Subsection 34(2) disentitling a judge from travel allowance for attending at or in the vicinity of the judge's place of residence is certainly not engaged here. Section 35 is also of no concern here, for it concerns county court judges only. Section 36 has already been noticed. Section 37 applies to county court judges only. Section 38 applies only to Ontario district court judges. The respondent has not been able to cite a single provision of law whereby the applicant must be refused his travel allowance in this case.

     The above noted anomaly in regard to the Ontario judges, is not such in regard to judges of other provinces enacted, no doubt, in view of section 92, head 14 of the 1867 constitution. The Manitoba example, one of several, has been cited above.

     Other provinces have enacted the same kind of legislation concerning the residence requirements for the judges of provincial superior courts, despite the fact that their superior court judges are all appointed pursuant to section 96 and paid allowances by Parliament pursuant to section 100 of the Constitution Act, 1867. Those provinces undoubtedly consider that the residence requirements are an exercise of their powers to constitute, maintain and organize the provincial superior courts, (and county courts while there were county courts) pursuant to section 92, head 14 of the 1867 union Act. The notable and ominous exception from the list of provinces which have enacted this kind of legislation is Ontario.

     Therefore, whereas the expression in the Judges Act's subsection 34(1), "* * * the judge is by law obliged to reside * * *" has precise meaning in the provinces with pertinent legislation on the subject, that expression in subsection 34(1) of the Act has no meaning in Ontario. It has no meaning because of the lack or lacuna in the legislation of Ontario. Neither side could cite any such law of Ontario. It may be noted in passing that Parliament took the occasion of enacting the Nova Scotia Courts Amendment Act, S.C. 1992, Chap. 51, section 13, to repeal section 35 of the Judges Act without enacting any replacement. (Respondent's application record, (RR), tab 6.) So, the upshot of the foregoing is that the words "obliged by law to reside" in that federal statute, the Judges Act, simply do not apply in Ontario.

     Because the "obliged by law to reside" words do not apply to the applicant they are "invisible" in his case and the grammatical and legal requirements for subsection 34(1) of the Act present as follows: "* * * attends at any place other than that at which or in the immediate vicinity of which the judge * * * resides". Those words, then, define "the right of [the applicant] to be paid a travel allowance under subsection 34(1)" as it is described in subsection 36(2) of the Act.

     Well, why does the respondent refuse to pay the applicant the travel allowance to which subsection 34(1) entitles him as of right? It appears that the respondent is a conscientious and righteous public servant of deputy minister rank, whose, or whose solicitors' thinking is infected with the ancient notion of in consimili casu, consimile debet esse remedium, or "in a similar case, there ought to be a similar remedy". That precatory slogan, of ancient origin, appears to have no place here, for Parliament's recent vacation of the judges' residence requirements, and the Ontario legislature's declining to legislate in that field open to it, have cumulatively placed Ontario judges in a distinctly dissimilar position. Indeed an ancient maxim which is alive and well in Canada, is: Lex Angliae [lex Canadae, too] sine Parliamento mutari non potest, meaning "English law [Canadian law, too] can be changed only by Parliament". In a Canadian federal context, "Parliament" must be held to include provincial legislatures because of the constitutional division of powers.

     Now, there appears to be no reason why Parliament, having vacated a field generally to provincial legislation, may not retain legislative regulation of the subject in one or a few provinces, so long as by doing so, it does not violate section 15 of the Canadian Charter of Rights and Freedoms. It is salient, however, that in this instance, Parliament abandoned the field and chose not to retain any exercise of legislative power in regard to Ontario judges' residence requirements.

     This Court holds that the passages cited from P.A. Côté, The Interpretation of Legislation Canada (Cowansville, Qué.: Les Éditions Yvon Blais, Inc.), 2nd ed., 1992, and from Ruth Sullivan, Dreidger on the Construction of Statutes (Toronto: Butterworths), 3rd ed., 1994), do not demonstrate that this or any Court is empowered to legislate in the parliamentary, or in a provincial, field of competence. In this case, Parliament's, and the Ontario legislature's, language, or absence of language, do not admit of two constructions; and there is just no ambiguity whatsoever. There may have been some legislative oversight, but even that does not confer upon any Court, superior or otherwise, the jurisdiction to legislate. And a good thing, too. The Charter accords Courts much scope to engage in, or interfere with, the legislative process, and it is abundantly sufficient. In any event, the respondent - assimilated as he is to a deputy minister of justice - has had plenty of time to propose or sponsor specific legislation in order to rectify whatever anomaly Parliament may espy.

     Section 36, as has been seen, is applicable to judges other than Ontario judges. Subsection 34(1)'s words "obliged by law to reside" apply to judges other than Ontario judges, but otherwise is of general application. If other provinces should repeal their judges' residence provisions, their judges would be in the same position as the Ontario judges. Of course, the respondent cannot compel the Ontario legislature to enact provisions the same as, or similar to, those in force in Manitoba and other provinces. Equally, however, the respondent cannot persuade this Court to usurp Parliament's legislative powers.

