Date: 20100126
Docket: IMM-1086-09
Citation: 2010
FC 89
Ottawa, Ontario,
January 26, 2010
PRESENT: THE CHIEF JUSTICE
BETWEEN:
LUIS
ALBERTO FELIPA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The core issue in this proceeding is whether a person who is beyond 75
years of age can act as a deputy judge of the Federal Court.
[2]
This issue
presents two principal questions:
a.
Is the
Federal Court a superior court within the meaning of s. 99(2) of the Constitution
Act, 1867?
b.
Does s.
8(2) of the Federal Courts Act preclude a person over 75 years of age
from acting as a deputy judge of the Federal Court?
[3]
Both questions raise similar issues of statutory interpretation. However,
because the first question affects a constitutional provision and the other an
enactment of Parliament, it is preferable that each be addressed separately.
Procedural background
[4]
On August
16, 2009, the applicant requested the adjournment of the hearing of this
application for judicial review, then scheduled for Tuesday, August 18, 2009,
on the ground that the presiding judge, a deputy judge older than 75 years of
age, “…has no jurisdiction, and is no longer vested, as a (Superior) Court
Justice, either under s. 96, or s. 101 of the Constitution Act, 1867
and has no authority to preside pursuant to either the Federal Court
(sic) Act or the Judges Act.”
[5]
On August
18, 2009, after receiving oral submissions from both parties, the hearing was
adjourned to a date to be fixed by the Office of the Judicial Administrator.
[6]
On August
19, 2009, the hearing was rescheduled for Wednesday, September 30, 2009.
It was further ordered that any preliminary motion challenging the
jurisdiction of a deputy judge, over the age of 75, to hear and determine these
proceedings should be filed no later than August 31, 2009. Contrary to the
Court’s usual practice, a deputy judge over 75 years of age was identified in
the scheduling order as the presiding judge to provide a factual basis for any
jurisdictional challenge.
[7]
The
applicant asserted his challenge, the parties filed their respective motion
materials and a notice of constitutional question was served and filed in
accordance with s. 57 of the Federal Courts Act. The hearing concerning
the applicant’s motion was set for September 23-24, 2009, and was completed by
supplementary submissions, requested by the Court, on October 28, 2009.
[8]
The deputy judge assigned to this proceeding served as a judge of the Superior Court
for the province of Quebec until his 75th birthday, at which time he
ceased to hold office.
[9]
When the applicant filed his contestation, several other judges were
acting from time to time as deputy judges. Some were named after holding office
as Federal Court judges. Three were named after serving as judges for the
Superior Court of Quebec. Each deputy judge was over 75 with the exception of
one who had chosen early retirement from the Federal Court.
[10]
The Chief
Justice of the Federal Court requested the deputy judges, each of whom had held
office as a judge of a superior court in Canada, to act as a judge of the
Federal Court, pursuant to s. 10(1.1) of the Federal Courts Act and the
corresponding order in council, P.C. 2003-1779, dated November 6, 2003.
[11]
I will now turn to the first of the two principal questions to be
considered.
Does the mandatory age of
retirement of 75 years in s. 99(2) of the Constitution Act, 1867 apply
to deputy judges of the Federal Court?
[12]
The judicature provisions are found in ss. 96 through 101 under Part VII
of the Constitution Act, 1867 entitled “Judicature”. These sections delineate the jurisdiction
of Parliament in relation to the judicature of Canada. The legislative
authority of the provincial legislatures is set out in ss. 92(14) and 129. The legislative authority over the
establishment, maintenance and organization of provincial courts, superior or
otherwise, was given to the provincial legislatures by ss. 92(14) of the Constitution
Act, 1867. Section 129 of the Constitution Act, 1867 continued all
courts in existence in the provinces subject only to their being abolished by
the authorized legislative authority.
[13]
Four of the six
judicature provisions, ss. 96, 99, 100 and 101, are of particular interest to
this proceeding.
[14]
Section 96 assigns
the power to appoint “Judges of the Superior, District and County Courts in
each Province” (emphasis added) to the Governor General. It is common
ground that this provision, as well as ss. 97 and 98, does not apply to the
Federal Court or any other court established pursuant to s. 101.
[15]
Section 99(1) governs
the removal from office of judges of superior courts and s. 99(2) states
that a judge shall cease to hold office upon attaining the age of 75 years.
[16]
Unlike s. 96 which
makes reference to “the Judges of the Superior, District, and County Courts in
each Province”, the wording of ss. 99(1) and (2) is limited to “the Judges of
the Superior Courts” and “a judge of a Superior Court” respectively. Each of ss.
96 through 98 refers to one or more of the provincial courts in existence at
the time of Confederation.
[17]
Section 100 provides
that the compensation of judges of the “Superior, District, and County Courts…and
of the Admiralty Courts” shall be fixed and provided for by Parliament. Its
application is not explicitly limited by the words “in each Province”.
[18]
For the first thirty
years of the existence of s. 101 courts, the salary of their judges was fixed
in legislation separate and distinct from that setting the salary of judges of
the provincial superior courts.
From 1906, Parliament set the salary of all superior court judges under “An
Act respecting Judges of Dominion and Provincial Courts”, commonly referred
to as the Judges Act.
This is an indication, it seems to me, that Parliament was exercising its
obligation to determine the salaries of “dominion” judges under s. 101 and
“provincial” judges under s. 100 and eventually chose to do so in the same
legislative enactment.
[19]
The exceptional reference to Admiralty Courts in s. 100 reflects
that, in 1867, the colonial governments, and subsequently Parliament,
compensated the judges of the imperially constituted and staffed vice-admiralty
courts.
[20]
I therefore disagree with the applicant’s assertion that s. 100
squarely applies to s. 101 courts. His reliance on the words “Admiralty
Courts” is virtually a concession that otherwise the Exchequer Court would not
have fallen within the application of s. 100. The admiralty courts of 1867 were
neither federal nor provincial courts and in any event they were abolished in
1891 by the coming into force of s. 17 of the imperial Colonial Courts of
Admiralty Act, 1890.
[21]
Finally, s. 101, a
judicature provision distinct from the others, gives the Parliament of Canada,
notwithstanding anything in the Constitution Act, 1867, the power to
establish a general court of appeal for Canada and any additional courts for
the better administration of the laws of Canada.
[22]
The essence of the
applicant’s argument concerning the judicature provisions is that the absence
of the qualifying words “in each province” renders s. 99 applicable to all
“superior courts”, including any established pursuant to s. 101. I disagree.
[23]
It is now a clear
rule of statutory interpretation that “…the words of an Act are to be read in
their entire context, in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act and the intention of Parliament”:
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2 at paragraph 21.
[24]
I accept the
applicant’s submission that the Constitution is “… a living tree capable of
growth and expansion within its natural limits” and should be interpreted
accordingly: Edwards v. Canada (Attorney General), [1930] A.C.
124 at page 136.
[25]
The living tree
doctrine has “its natural limits”. This was noted by the Supreme Court of
Canada in Reference re Provincial Electoral Boundaries (Sask.),
[1991] 2 S.C.R. 158 at paragraph 42:
The doctrine of the constitution as a living tree mandates
that narrow technical approaches are to be eschewed […]. It also suggests that
the past plays a critical but non-exclusive role in determining the content of
the rights and freedoms granted by the Charter. The tree is rooted in past and
present institutions, but must be capable of growth to meet the future.
[26]
Whether the Federal Court is a superior court within the meaning
of s. 99(2) is not a determination to be made in a vacuum. While the
Constitution remains flexible and is capable of growth, it is rooted in the
past and in the framer’s intent. I now turn to the historical background of
the judicature provisions.
