Appeal court strikes blow to deputy judges

The Federal Court of Appeal has struck a blow to the Federal Court practice of appointing deputy judges with a ruling declaring it to be in violation of the Federal Courts Act.

“It defies common sense to conclude that a judge of the Federal Court on turning 75 years of age ceases to hold office and yet, at the request of the chief justice of the Federal Court, may continue to perform the same judicial duties as a deputy judge,” Federal Court of Appeal justices Karen Sharlow and Eleanor Dawson wrote in the Oct. 3 ruling.

“It is equally illogical to conclude that a judge of the superior court of a province may cease to hold office on attaining age 75 and then assume judicial duties acting as a deputy judge of the Federal Court.”

The appeal court judgment declared that the chief justice of the Federal Court doesn’t have the authority under the act to request that a retired judge of a superior court continue as a deputy judge after reaching the age of 75.

It follows a constitutional challenge led by Toronto immigration lawyer Rocco Galati. He argued that appointing deputy judges violates a mandatory retirement requirement established in s. 8(2) of the Federal Courts Act and s. 99(2) of the Constitution Act when they sit beyond 75.

“I believe the deputy judgment is quite clear,” says Galati, who notes that exactly what will happen on the issue depends on whether the government decides to appeal the ruling.

The principal question in Luis Alberto Felipa v. the Minister of Citizenship and Immigration involved whether or not a former judge of a superior court who’s over the age of 75 could be requested to act as a deputy judge of the Federal Court.

The appeal court found that Parliament didn’t intend that people 75 years of age or older could be asked to act as deputy judges.

Several similar challenges were also filed in Federal Court in 2009, causing multiple adjournments and reassignments in the meantime. Officials, however, are saying little about the impact of the latest ruling on current court cases.

“At this time, there are still 60 days until a response can be filed,” said Paula Creighan, director of communications for the Department of Justice. “Until that time, the matter will be reviewed further and an appropriate course of action determined.”

In the meantime, observers say the ruling, should it stand on a potential appeal, could cast doubt on the validity of previous decisions by Federal Court deputy judges.

Federal Court judges face mandatory retirement at 75 years of age. But in some cases, chief justices of the Federal Court call on them to act as deputy judges. Although they don’t have offices or salaries, they’re paid on a day-to-day basis to help rule on cases within the federal court system.

Currently, there are six deputy judges in the Federal Court, all of whom are over 75 years of age. At the same time, the Tax Court, the Federal Court of Appeal, and the Court Martial Appeal Court are all empowered by statute to use deputy judges and typically do so to some degree.

As of Oct. 4, however, no acting deputy judges were listed by the Federal Court of Appeal, the Tax Court or the Court Martial Appeal Court, according to their web sites.

The Felipa case stems from a letter in mid-August 2009 to former Federal Court chief justice Allan Lutfy by Galati about two proceedings that began in March of that year.

Writing on behalf of Felipa, a foreign national living in Canada, Galati asked to have Justice Louis Tannenbaum, a deputy judge of the Federal Court, removed from a judicial review of two decisions by a pre-removal risk assessment officer.

Following that, the Federal Court’s deputy judges stopped hearing cases.
“The deputy judges still retain their formal status and are still listed on the Federal Court web site,” says Federal Court spokesman Andrew Baumberg.

“However, they are only paid under a per diem basis and receive no formal salary nor attend any hearings.”

Previously, Lutfy, in his earlier ruling on the matter, had determined that since deputy judges didn’t technically hold office, they were excluded from laws on the age of retirement, a decision that the appeal court has now overturned.

The matter caused the adjournment of at least 11 Federal Court hearings in one week that were set to go before deputy judges in August 2009. It also led to the resignation of two deputy judges of the Tax Court in 2009.

“The Federal Court of Appeal has made the decision and we are bound by it,” says Tax Court Associate Chief Justice Eugene Rossiter. “We have not obtained the services of any deputy judges over the age of 75 since the issue first arose and we do not plan to now.”

For its part, the Federal Court says the impact of removing deputy judges from the caseload has been modest.

“Deputy judges provided chief justices with the flexibility to hear urgent cases more swiftly and gave them more flexibility administratively that way, but the impact overall has really been minor since 2009,” says Baumberg.

“The impact overall was not significant or direct and may only translate into a one-month delay or so overall but it isn’t a significant amount,” he adds.

For related content, see "Kerfuffle erupts over age of deputy judges" and "Galati takes deputy judges ruling to appeal court."

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