Constitutional controversy continues to swirl around the Federal Court of Canada after it was discovered that all but one of the court’s seven deputy judges have been sitting on cases despite being over the age of 75.
At 75 mandatory retirement requirement should force superior court judges to retire.
The revelation caused disarray in the court. In Toronto two weeks ago, at least 11 hearings set to be heard by deputy judges were adjourned.
In Montreal, two of eight cases before deputy judges were in question following adjournment requests.
In three of those cases, counsel had announced intentions to proceed before a deputy judge despite the fact the judge was over age 75.
However, the status of those cases was in question also, as the Attorney General of Canada filed a letter requesting adjournments until a resolution to the jurisdictional question.
Toronto lawyer Rocco Galati set the controversy in motion with a letter in mid-August to Federal Court Chief Justice Allan Lutfy. In the letter, he said Deputy Justice Louis Tannenbaum, who is 77, has no jurisdiction to hear his client Luis Felipa’s case against the Ministry of Citizenship and Immigration.
Galati noted that s. 8(2) of the Federal Courts Act, combined with the constitutional requirement under s. 99(2) of the Constitution Act, prevents a superior court judge from sitting beyond age 75.
He requested the case be adjourned until a different judge, who is “statutorily and constitutionally vested with jurisdiction to preside,” is scheduled to take over.
In a July letter responding to similar questions from a Montreal case, the Federal Court’s chief administrator Raymond Guenette, outlined the court’s stance on the jurisdiction of six of its seven deputy judges, who are over 75 years old.
He said the Federal Court has relied on s. 10 of the Federal Courts Act to appoint deputy judges for over three decades.
He said the Federal Court is a statutory court constituted under s. 101 of the Constitution Act, and the appointment and tenure of its judges and deputy judges is governed by the Federal Courts Act, not by s. 96 and s. 99 of the Constitution Act.
The Federal Courts Act permits anyone serving or previously appointed as a superior court judge to act as a deputy judge of the Federal Court.
In 2008, the court’s deputy judges took on about five per cent of its overall workload - equivalent to the work of two full-time judges, according to the court.
The Justice Department declined a request for comment on the issue.
“Because these issues have arisen in the context of litigation that is currently before the courts, it would be inappropriate to comment,” the department said in a statement.
While preparing the case, Felipa v. Ministry of Citizenship and Immigration, Galati says he felt “disbelief” when he noticed Tannenbaum was over 75 while reading his biography on the court’s web site.
“You have to fully appreciate that, as lawyers, we’re not in the business or habit of asking judges for their ID,” he says. “I assumed that all the judges were under 75. I had no cause to think otherwise prior to this happening.”
The issue “starts, and is restricted to, and ends with the constitutional prohibition under s. 99(2) of the Constitution Act,” says Galati.
“If the Constitution doesn’t apply to judges, I don’t know who it applies to. For me, it’s a constitutional issue. I don’t care about the other issues. It’s not an issue of competence; it’s not an issue of the general philosophical notion of where and when we should set retirement age.
“The point is, the Constitution and Parliament has said it is 75, and unless there’s a Constitutional amendment to that, then it has to be respected like every other clear constitutional provision.”
Barry Strayer, who was appointed a judge of the Federal Court of Appeal and as chief justice of the Court Martial Appeal Court of Canada in 1994, was named a deputy judge of the Federal Court in 2005. He has since retired, but says he heard two or three cases as a deputy judge beyond the age of 75.
Strayer suggests the questions about the legal age of the Federal Court judges are “very debatable,” and turn on “certain assumptions” made by Parliament.
“Lawyers and their clients are well-served by having good, experienced people available to get their cases dealt with, rather than waiting for a long time because there’s a shortage of judges,” says Strayer.
“I think it’s a valid system, and I’m not aware of any problems with it, and nobody for years has ever questioned it. Now we have a spate of these cases in question.”
Lutfy issued an order regarding the Felipa case in response to Galati’s letter. He set Aug. 31 as a deadline for the receipt of Felipa’s notice of motion on the jurisdictional question. He also called for any filing of a notice of constitutional question by Sept. 8.
The next hearing date in the Felipa case was set for Sept. 30, before Tannenbaum.