[27]
In 1867, the only
courts in Canada referred to as superior courts were the provincial superior
courts.
Because of their historic links to the high courts in England, each provincial
superior court was viewed as a senior court within its jurisdiction. Sections 96 to 100, in the words of the
respondent’s memorandum, “articulate a number of specific rules in respect of
certain courts of original jurisdiction that were the successors of the
original king’s justice of the central courts of England that were in existence
at the time of confederation”.
[28]
Indeed, I expect that the words “superior courts”, in the
contemporary legal parlance of Canada’s early history, referred exclusively to
the provincial superior courts, at least until 1946 when Parliament included
the Supreme Court of Canada and the Exchequer Court in the legislative
definition of superior courts.
While I do not decide the issue on this point, the expectation I have
expressed is based on my review of the extensive documentation made available
to me.
[29]
When ss. 96 to 100 are read in the historical context of 1867,
keeping in mind the legislative intent of the framers, there is a strong
indication that they were not intended to apply to any court constituted by
Parliament in the exercise of its jurisdiction pursuant to s. 101.
[30]
This interpretation is further supported by: (a) the language of
“notwithstanding” used in s. 101 of the Constitution Act, 1867; (b) the
presumption against redundancy in legislative interpretation; and (c) the
parliamentary debates introducing a mandatory age of retirement in 1927 for
judges of s. 101 courts and in 1960 for provincial superior courts. I will also
review (d) the status and jurisdiction of the Exchequer Court.
a) “Notwithstanding anything in this Act”: s. 101 of the
Constitution Act, 1867
[31]
The words “notwithstanding anything in this Act” are clear and
unambiguous and are not limited by reference to other sections of the Constitution
Act, 1867. Thus, when Parliament creates additional courts for the better
administration of the laws of Canada, it is not constrained by any section of
the Constitution Act, 1867, including ss. 92(14), 96 to 100 and 129.
The framers intended to give Parliament the power to create a general court of
appeal and additional courts as long as the purpose of the additional courts
was “the better administration of the laws of Canada”.
[32]
This conclusion is consistent with the broad interpretation given
to s. 101 by the Judicial Committee of the Privy Council in Ontario
(Attorney General) v. Canada (Attorney General), [1947]
A.C. 127 at paragraph 19. The Privy Council concluded that Parliament
had the authority to establish a final court of appellate review for Canada
despite ss. 92(14) and 129 of the Constitution Act, 1867:
... s. 101 confers a legislative power on the Dominion
Parliament which by its terms overrides any power conferred by s. 92 on the
provinces or preserved by s. 129. "Notwithstanding anything in this
Act" are words in s. 101 which cannot be ignored. They vest in the
Dominion a plenary authority to legislate in regard to appellate jurisdiction,
which is qualified only by that which lies outside the Act, namely, the
sovereign power of the Imperial Parliament. (Emphasis added)
[33]
Canadian courts have also given s. 101 a broad interpretation.
[34]
The
words “notwithstanding anything in this Act” were intended to give Parliament
plenary legislative authority in relation to the establishment, maintenance and
organization of federal courts. This broad power is limited by the words “for
the better administration of the laws of Canada” and the principles of judicial
independence but not by s. 99.
b) The
presumption against legislative redundancy
[35]
The presumption
against legislative redundancy also supports the view that s. 101 courts are
not “superior courts” within the meaning of s. 99.
[36]
Section 99 of the Constitution
Act, 1867, and no other legislation, provides for the removal and the
mandatory retirement of provincial superior court judges. A different
situation was created for s. 101 judges. Provisions concerning the removal and
age requirements for judges of the federal courts were enacted by Parliament in
separate legislation.
[37]
As early as 1875, in
the legislation creating the Supreme Court of Canada and the Exchequer Court of
Canada, Parliament provided that the judges of the two new courts “… shall hold
their offices during good behaviour, but the Governor General may remove any
such Judge or Judges upon the address of the Senate and the House of Commons.” This statutory language
concerning the removal of judges is virtually identical to what was then s. 99,
and since 1960, s. 99(1) of the Constitution Act, 1867.
[38]
The 1887 amendments
which established the Exchequer Court as separate from the Supreme Court,
maintained the same provision concerning the removal of its judges. The provision is still in
force today in the Federal Courts Act.
[39]
Provincial judicature
legislation, unlike the Federal Courts Act and its predecessors, has no
provision which mirrors the good behaviour or age requirements in ss. 99(1) and
(2) respectively of the Constitution Act, 1867. The provincial
laws are silent on these issues concerning judges who are members of provincial
superior courts.
[40]
Parliament’s
“re-enactment” in 1875 of the substance of s. 99 of the Constitution Act,
1867 is an early indication that s. 101 courts were not subject to s. 99.
[41]
The legislative
enactments of Parliament are presumed not to be redundant internally or as
amongst other legislative enactments.
The repetition of the provisions governing removal and, after 1960, the retirement of Supreme Court, Exchequer Court
and now Federal Court judges would be unnecessary given the express language of
s. 99 of the Constitution Act, 1867.
[42]
Those
who argue that s. 101 courts are included under s. 99 must explain, it seems to
me, this legislative redundancy. They also have to explain Parliament’s
introduction of a mandatory age of retirement for s. 101 judges without a
constitutional amendment, an issue I will now consider.
c) Parliamentary
debates and statutory history concerning the mandatory age of retirement for
judges of s. 101 courts and provincial superior courts
[43]
The
debates and legislative history surrounding the age of retirement of judges of
the Exchequer Court and the Federal Court of Canada in 1927 and 1970, as well
as the debates during the introduction of mandatory retirement at 75 for
provincial superior courts in 1960, provide further support for the conclusion
that s. 99 does not apply to federal courts established under s. 101 of the Constitution
Act, 1867.
[44]
These
historical debates will be addressed in the following paragraphs in
chronological order, starting with the debates that revolve around the age of
retirement of Exchequer Court judges and concluding with the continuation of
that Court as the Federal Court of Canada.
[45]
In
1867, there was no mandatory age of retirement for provincial superior court
judges. They were appointed for life subject to the good behaviour provision
in s. 99.
[46]
In
1875, upon the creation of the Supreme Court of Canada and the Exchequer Court,
the judges of those s. 101 courts were also appointed for life in accordance
with the provisions in their enabling legislation.
[47]
In
1927, Parliament unilaterally imposed a mandatory retirement age of 75 for the
judges of the then existing s. 101 courts, the Supreme Court and the Exchequer
Court.
The change was made without constitutional amendment; this demonstrates
that the parliamentarians of the day did not consider that s. 99 applied to s.
101 judges.
[48]
During the
parliamentary debate leading to the enactment of a mandatory age of retirement
of 75, the Honourable Ernest Lapointe, then Minister of Justice, acknowledged
that Parliament could impose a mandatory retirement age only for s. 101 judges.
A constitutional amendment would be required to introduce a mandatory age of
retirement for provincial superior court judges who had a right to sit for
life:
I am afraid that we
could not meet the wishes of my honourable friend unless we asked for an
amendment to the British North America Act. We have the right so far as the
Supreme Court and the Exchequer Court are concerned because of the provisions
of section 101.
…
The Supreme Court of Canada and the
Exchequer Court of Canada have been created and constituted in virtue of
section 101 of the British North American Act, which especially states that
notwithstanding anything in the act, notwithstanding section 99 or any other
section, parliament had the right, when creating the Supreme court, to
state that the tenure of the judges should be a life one or only until a
certain age. They did not make such an enactment then, but we have the right to
do it now. […] I am afraid we have no jurisdiction to extend it to other courts
than the federal courts …
…
We have no right to deal with judges of
the superior courts to
the extent of restricting their tenure of office, but there is no such
provision applicable to county court judges, who have not been considered as
members of the superior or high courts.
