Felipa v. Canada (Citizenship and Immigration)

Felipa v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2011-10-03
Neutral citation
2011 FCA 272
File numbers
A-37-10
Notes
Reported Decision
Decision Content
Federal Court of Appeal
CANADA
Cour d'appel fédérale
Date: 20111003
Docket: A-37-10
Citation: 2011 FCA 272
CORAM: SHARLOW J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
LUIS ALBERTO FELIPA
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on March 7, 2011.
Judgment delivered at Ottawa, Ontario, on October 3, 2011.
REASONS FOR JUDGMENT BY: SHARLOW AND DAWSON JJ.A.
DISSENTING REASONS BY: STRATAS J.A.
Federal Court of Appeal
CANADA
Cour d'appel fédérale
Date: 20111003
Docket: A-37-10
Citation: 2011 FCA 272
CORAM: SHARLOW J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
LUIS ALBERTO FELIPA
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
SHARLOW and DAWSON JJ.A.
[1] The principal question in this appeal is whether a former judge of a superior court who is over the age of 75 may be requested to act as a deputy judge of the Federal Court. The Chief Justice of the Federal Court concluded that the answer is yes, and on that basis made an order dismissing a motion of the appellant Luis Alberto Felipa that would preclude a particular deputy judge who is over the age of 75 from hearing his applications for judicial review. Mr. Felipa has appealed.
[2] For the reasons that follow, we would allow this appeal. According to the interpretation of the legislation adopted by the Chief Justice, a judge of a superior court could cease to hold office on his 75th birthday and then immediately be appointed as a deputy judge to exercise all of the powers of a judge of the Federal Court. In our view, that result is so inconsistent with the legislative scheme that the statutory interpretation upon which it is based cannot stand.
Facts and procedural history
[3] The record on this motion contains little information about Mr. Felipa. It appears that he is a foreign national living in Canada, and is the sole caregiver and legal custodial parent of a child who is legally entitled to remain in Canada. Mr. Felipa is at risk of being removed from Canada.
[4] In two proceedings commenced in March of 2009 under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, Mr. Felipa sought leave to apply for judicial review of two decisions of a pre-removal risk assessment officer. One of the impugned decisions denied Mr. Felipa relief from removal on humanitarian and compassionate grounds or public policy considerations, while the second determined that he was not a person in need of protection. Leave was granted and the two applications for judicial review were set down for hearing in Toronto on August 18, 2009. Justice Tannenbaum, a deputy judge of the Federal Court, was assigned to hear both cases.
[5] The Chief Justice chooses the persons who are asked to act as a deputy judge of the Federal Court. As explained by the Chief Justice at paragraph 112 of his reasons (citing Order in Council P.C. 2003-1779), the Governor in Council “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”.
[6] Justice Tannenbaum had been appointed a judge of the Quebec Superior Court in 1982. He retired from the Quebec Superior Court in 2007 upon becoming 75 years of age. He was subsequently asked to act as a deputy judge of the Federal Court. He agreed and was formally appointed as a deputy judge on May 12, 2008.
[7] Shortly before the date scheduled for the hearing of Mr. Felipa’s applications for judicial review, counsel for Mr. Felipa became aware that Justice Tannenbaum had been assigned to hear Mr. Felipa’s applications, and that he was over the age of 75. Counsel for Mr. Felipa immediately communicated with the Chief Justice and Justice Tannenbaum indicating his view that, as a matter of law, Mr. Felipa’s applications could not be heard by a deputy judge over the age of 75. He asked for the assignment of a judge who was not over the age of 75, or for the hearing to be adjourned.
[8] The hearing was adjourned to determine how the matter could best proceed, given that Mr. Felipa’s position had received some publicity and had resulted in a number of other similar requests. On August 31, 2009, according to agreed arrangements, Mr. Felipa filed a motion in both Federal Court files seeking a number of rulings to the effect that a person cannot act as a deputy judge of the Federal Court after attaining the age of 75. The Chief Justice heard the motion and dismissed it by an order dated January 26, 2010, for reasons reported as Felipa v. Canada (Minister of Citizenship and Immigration), 2010 FC 89, [2011] 1 F.C.R. 365.