     The respondent's concern for the taxpayers' pennies (an honourable and justifiable attitude for a public officer) is manifested in paragraph 29 of his memorandum of fact and law, thus:

29.      It is submitted that the courts should not selectively read a statute in a narrowly directed way which is contrary to the plain expression of the legislative intention of Parliament. It is submitted that this is particularly true where the narrow contra-purposive reading is directed at providing for a massively greater entitlement of a group to public resources. In this case, the reading of ss. 34-38 of the Judges Act proposed by the applicant would entitle all judges governed by those sections to the reimbursement of daily travel expenses between the Courthouse to which they were assigned, and any location in Canada in which they chose to live. It is submitted that it would be an absurdity to attribute such an intention to Parliament.

(RR, tab 2, pp. 8 & 9)

That passage may also manifest the respondent's solicitors' flight of fantasy, but concern for the taxpayers is laudable.

     The respondent's solicitors assume that Parliament's intention is that which the respondent would have it to be. It is speculative, but perhaps the uniquely great geographical extent of Ontario's land mass and the size of its judicial districts and regions compared, especially in northern Ontario, with the great distances between settled places, was the reason why Parliament - or the Ontario legislature - declined to enact judges' residence regulations. This Court does not know whether such speculation be correct or not, and neither does the respondent by all accounts.

     The more recently amended, present version of the Act's section 38 runs, thus:

38. A judge of the Ontario Court (General Division) whom, for the purposes of performing any function or duty in that capacity, attends at any judicial centre within the region for which he was appointed or assigned, other than the judicial centre at which or in the immediate vicinity of which the judge resides, is entitled to be paid, as a travel allowance, his moving or transportation expenses and the reasonable travel and other expenses incurred by the judge in so attending.

The above expression of Parliament's intent could well be seen to corroborate the speculation to the extent of an inference.

     On the other hand, if the respondent wishes to correct an imbalance in the Act's administration, it would not be unreasonable to pay the applicant's claim in order to "even out" the strange results of the practice described in para. 12 of the applicant's affidavit of August 14, 1996.

     So, neither this Court, nor in truth the respondent can authoritatively assert that the straightforward literal interpretation of the Judges Act, subsection 34(1), in the circumstance of a lacuna in the Ontario legislation, "could lead to an absurdity" because neither this Court, nor the respondent can authoritatively or conclusively assert what exactly was Parliament's intention in regard to Ontario judges. Who can say that it must be exactly the same in regard to other provinces' judges? On the other hand, the Ontario legislature, having no extra-territorial legislative power, does not concern itself about judges in other provinces. Either the federal or the provincial legislature could enact regulations on judges' residences, but both decline to do so. Since this Court is not a legislature, the applicant's application will have to be allowed. He is entitled to his claimed travel allowances for which he has ever submitted a correct "Account for Travelling Allowance (section 34 of Judges Act)" also known as "Compte d'indemnités de voyage (article 34 de la Loi sur les juges)" since the latest of his appointment, assignment and swearing-in as a judge of the Ontario Court of Justice (General Division) in 1990. His entitlement dates back to his being fully eligible to travel to and from Court in his new rôle, at the taxpayers' expense. The travel allowances to be paid to him are those correctly claimed by the applicant for the expense of travel between his home or residence in North York, Ontario to the courthouse in Whitby, Ontario by the least expensive, but dignified, mode of travel, that is: by train, by bus or by privately owned automobile, for example.

     The taxpayers ought not to have to buy lunch for the applicant for each of his ordinary working days in Whitby, for he would in any event be providing himself with lunch on ordinary working days whether he went off to the office daily within the district in which he resides, or not. If that is what the applicant meant by "all other proper allowances" in his originating notice of motion, then this Court denies such claim for his "travel status" is, in this regard, merely a daily going to work and returning home after the working day is ended. He is not in "travel status" in the same sense as being away from home and living in a distant hotel or apartment. A person going to work from home can take his lunch from home, or buy it at a restaurant or cafeteria. A person in full "travel status" can hardly make up a lunch at home each night, for he or she is away from home for a few or many nights. Any other "proper allowances" claimed should, of course, be scrutinized by the respondent as to propriety of payment.

     This Court is not aware of any time limit imposed by law or regulation for the presentation of expense allowances by judges to the respondent, except that such claims ought to be presented by March 31 in each year for expenses incurred during the previous year.

     The Court operates, in the matter of costs on judicial review, under rule 1618, which runs:

1618. No costs shall be payable in respect of an application for judicial review unless the Court, for special reasons, so orders.

No special reason for awarding costs has been shown in this matter. There are, then, no costs awarded to, or payable by, either party. Certainly the Court cannot attribute any improper motives to the respondent for refusing to pay claimed travel allowances, hithertofore.

    

Judge

Ottawa, Ontario

September 18, 1997