…
… section 99 prevents us from dealing
with the tenure of office of superior court or high court judges.
…
Fortunately we have not the same obstacle
to meet as far as our federal courts are concerned …
(Emphasis added)
Mr. Lapointe’s statements are further
confirmation of Parliament’s view that s. 99 was not applicable to federal
courts. A similar view is expressed some thirty years later.
[49]
In 1960, the
government of the day tabled a proposed address to the United Kingdom
Parliament seeking an amendment of s. 99 of the Constitution Act, 1867
to include a mandatory retirement age of 75 years for judges of the superior, district,
and county courts.
This recognition that a constitutional amendment was required, almost one
century after the tenure of those judges had been secured for life and thirty
years after Parliament, on its own, reduced the mandatory age for judges of the
Supreme Court and Exchequer Court, is further consistent demonstration that s.
99 was viewed as having no application to courts created under s. 101.
[50]
Both the government
and the opposition agreed that Parliament had the jurisdiction to limit the
tenure of s. 101 courts and the provincial district and county courts. One of the principal concerns raised by
the opposition in the debates was that the inclusion of district and county
courts in s. 99(2) would remove Parliament’s power to legislate regarding the
tenure of judges of these courts absent a further constitutional amendment. A similar
concern was raised in the Senate. In the end, the reference to county and
district court judges was deleted from the proposed joint address. This
explains why s. 99(2) of the Constitution Act, 1867 refers only to
judges of superior courts.
[51]
The 1960 debates,
like those in 1927, also support the conclusion that s. 101 courts, at that
time the Exchequer Court and the Supreme Court of Canada, were not intended to
be subject to the tenure provisions in s. 99(1) or (2).
[52]
In 1970, the new Federal Court Act provided that the judges of the Federal
Court of Canada would cease to hold office upon attaining the reduced age of 70
years, five years earlier than the retirement age legislated in 1927. Again, Parliament would
not have done so without a constitutional amendment if it thought that s. 99(2)
applied to that “superior” court.
[53]
While discussing the
proposed reduction of the age of retirement from 75 years to 70 years for
judges of the new Federal Court of Canada, the Right Honourable John Turner, then
Minister of Justice, stated:
This change in the law can be made
without any constitutional amendment since we are not dealing here with judges
who were appointed pursuant to section 96 of the British North American Act.
[54]
This
legislative history is further evidence that s. 99(2) is not applicable to s.
101 courts.
d) The status and
jurisdiction of the Exchequer Court: a court with original and supervisory
jurisdiction
[55]
The applicant submitted in oral argument that the Exchequer Court was
always an inferior court of record and never a superior court. In his view,
the legislative and statutory history concerning the Exchequer Court, found in
the debates of 1927 and 1960, is irrelevant because Parliament would not have
considered it necessary to question whether an inferior court fell within the
meaning of s. 99. I disagree.
[56]
In 1875, Parliament established the Supreme Court of Canada and the
Exchequer Court as courts of record.
The Supreme Court today is still legislatively referred to as a court of
record.
[57]
A court of
record is one “that is required to keep a record of its proceedings, and that
may fine or imprison. Such record imports verity and cannot be collaterally
impeached.”
A court of record may be a superior court or an inferior court.
[58]
Both parties agree that a superior court is one which has supervisory
jurisdiction over lower courts and other inferior tribunals.
[59]
A superior court also has plenary jurisdiction to determine any matter
arising out of its original jurisdiction and is subject only to appellate
review. It is not subject to the writs of other superior courts.
[60]
In Re
MacDonald Estate, [1930] 2 D.L.R. 177 at page 181, Justice Fullerton of
the Manitoba Court of Appeal cited the following definition of a superior
court from 15 Corpus Juris Secundum at page 721:
A superior court is a court of
controlling authority over some other courts and with certain original
jurisdiction of its own. Inferior courts are those which are subordinate to
other courts or which are of a very limited jurisdiction.
[61]
The
fundamental characteristics of a superior court identified in Re MacDonald
were endorsed by the Supreme Court of Canada in Puerto Rico (Commonwealth)
v. Hernandez, [1973] S.C.J. No. 141. After his contextual analysis of the status
of the Federal Court, which “shall continue to be a superior court of record”,
Justice Pigeon stated:
… it appears to me that the
Federal Court is a “superior court” in the sense of a court having supervisory
jurisdiction. This is a meaning often used, as appears from the numerous
authorities reviewed in Re MacDonald, [1930] 2 D.L.R. 177, and it is
significant that such jurisdiction is conferred by the act.
[62]
In Puerto Rico, Justice
Pigeon recognized the statutory nature of both the Federal Court and the
Exchequer Court. He noted that the status of a court as a superior court does
not necessarily alter the jurisdiction of the court. A distinction is drawn in
his reasoning between provincial “superior courts” of inherent jurisdiction and
a federal statutory superior court such as the Exchequer or Federal Court. He
does not conclude that the Exchequer Court was not a superior court but finds
that it was not a superior court “…within the same meaning of that expression
as applied to superior courts of the provinces, that is courts having
jurisdiction over all cases not excluded from their authority…”.
[63]
The
Exchequer Court’s jurisdiction from its first days is consistent with its
characterization as a superior court.
[64]
In 1875, s. 58 of the legislation creating the Exchequer Court gave it
concurrent original jurisdiction in “… any matter which might in England be the subject of a
suit or action in the Court of Exchequer on its revenue side against the
Crown.”
In 1875, the Court of Exchequer in England was a high court.
[65]
According
to s. 59, the Exchequer Court had concurrent jurisdiction over “…all other
suits of a civil nature at common law or equity, in which the Crown in the
interest of the Dominion of Canada is plaintiff or petitioner.” This jurisdiction
was unlimited by geography or quantum and was subject only to appeal to
the Supreme Court of Canada.
[66]
From 1887 through 1890, the Exchequer Court’s jurisdiction was
expanded through amendments to a number of federal acts including, the Patent
Act,
the Copyright Act,
the Trade-mark and Design Act,
the Petition of Right Act,
the Expropriation Act
and the Customs Act.
[67]
In 1890, the imperial Parliament passed legislation enabling
Canada to create its own Colonial Court of Admiralty whose jurisdiction shall:
2(2) … be … as the Admiralty
jurisdiction of the High Court in England … in like manner and to as full an
extent as the High Court in England …
[68]
The imperial legislation also enacted that the Canadian
legislature could:
3(a) declare any court of
unlimited civil jurisdiction, whether original or appellate, in that possession
to be a Colonial Court of Admiralty …
(b) confer upon any inferior
or subordinate court in that possession such partial or limited Admiralty
jurisdiction …
[69]
Shortly
thereafter, pursuant to the imperial legislation, the Canadian parliament
passed the Admiralty Act,
1891 and constituted the Exchequer Court as a Colonial Court of Admiralty.
Section 3 provided:
… the Exchequer Court of Canada is and
shall be, within Canada, a Colonial Court of Admiralty, and as a Court of
Admiralty shall, within Canada, have and exercise all the jurisdiction ,
powers and authorities conferred by the said Act (The Colonial Courts of
Admiralty Act [U.K.] 1890), and by this Act.(Emphasis added)
[70]
The establishment of
the Exchequer Court as a Colonial Court of Admiralty, exercising all of the
powers and jurisdiction of the High Court in England on its admiralty side, is
further support that the Exchequer Court was a superior court with civil
jurisdiction and not an “inferior or subordinate court” as referred to in s.