[9] Although Mr. Felipa’s motion was dismissed, the Chief Justice considered that the motion was in the nature of public interest litigation. On that basis he awarded costs to Mr. Felipa, fixed in the amount of $6,000.00.
Mr. Felipa’s right of appeal
[10] The parties and the Chief Justice agreed that his order dismissing Mr. Felipa’s motion should be subject to appeal. However, a concern was raised that, pursuant to paragraph 72(2)(e) of the Immigration and Refugee Protection Act, no appeal lies from an interlocutory judgment in an application for judicial review made under subsection 72(1). Also, pursuant to paragraph 74(d), a judgment of the Federal Court disposing of an application for judicial review under subsection 72(1) cannot be appealed unless the judge certifies that a serious question of general importance is involved, and states the question.
[11] The Chief Justice concluded that his order is subject to appeal without a certified question because the order is a “separate, divisible judicial act”, citing Charkaoui v. Canada (Minister of Citizenship and Immigration), 2004 FCA 421, 328 N.R. 201 at paragraph 48; and Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at paragraphs 60 and following. However, to remove all doubt and to facilitate an appeal of his order, the Chief Justice certified two questions pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act.
[12] We agree with the Chief Justice, substantially for the reasons he gave, that Mr. Felipa has the right to appeal the order dismissing his motion. The cases upon which the Chief Justice relied were decided in different contexts, but in our view the principles established in those cases apply here to compel the conclusion that paragraph 72(2)(e) of the Immigration and Refugee Protection Act does not bar an appeal from the order determining Mr. Felipa’s motion and that paragraph 74(d) of that Act does not require a certified question.
Mr. Felipa’s motion and the decision of the Federal Court
[13] At the heart of Mr. Felipa’s motion are subsection 99(2) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, and subsections 8(2) and 10(1.1) of the Federal Courts Act, R.S.C. 1985, c. F-7.
[14] Section 99 of the Constitution Act, 1867 is found in Part VII, entitled “Judicature” and reads as follows (emphasis added):
99. (1) Subject to subsection two of this section, the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.
(2) A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the
coming into force of this section if at that time he has already attained that age.
99. (1) Sous réserve du paragraphe (2) du présent article, les juges des cours supérieures resteront en fonction durant bonne conduite, mais ils pourront être révoqués par le gouverneur général sur une adresse du Sénat et de la Chambre des Communes.
(2) Un juge d'une cour supérieure, nommé avant ou après l'entrée en vigueur du présent article, cessera d'occuper sa charge lorsqu'il aura atteint l'âge de soixante-quinze ans, ou à l'entrée en vigueur du présent article si, à cette époque, il a déjà atteint ledit âge.
[15] Section 8 of the Federal Courts Act reads as follows (emphasis added):
8. (1) Subject to subsection (2), the judges of the Federal Court of Appeal and the Federal Court hold office during good behaviour, but are removable by the Governor General on address of the Senate and House of Commons.
(2) A judge of the Federal Court of Appeal or the Federal Court ceases to hold office on becoming 75 years old.
8. (1) Sous réserve du paragraphe (2), les juges de la Cour d’appel fédérale et de la Cour fédérale occupent leur poste à titre inamovible, sous réserve de révocation par le gouverneur général sur adresse du Sénat et de la Chambre des communes.
(2) La limite d’âge pour l’exercice de la charge de juge de la Cour d’appel fédérale et de la Cour fédérale est de soixante-quinze ans.
[16] Section 10 of the Federal Courts Act reads in relevant part as follows (emphasis added):
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.