3(b) of the imperial legislation. Moreover, the Admiralty Act made
provision for the appointment of “local” and “surrogate” judges whose decisions
and orders were subject to appellate review by the judges of the Exchequer
Court.
[71]
Although the Exchequer Court was primarily a trial court, from time to
time it was granted supervisory jurisdiction over federal boards or tribunals. This
jurisdiction was exceptional since as a general rule, supervisory power over
federal boards was exercised by the provincial superior courts.
[72]
However,
from its earliest days, the Exchequer Court exercised supervisory jurisdiction.
As early as 1890, the Exchequer Court had the power to issue a writ of scire
facias in patent related matters.
It also had jurisdiction to entertain applications for mandamus.
[73]
In
1933, the Exchequer Court was given exclusive jurisdiction over prerogative
remedies affecting military personnel serving overseas.
[74]
In 1959, Parliament
gave the Exchequer Court exclusive jurisdiction to grant prerogative writs in
relation to any order or finding of the National Energy Board:
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19.
(1) Except as provided in this Act, every decision or order of the Board is
final and conclusive.
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19. (1) Sauf ce que prévoit la présente
loi, chaque décision ou ordonnance de l’Office est définitive et péremptoire.
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(2)
The Exchequer Court of Canada has exclusive original jurisdiction to hear and
determine every application for a writ of certiorari, prohibition or mandamus
or for an injunction in relation to any decision or order of the Board or any
proceedings before the Board.
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(2) La Cour de l’Échiquier du Canada a
une exclusive juridiction de première instance pour entendre et décider toute
requête en vue d’un bref de certiorari, de prohibition ou de mandamus
ou en vue d’un injonction concernant toute décision ou ordonnance de l’Office
ou toutes procédures devant celui-ci.
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(3)
An decision or order of the Board is not subject to review or to be
restrained, removed or set aside by certiorari, prohibition, mandamus
or injunction or any other process or proceeding in the Exchequer Court on
the ground
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(3) Une décision ou ordonnance de
l’Office n’est soumise à aucune revision ni n’est susceptible d’être
empêchée, abolie ou écartée par certiorari, prohibition, mandamus
ou injonction ou quelque autre pièce légale ou procédure devant la Cour de
l’Échiquier pour le motif
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(a)
that a question of law or fact was erroneously decided by the Board; or
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(a) que l’Office a décidé erronément
une question de droit ou de fait; ou
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(b)
that the Board had no jurisdiction to entertain the proceedings in which the
decision or order was made or to make the decision or order.
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(b) que l’Office n’était pas compétent
pour accueillir les procédures au cours desquelles la décision ou ordonnance
a été établie ou pour rendre la décision ou l’ordonnance.
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[75]
Subsequent
legislation granted the Exchequer Court exclusive, if limited, supervisory
jurisdiction over other federal boards or tribunals.
[76]
From early in its history, the Exchequer Court also exercised a limited appellate
jurisdiction.
[77]
Another
important indicator is that the decisions of the Exchequer Court of Canada were final. If the Court
exceeded its jurisdiction, the only recourse available to a party was to seek
appellate review. This is one of the hallmarks of a superior court.
[78]
By
1907, at least two decisions of senior courts concluded that the Exchequer
Court was not subject to the supervisory jurisdiction of the provincial
superior courts and, by implication at least, was not an inferior tribunal.
[79]
The
Exchequer Court also had the jurisdiction to punish contempt committed not in the face of the
court, a power reserved to superior courts.
[80]
The conclusion that the Exchequer Court was, in fact, a superior court, is
supported by its inclusion
in the definition of “superior
court” in the 1946 Judges Act and later in the Interpretation Act. While this is not
conclusive, it indicates that Parliament intended to establish a superior court
in the federal domain when it created the Exchequer Court.
[81]
The applicant had a final argument in the event he failed to persuade me
that the Federal Court of Canada, created in 1971, came within the ambit of the
superior courts envisaged in s. 99(2).
[82]
His submission is based on the U.K. Canada Act 1982 which re-enacted all of
Canada’s previous constitutional provisions, including s. 99(2). This occurred
some eleven years after the creation of the Federal Court of Canada as a s. 101
superior court of record.
[83]
As I understand the applicant’s argument, the legislators in 1982 would
have known the Federal Court was a superior court. Also, in his view, the
words “Superior Court” in s. 99(2) encompassed all Canadian superior courts. Because
the legislators re-enacted s. 99(2) without an amendment excluding the Federal
Court from its application, they must have intended to include that Court
within the meaning of a superior court in s. 99(2). The applicant relies on
the living tree doctrine and the many constitutional decisions supporting that
rule of statutory interpretation.
[84]
The applicant presented no legislative history from Canada or the United
Kingdom to support his thesis.
[85]
Quite simply, the interpretation he brings to the Canada Act 1982
is beyond “the natural limits” of the living tree doctrine and must be
rejected. As noted by the Supreme Court of Canada in R. v. Blais, 2003
SCC 44 at paragraph 40, “…this Court is not free to invent new obligations
foreign to the original purpose of the provision at issue. The analysis must
be anchored in the historical context of the provision”.
[86]
On the basis of the
foregoing analysis, I have drawn the following conclusions.
[87]
The Exchequer Court
was a superior court of record throughout its history. I base this conclusion
on its historical antecedents, its jurisdiction and on the jurisprudence. It
had the essential characteristics of a superior court but was one which was
separate and distinct from the provincial superior courts. In 1965, in an obiter
comment, the Supreme Court of Canada expressed the same view: “The Exchequer
Court is a superior court of record…”
The applicant’s assertion that the Exchequer Court was an inferior court of
record is wrong.
[88]
The applicant’s
argument that the legislative history of 1927, 1960 and 1970 is irrelevant must
also fail. Parliamentarians understood the Exchequer Court to be a superior
court, created under s. 101 of the Constitution Act, 1867 and not
affected by s. 99. It was their view that the mandatory retirement age for
judges of s. 101 courts, and in particular the Exchequer Court, could be
imposed and subsequently changed without regard to s. 99 and without the
necessity of a constitutional amendment. This legislative history cannot be
ignored, as the applicant suggests, on the grounds that the Exchequer Court was
an inferior court. Again, the applicant’s position is wrong.
[89]
Indeed, the
legislative history is persuasive. I find that parliamentarians were correct in
stating that s. 99 had no application to courts established under s. 101 and,
for the purposes of this case, no application to the Exchequer Court. Their
statements and their legislative enactments on the basis that s. 101 courts
were not subject to s. 99 were justified.
[90]
In 1970, Parliament
enacted legislation to continue the Exchequer Court as the Federal Court of
Canada. Section 3 of the legislation stated that the Federal Court of Canada “…
shall continue to be a superior court of record …”. The effect of this
provision, in my view, was to continue the superior court status of the
Exchequer Court as the Federal Court of Canada. In 2003, similar legislative
language was used continuing the status of the Trial Division of the Federal
Court of Canada as the Federal Court.
[91]
Accordingly, my
conclusion that the Exchequer Court was not governed by s. 99 of the Constitution
Act, 1867 is equally applicable to the Federal Court of Canada and to the
Federal Court. I answer the first of the two principal questions raised in this
motion as follows: the Federal Court is not a superior court within the meaning
of s. 99(2) of the Constitution Act, 1867.
[92]
My conclusion, of
course, is in conflict with the one drawn by Deputy Judge Campbell Grant in Addy
v. Canada, [1985] F.C.J. No. 159, where he concluded that the tenure
of judges of the Federal Court of Canada was protected by s. 99:
Subsection 99(1) which provides for the
tenure of judges of the superior courts is general. It applies generically to
all superior court judges no matter whether the judge has been appointed a
superior court judge of a province or to a superior court created under s. 101.
He also held
that a mandatory age of retirement of 70 for judges of the Federal Court of
Canada offended s. 15 of the Canadian Charter of Rights and Freedoms.
The motion before me did not lend itself to the consideration of this Charter
issue.
[93]
The decision in Addy
does not explain how Parliament could have enacted mandatory age limits for the
Supreme Court and Exchequer Court in 1927, with no constitutional amendment, if
s. 99 were applicable to those courts or their judges.
[94]
In addition, the
decision in Addy discloses no information that Deputy Judge Grant was
made aware of the legislative debates in 1927, 1960 and 1970 concerning
s. 99. He does not explain his conclusion that s. 99(1) applied to s. 101
courts in the context of the contrary view held by successive governments and
parliaments over some five decades. Nor is it clear that he addressed the
legislative redundancy between s. 9 of the Exchequer Court Act or s. 8
of the Federal Court Act which repeated for the judges of those courts
substantially the same language as in s. 99(1).
[95]
Also, Deputy Judge
Grant issued his reasons prior to the decision in R. v. Valente,
[1985] 2 S.C.R. 673, where Justice Le Dain distinguished between judges of the
superior courts, county court judges and judges of the federally established
courts concerning judicial independence and security of tenure:
There are, of course, a
variety of ways in which the essentials of security of tenure may be provided
by constitutional or legislative provision. As I have indicated,
superior court judges in Canada enjoy what is generally regarded as the highest
degree of security of tenure in the constitutional guarantee of s. 99 of the Constitution
Act, 1867 that they shall hold office during good behaviour until the age
of seventy-five, subject to removal by the Governor General on address of the
Senate and House of Commons. The judges of this Court, the Federal Court of Canada
and the Tax Court of Canada also enjoy, under their respective governing
statutes, a tenure during good behaviour until a specified age of
retirement, subject to removal only on address of the Senate and House of
Commons.
(Emphasis added)
[96]
Deputy Judge Grant’s decision
appears to have been motivated, in part, by his concern for the judicial
independence of s. 101 judges. That concern, whatever its justification in
1985, has today, in the words of the respondent’s memorandum:
… been substantially alleviated by the
expansive articulation of the scope of constitutional protection to all
courts in Provincial Courts Judges (No. 1) and subsequent cases
such as Ell v. Alberta
…
From the viewpoint of constitutional
protections for judicial independence, it is no longer necessary to advocate an
interpretation that would stretch the scope of ss. 96 to 100 beyond its natural
boundaries.
(Footnotes omitted.)
I
agree with the respondent’s submissions.
[97]
In 1985, the
jurisprudence on the independence of the judiciary and the subsequent extension
of those guarantees to courts, other than s. 96 courts was in its infancy. Given
the evolution of the law concerning the guarantees of judicial independence, it is no longer necessary
to look to ss. 96 to 100 as the sole source for ensuring the independence of
courts that would otherwise not fall within the purview of ss. 96 and 100 of
the Constitution Act, 1867. The courts have held that the
preamble of the Constitution Act, 1867 protects the judicial
independence of all courts be they superior or inferior.
[98]
In short, I am
respectfully of the view that Deputy Judge Grant was in error when he concluded
that the application of s. 99 extended to the Federal Court of Canada. His
conclusion is simply inconsistent with the persuasive legislative history,
including the introduction of mandatory age limits without recourse to
constitutional amendment.
[99]
I
will now turn to the second principal question raised in this motion.
Does s. 8(2) of the Federal Courts Act preclude a person over
75 years of age from acting as a deputy judge of the Federal Court?
[100] Section
8(2) of the Federal Courts Act provides that:
[101] The
applicant argues that s. 8(2) is applicable to deputy judges. In his view, a
deputy judge is a judge of the Federal Court within the meaning of s. 8(2) and
cannot act as a deputy judge beyond 75 years of age. I disagree: a person who
acts as a deputy judge does not “hold office” as a judge of the Federal Court.
[102] Indeed,
even if I were wrong in my earlier analysis of Addy and in my conclusion
that the Federal Court is not a superior court within the meaning of s. 99(2),
that constitutional provision, in my view, would not prevent a Chief Justice
from asking a former judge, over 75, to act as a deputy judge. Simply put,
deputy judges do not hold office as judges of the Federal Court and cannot,
therefore, cease to hold an office to which they have not been appointed.
[103] This
conclusion is based on: (a) the legislative history of deputy judges in the
Exchequer and Federal Courts, (b) the eligibility requirement for deputy
judges; and (c) the statutory interpretation of ss. 8 and 10 of the Federal
Courts Act.
[104] The
power to appoint a judge for a temporary purpose can be traced as far back as
1887 when the Exchequer Court was composed of one judge. Parliament provided
for the appointment of another person on a temporary basis where the sole judge
of the Exchequer Court was unable to act because of sickness, absence from
Canada or having an interest in any case before the court.
[105] In
1920, the office of puisne judge was added to the composition of the
Exchequer Court. This is the first time that the term “deputy judge” was used
to describe the person appointed in the case of the sickness, absence from
Canada, inability to act of a judge of the Exchequer Court or, at the request
of its President, for any other purpose deemed sufficient.
[106] The
eligibility requirement to be a judge or a deputy judge of the Exchequer Court
was the same. The person had to be a judge of a superior or county court of
any of the provinces of Canada or a barrister or advocate of at least ten years
standing at the bar of any of the provinces.
[107] In
1968, members of the bar could no longer be asked to act as deputy judges. A
deputy judge of the Exchequer Court was required to be a judge of a superior or
county court in Canada or any person who has held office as a judge of a
superior court or county court in Canada.
[108] The
parliamentary debates, as early as 1920 and subsequently in 1967, contemplated
“congestion of business” as a reason to use a deputy judge.
[109] The
current version of s. 10(1.1) of the Federal Courts Act is substantially
the same as the provision adopted when the Federal Court of Canada was created
in 1970. During the clause by clause examination of Bill C-192, the following
words were added to the subsection: “… while so acting has all the powers
of a judge of the Court …”.
[110] Today, none of the provincial superior courts in Canada has the
legislative authority to request persons to act as deputy judges in the manner
envisaged by s. 10(1.1).
[111] The eligibility requirement for a deputy judge of the Federal Court
is set out in s. 10(1.1) of the Federal Courts Act, which is
reproduced here for ease of reference:
|
10.(1.1) Subject to subsection
(3), any judge of a superior, county or district court in Canada, and any
person who has held office as a judge of a superior, county or district court
in Canada, may, at the request of the Chief Justice of the Federal Court made
with the approval of the Governor in Council, act as a judge of the Federal
Court, and while so acting has all the powers of a judge of that court and
shall be referred to as a deputy judge of that court.
|
10.(1.1) Sous réserve du paragraphe
(3), le gouverneur en conseil peut autoriser le juge en chef de la Cour
fédérale à demander l’affectation à ce tribunal de juges choisis parmi les
juges, actuels ou anciens, d’une cour supérieure, de comté ou de district.
Les juges ainsi affectés ont qualité de juges suppléants et sont investis des
pouvoirs des juges de la Cour fédérale.
|
[112] The executive plays no role in the chief justice’s decision to
request that a specific eligible person act as a deputy judge. The approval of
the Governor in Council is granted by way of a generic order in council
authorizing the chief justice to seek the assistance of up to 15 deputy
judges. Order in council P.C. 2003-1779 of November 6, 2003, states that the
Governor in Council “…approves that the Chief Justice of the Federal Court make
requests to any judge of a superior, county or district court in Canada and any
person who has held office as such a judge to act as a deputy judge of the
Federal Court …”.
[113] The remuneration of a deputy judge is determined in accordance with
s. 10(4) of the Federal Courts Act. Judicial notice can be taken that
the amount is generally in the range of $400 per diem.
[114]
The
use of deputy judges in the Exchequer Court, although authorized in 1920, did
not occur until 1942 and was sporadic until the creation of the Federal Court
of Canada in 1971.
[115]
Deputy judges have been requested to participate in the work of the
Federal Court for over three decades. Many of these deputy judges acted after
reaching the mandatory age of retirement for judges. According to Quicklaw,
some 20 deputy judges, acting when they were over 75 years of age, participated
in over 1,500 reported decisions of the Federal Court of Canada prior to
December 31, 1999.
No deputy judges acted over the next four years. Since 2004, some seven deputy
judges, acting when they were older than 75, have presided over approximately
450 cases in the Federal Court, most of which were decided between 2005 and
2009. This anecdotal history is informative, yet not determinative of the legal
issues in this motion.
[116] Deputy
judges provide the Chief Justice of the Federal Court with the flexibility to
add judicial resources where circumstances require. Consequently, the recent use
of deputy judges has helped the Court minimize its backlog with some 20% of its
full-time judges engaged in the post September 11, 2001, protracted ministerial
certificate litigation.
[117] The
applicant relies on statutory interpretation to support his position that
deputy judges are Federal Court judges and therefore subject to the mandatory
retirement provisions in s. 8(2) of the Federal Courts Act.
[118] During
the hearing of this motion, the applicant asserted that a superior court judge
who retires at an age younger than 75 nonetheless continues to hold office
until the mandatory age of retirement. In his view, this retired judge
continues to be a member of the superior court from which he resigned. He made
these statements in support of his statutory interpretation of ss. 10(1.1) and
(2).
[119] As
I understand his argument, the applicant maintains that the discretion given to
the Chief Justice of the Federal Court in s. 10(1.1) to ask “any person who has
held office as a judge of a superior court” to act as a deputy judge is limited
by the words in s. 10(2): “No request may be made to a judge of a superior
court…without the consent of the chief justice … of the court of which he or
she is a member”.
[120] From
this premise, the applicant draws two conclusions.
[121] First,
in his view, the judge who opts for early retirement continues to be a member
of the court from which he has retired.
[122] This
position is, in my respectful view, not sustainable. The judge who chooses to
retire, according to the provisions of the Judges Act or for whatever
other reason, creates a vacancy on the court in question and is replaced in due
course by the Governor in Council in a manner consistent with the Court’s
judicial complement. Simply put, a superior court judge who resigns or retires
no longer holds office.
[123] Second,
he argues that since superior
court judges cease to hold office at 75, and are therefore no longer members of
a superior court, the wording of s. 10(2) would preclude judges over 75 from
being asked to act as deputy judges.
[124] This
second argument also fails to withstand scrutiny. The applicant ignores the
plain wording of s. 10(1.1) which permits the Chief Justice, subject only to s.
10(3), to request the assistance of “any judge of a superior … court in Canada
and any person who has held office as a judge of a superior … court…”. Persons over 75 who have held office as judges of superior courts are not excluded by the language
used in s. 10(1.1).
[125] I
therefore reject the applicant’s interpretation of s. 10(1.1) and conclude that
it envisages two categories of deputy judges: current and former judges. This
is set out in the respondent’s written submissions:
… The first
group comprises any judge of the superior, district or county courts in Canada.
… Section 99 of the Constitution Act, 1867 clearly applies to provincial
superior courts. Therefore, proposed deputy judges who are active members of a
provincial superior court will necessarily be under 75.
The second group comprises “any person who has held office as a judge
of a superior, county or district court”. Parliament is presumed to have
intended to mean something different in using the words “has held office”. If
the intent was only to include the group of sitting superior court judges these
additional words would not have been included. The plain meaning of the section
is to provide the deputy judges also may be requested from among retired former
members of provincial superior courts. Those who have held office, but are
retired, will not necessarily be under 75 years of age.
(Footnotes
omitted.)
[126] It is the second category of deputy judge, one who “has held office”
or has retired as a judge of any superior court in Canada (including the
Federal Court) and, in particular, one in that category who is over 75 years of
age that is of concern in this proceeding.
[127] The
respondent’s submissions on the distinction between the status of a deputy
judge and a judge of the Federal Court are stated succinctly and are ones which
I endorse:
That status of
deputy judges is distinct from that of judges of the court is evident not only
from the history of s. 10, but also from the terms of the regime which
presently governs their assignment. Deputy judges do not hold office but act as
judges of the court, having the powers of a judge of the court while acting.
They are not included in the composition of the court. Rather they are only
deputy judges for the duration of their assignment. This is recognized in their
exclusion from the definition of “judge” in the Judges Act.
Had Parliament
intended deputy judges have the same status as “judges” of the Federal Court,
the FCA and the Judges Act could have been drafted to expressly include
them as judges of the court and to refer to them as such in s. 10(1.1). The
fact that Parliament chose different language is a clear signal that this is
not the case and that s. 8(2) does not apply to deputy judges.
There is no
need and therefore no requirement that deputy judges reside in the National
Capital Region, unlike judges of the court who are required to do so. This
accords with the purpose of s. 10 because it furthers the efficient
administration of the court to have deputy judges readily available in
localities where the court sits. The salary payable to deputy judges is
prescribed within s. 10 itself and is not governed by the Judges Act as
is the case for all federally-appointed judges. However, the salary is set at
rates fixed by the Judges Act with appropriate and necessary
qualifications.
(Footnotes omitted)
[128] In the applicant’s submission, the inclusion of s. 10(1.1) in the
section of the Federal Courts Act entitled “The Judges” leads to the
conclusion that Deputy Judges are judges of the Federal Court. I disagree.
[129] There
is no legislative definition of “deputy judge”. The definitions of “judge” in
the former Federal Court Act and in the Judges Act do not include
the term “deputy judge”. The Judges Act defines a “judge” as including:
“a chief justice, a senior associate chief justice, associate chief justice,
supernumerary judge, senior judge and regional senior judge.” In both statutes, the
definition of “judge” is inclusive.
[130] The
use of the term “including” in a definition or enumeration may have more than
one purpose. It may be used to add “specifics that would not ordinarily be
included in the general term” thereby ensuring that items which may not be
obviously included in the definition are identified as belonging. It may be for this reason
that the definition of “judge” specifically identifies offices other than that
of a puisne judge.
[131] Contrary
to the applicant’s submission, the sections concerning “The Judges” support the
view that a “deputy judge” is not a judge for the purpose of the Judges Act or
within the meaning of the Federal Courts Act.
[132] Section
5.1 of the Federal Courts Act defines “the constitution” or composition
of the Federal Court.
[133] The
judicial complement of the Federal Court consists of its Chief Justice and 32
other judges. There exists an equal number of additional offices for
supernumerary judges. In addition, every judge of the Federal Court of Appeal
is an ex officio judge of the Federal Court.
[134] Section
5.1 makes no mention of deputy judges in the composition of the Court. The provision
defines the Court’s complement as consisting of 33 judges, including the Chief
Justice. The latter has no power to increase the number of judges who hold
office. That authority resides with Parliament.
[135] Section
10(1.1) does not define a deputy judge as a Federal Court judge. It authorizes
a deputy judge, upon the request of the Chief Justice, to act as a judge of the
Federal Court. The provision further stipulates that a deputy judge, while so
acting, has all the powers of a judge of the Federal Court. It does not create
another office of judge. A deputy judge acts as a judge of the Federal
Court. The deputy judge does not hold the office of a judge of the Federal
Court within the meaning of s. 5.1 or s.8.
[136] Finally,
the applicant raised the assignment power given to the Chief Justice in s.
15(2) of the Federal Courts Act.
If, he argued, deputy judges are not judges then s. 15(2) does not apply to
them.
[137] Unlike
the full-time and supernumerary judges of the Federal Court, deputy judges no
longer hold office and are no longer under the scheduling authority of the
Chief Justice. The deputy judge must choose to accept the Chief Justice’s
request to act. The deputy judge is asked to accept assignments from the Chief
Justice and may refuse to do so. Unlike the situation with judges who hold
office, this is a consensual process.
[138] When
a deputy judge chooses to act, the Chief Justice is required, as in other
cases, to make: “the arrangements that may be necessary or proper for the
holding of courts…” envisaged in s. 15(2). Section 15 does not support the
applicant’s position.
[139] Based
on a common sense and contextual reading of ss. 5.1, 8 and 10 of the Federal
Courts Act, I conclude that deputy judges do not hold the “office” of judge
of the Federal Court. They are not appointed by the Governor in Council by
letters patent under the Great Seal pursuant to s. 5.2. They are not subject
to the residency requirement of a judge of the Federal Court under s. 7. Their
salary is governed by s. 10(4) and not by the Judges Act, except by way
of reference in that subsection. They are asked to act from time to time by
the Chief Justice.
[140] In
summary, the power to ask a retired superior court judge to act as a deputy
judge is not constrained by the mandatory retirement age set out in s. 8(2) or
by the wording of s. 10(1.1) of the Federal Courts Act. The Chief
Justice of the Federal Court may request an eligible person over 75 years of
age to act as a deputy judge.
[141] The
Honourable Mark MacGuigan, then a parliamentarian and later a judge of the
Federal Court of Canada – Appeal Division, understood that a person beyond 75
years of age could be requested to a deputy judge:
The device of
allowing the better judges to come back beyond the mandatory retirement age has
been a successful one in the United States. Some judges in their eighties are
performing well. It seems to me that this is the kind of judgment which a Chief
Justice could make if there is sufficient demand. … Just because a man feels he
no longer wants to sit everyday and retires is no reason why, if his faculties
are still there and he is highly regarded by those administering the Court, he
could not be called back occasionally to do additional jobs.
[142] The
decision in Addy is the only one brought to the Court’s attention with a
substantive reference to the age of Federal Court deputy judges. Deputy Judge
Grant, in his obiter comments, was of the view that a deputy judge was
not subject to a statutory retirement age:
There
is no limit in the Act as to the age of such a deputy judge. This fact is cited
as a discrimination against the judges of all the courts. However, a person
called to act as a deputy judge has no right to act as a judge until invited to
do so by the Chief Justice of the Federal Court. He may accept such invitation
or decline it. If he chooses to preside over the case, he ceases to be a deputy
judge when he completes that assignment. He therefore has no tenure of office
and his participation in trials in the Federal Court is not comparable to that
of Federal Court judges nor relevant to the issues herein.
[143] The
scheme set out in s. 10 is internally consistent and unambiguous. The Chief
Justice may request the temporary assistance of sitting superior court judges,
with the approval of their chief justice; or, superior court judges who have
ceased to hold office. Judges who have “ceased to hold office” include those
who have reached the mandatory retirement age of 75. This is consonant with
the comments made by the Honourable Mark MacGuigan and Deputy Judge Campbell
Grant and with the practice of the Federal Court of Canada over the past 30
years.
[144]
In reaching this conclusion, I have taken into account two issues which
were not canvassed by the Court or the parties during the hearing of the
motion.
[145]
Neither party made submissions concerning ss. 5, 8 and 9 of the Exchequer
Court Act, as those provisions read in the 1927 and 1952 revised statutes
of Canada.
[146]
It was in 1927 that a mandatory retirement age of 75 years was first set
out in s. 9 of the Exchequer Court Act. For the reasons I have mentioned
above, a deputy judge of that earlier period, like today’s deputy judge, did
not hold office as a puisne judge of the Court. Consequently, s.9 of the
Exchequer Court Act, like s. 8(2) of the current Federal Courts Act,
did not affect deputy judges.
[147]
Moreover, the retirement age inserted into s. 9 was a limitation and not
a qualification. That limitation could not be one of the “qualifications for
appointment hereinbefore mentioned” referred to in ss. 5 and 8. I conclude
that s. 9 did not prohibit a person older than 75 from acting as a deputy judge
of the Exchequer Court.
[148]
In any event, s. 8 was repealed and replaced in 1968. The amended s.8
used words similar to those found in s. 10(1) of the Federal Court Act
and s. 10(1.1) of the Federal Courts Act to describe the eligibility
requirements of deputy judges.
[149]
Today, those requirements are found in s. 10(1.1) of the Federal
Courts Act which makes no reference to s. 5.3 concerning the qualifications
for a Federal Court judge or to s. 8(2) concerning the cessation of office.
[150]
A second issue that neither party raised is whether the English and
French versions of ss. 8(2) and 10(1.1) may have different meanings as the
result of amendments made to them.
[151]
The amendments to the French version of s. 8(2), if they do give rise to
a meaning different from the plain meaning of the English versions, were made
as part of the 1985 statute revision process
and cannot be taken to change the meaning or application of the law. In the event of an
inconsistency between a consolidated statute and the original Act, the original
statute prevails to the extent of the inconsistency.
[152]
Thus, the current French version of s. 8(2) which uses the language of
“l’âge limite pour l’exercice de la charge de juge” is to be interpreted in a
manner consistent with the former French version of that provision which
reflects the intent of Parliament. The pre-1985 French version of s. 8(2)
provided: “[u]n juge de la Cour cesse d’occuper son poste…” mirroring the
current English version which has remained substantially unchanged for over 70
years.
[153]
This interpretation is consonant with the intent of Parliament as made
evident in s.7 of the Act to amend the Judges Act, the Federal Court Act and
the Tax Court of Canada Act, S.C. 1987, c.21 which used the pre-1985
wording of s. 8(2).
That wording is also substantially similar to the French version of s. 99(2) of
the Constitution Act, 1867.
[154]
In summary, the English version of s. 8(2), which mirrors s. 99(2), has
remained substantially unchanged since its inception in 1927. Prior to the
1985 revision, there was no material change to the French version, which also
mirrored s. 99(2). Nothing, in my review of the legislative history of s.
8(2), has convinced me that the 1985 revision of the French version of s. 8(2)
by a three person Statute Revision Commission was intended to alter the state
of the law as it was expressed by Parliament for over 50 years.
[155]
Indeed, the unchanging nature of the English version over such an
extended period of time, and its similarity to s. 99(2), would, in any event,
lead me to conclude that the English version of the provision more clearly
expresses the intent of Parliament.
[156]
I would apply the same rationale and principles of statutory
interpretation to the language differences in s. 10(1.1).
[157]
The English version of s. 10(1.1) has remained substantially the same
since 1970.
The reference to “has held office” has been constant throughout and parallels
the language in s. 99(2).
[158]
From 1968 until 1985, the French language version referred to “toute
personne qui a occupé un poste de juge”. In 1985, the phrase is shortened to:
“juges, actuels ou anciens” which I find conveys the same idea in a more
concise manner. I find no material change in the meaning of the 1970 French
version of s. 10(1) and the 1985 version of that same provision.
[159]
In conclusion, given the substantially unchanged English versions of ss.
8(2) and 10(1.1) over time, the wording of s. 99(2) of the Constitution Act,
1867, and the limited authority of the Statute Revision Commission, I
attribute no intent, on the part of Parliament, to change the meaning of the
law when the wording of the French language versions of ss. 8(2) and 10(1.1)
was amended.
[160] I
therefore answer the second of the two principal questions raised in this
motion as follows: s. 8(2) of the Federal Courts Act does not preclude
a person over 75 years of age from acting as a deputy judge of the Federal
Court. This conclusion is consistent with the principles of statutory
interpretation, with the limited legislative history and the obiter
statement of Deputy Judge Grant in Addy. There is no conflict between
ss. 8(2) and 10(1.1).
[161] Parliament
amended s. 8 of the Federal Court Act in 1987 in response to the Charter
issues raised in the Addy decision. Parliamentarians would have been
aware of the view expressed in Deputy Judge Campbell Grant’s decision that
there was no age limit for the deputy judges. Despite this, Parliament did not
see fit to impose an age limit on deputy judges.
[162] The
applicant also raised issues of constitutionalism, federalism and rule of law
which he limited, in oral argument, to a separation of powers issue. In making
his oral submissions on the separation of powers doctrine the applicant did not
challenge the independence, institutional or individual, of deputy judges.
[163] In
brief, he asserted that the appointment of a deputy judge over the age of 75 by
the Chief Justice offends the constitutional requirement that judges be
appointed solely by the executive branch of governance and is thus contrary to
the separation of powers doctrine.
[164] However,
he maintained that this issue does not arise where the judge has not yet
attained 75 years of age since, according to the applicant, a judge under 75
does not cease to hold office even if that judge has resigned or retired.
[165] As
noted above, I reject the applicant’s assertion that a superior court judge
does not cease to hold office in any circumstances before reaching 75, apart
from removal in accordance with s. 99(1) of the Constitution Act, 1867.
Put simply, judges who retire or resign cease to hold office.
[166] Nor
do I find that s. 10(1.1) offends the doctrine of the separation of powers. The
Chief Justice is not “appointing” a judge to the Federal Court. In his
capacity as the administrative judge, whose primary interest is the proper
administration of justice and of the Court, the Chief Justice is asking a
current or former judge to “act as a judge of the Federal Court” pursuant to a
general authorization by the executive branch of governance. These experienced
jurists may choose to assist the Court or may decline the request.
[167] Moreover,
the mechanism which permits the Chief Justice of the Federal Court to ask
individuals to act as deputy judges is constrained by two requirements. First,
the eligibility of individuals is limited by s. 10(1.1) of the Federal
Courts Act to a Canadian superior, county or district court judge or a
person who has held such office. Second, the request may only be made with the
approval of the Governor in Council which is found in the blanket authorization
set out in order in council P.C. 2003-1779.
[168] I
therefore reject the applicant’s assertion that s. 10(1.1) offends the doctrine
of separation of powers.
Miscellaneous
issues
[169] The
applicant also submits that the Governor in Council was under a positive
obligation to seek clarification of the issue raised in this motion pursuant to
s. 53 of the Supreme Court of Canada Act once Parliament responded to
the Addy decision by amending s. 8(2) of the Federal Court Act in
1987.
[170] I
adopt the position taken by the respondent that the use of the word “may” in s.
53 gives the Governor in Council discretion. I find that nothing, in the
circumstances of this matter, obliges the Governor in Council to refer a
question to the Supreme Court of Canada.
[171] The
applicant further submits that ss. 72 to 74 of the Immigration and Refugee
Protection Act preclude a deputy judge from hearing his application if
deputy judges do not hold office as “judges” of the Federal Court.
[172] This
assertion cannot be sustained. Section 10 (1.1) gives a deputy judge all the
powers of a judge of the Federal Court. The determination of matters
enumerated in ss. 72 to 74 of IRPA is one of the powers of a judge of the
Federal Court. To interpret s. 10(1.1) otherwise would result in a legislative
absurdity.
Certification
[173] In this
interlocutory motion, the applicant has challenged the jurisdiction of a deputy
judge over 75 years of age to preside over the hearing of two related
applications for judicial review under the Immigration and Refugee
Protection Act. The applicant challenges the two decisions refusing the
relief he sought for humanitarian and compassionate consideration and for
pre-removal risk assessment.
[174] The Court
and both parties agreed at the outset of the hearing that this interlocutory
judgement should be subject to appellate review. The procedural issue before
me is whether any appeal should be as of right under s. 27 of the Federal
Courts Act or subject to the certification process under s. 74(d) of the
immigration legislation.
[175] In my view,
the certification of a serious question is not necessary. The motion before me
is a “separate, divisible judicial act” with respect to the application for
judicial review: Charkaoui v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 421 at paragraph 48; and Canada (Minister of
Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at paragraphs
60 and following. Either party may appeal this interlocutory judgment pursuant
to s. 27 of the Federal Courts Act without the necessity of a certified
question.
[176] However, as
I indicated during the hearing, if I am wrong on this point and s. 74(d) of the
IRPA is applicable to this judgment, I am prepared to certify a serious
question, substantially in the language suggested by the parties:
a) Does s. 99(2) of the Constitution Act, 1867 apply to deputy
judges of the Federal Court?
b) Are deputy judges, acting pursuant to s. 10(1.1) of the Federal Courts Act, subject to the cessation of
office provision in s. 8(2)?
Costs
[177] The
respondent has not sought costs on this interlocutory motion. As the losing
party, the applicant would normally have no right to costs.
[178] The
applicant was prepared to proceed with the underlying application for judicial
review before a full time or supernumerary judge of the Court. However, the
jurisdictional issue he raised was also invoked by a significant number of
other applicants in immigration matters upon the Court’s disclosure of the
issue. Consequently, it was in the interests of the administration of justice
to have the issue of age concerning deputy judges clarified through
adjudication.
[179] For
this reason, despite the result of the motion, I have chosen to exercise my
discretion under Rule 400(3)(o) of the Federal Courts Rules and award
costs to the applicant in the amount of $6000. If I am wrong in my view that
the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22,
do not apply to this motion, which I have characterized earlier as a “separate,
divisible judicial act”, I would award costs, pursuant to Rule 22, for the same
“special reasons” and in the same amount.
[180] As
I have just suggested, this jurisdictional motion has been in the nature of
public interest litigation. I wish to acknowledge the cooperation of counsel
for both parties in assuring its timely adjudication. The Attorney General of
Canada filed two volumes of informative legislative history concerning the
Federal Court and its predecessor courts. I am grateful to those responsible
for assembling this material on short notice.
ORDER
THIS COURT ORDERS that:
1. The applicant’s motion is dismissed;
2.
In the
event I am wrong in my view that this motion is a “separate , divisible
judicial act” not subject to s. 74(d) of the Immigration and Refugee
Protection Act, the following question, with its two aspects, is certified:
a) Does s. 99(2) of the Constitution Act, 1867 apply to deputy
judges of the Federal Court?
b) Are deputy judges, acting pursuant to s. 10(1.1) of the Federal Courts Act, subject to the cessation of
office provision in s. 8(2)?
3.
The
respondent will pay costs to the applicant in the amount of $6000, in any event
of the cause.
4.
A copy of
this Order and Reasons for Order shall be placed in file IMM-1087-09.
“Allan
Lutfy”
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