(2) No request may be made under subsection (1) or (1.1) to a judge of a superior, county or district court in a province without the consent of the chief justice or chief judge of the court of which he or she is a member, or of the attorney general of the province.
(2) La demande visée aux paragraphes (1) et (1.1) nécessite le consentement du juge en chef du tribunal dont l’intéressé est membre ou du procureur général de sa province.
(3) The Governor in Council may approve the making of requests under subsection (1) or (1.1) in general terms or for particular periods or purposes, and may limit the number of persons who may act under this section.
(3) L’autorisation donnée par le gouverneur en conseil en application des paragraphes (1) et (1.1) peut être générale ou particulière et limiter le nombre de juges suppléants.
(4) A person who acts as a judge of a court under subsection (1) or (1.1) shall be paid a salary for the period that the judge acts, at the rate fixed by the Judges Act for a judge of the court other than the Chief Justice of the court, less any amount otherwise payable to him or her under that Act in respect of that period, and shall also be paid the travel allowances that a judge is entitled to be paid under the Judges Act.
(4) Les juges suppléants reçoivent le traitement fixé par la Loi sur les juges pour les juges du tribunal auquel ils sont affectés, autres que le juge en chef, diminué des montants qui leur sont par ailleurs payables aux termes de cette loi pendant leur suppléance. Ils ont également droit aux indemnités de déplacement prévues par cette même loi.
[17] Read literally, the phrase “any person who has held office as a judge” in subsection 10(1.1) of the Federal Courts Act is broad enough to include any person who was once a judge. However, Mr. Felipa argued in the Federal Court and in this Court that, based on subsection 99(2) of the Constitution Act, 1867 or subsection 8(2) of the Federal Courts Act or both, the phrase “any person who has held office as a judge” necessarily excludes a person who is over the age of 75. The Chief Justice rejected that argument. He concluded, for reasons that are well and fully explained, that a person who is a former judge of a superior court over the age of 75 may be appointed a deputy judge of the Federal Court.
Standard of review
[18] The question of whether a former judge of a superior court who is over the age of 75 may be asked to act as a deputy judge of the Federal Court is a question of law, subject to review on the standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paragraph 8.
The question to be asked
[19] The Chief Justice concluded that a deputy judge of the Federal Court does not “hold office” as a judge of the Federal Court, and therefore cannot “cease to hold office” under a mandatory retirement provision that requires a judge to “cease to hold office” upon attaining the age of 75. Two such provisions are subsection 8(2) of the Federal Courts Act and subsection 99(2) of the Constitution Act, 1867, which are reproduced here for ease of reference.
Constitution Act, 1867
99. (2) A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age.
Loi constitutionnelle de 1867
99. (2) Un juge d'une cour supérieure, nommé avant ou après l'entrée en vigueur du présent article, cessera d'occuper sa charge lorsqu'il aura atteint l'âge de soixante-quinze ans, ou à l'entrée en vigueur du présent article si, à cette époque, il a déjà atteint ledit âge.
Federal Courts Act
8. (2) A judge of the Federal Court of Appeal or the Federal Court ceases to hold office on becoming 75 years old.
Loi sur les Cours fédérales
8. (2) La limite d’âge pour l’exercice de la charge de juge de la Cour d’appel fédérale et de la Cour fédérale est de soixante-quinze ans.
[20] It follows, according to the Chief Justice’s reasoning, that neither subsection 8(2) of the Federal Courts Act nor subsection 99(2) of the Constitution Act, 1867 bars a former judge who is over the age of 75 from acting as a deputy judge of the Federal Court. The Chief Justice also concluded that subsection 99(2) of the Constitution Act, 1867 does not apply in any event to deputy judges of a court established by Parliament under section 101 of the Constitution Act, 1867.
[21] We do not consider it necessary to express an opinion on whether a deputy judge “holds office” as a judge because we do not consider it to be dispositive of Mr. Felipa’s motion. We understand Mr. Felipa’s motion to require a determination of who is eligible to act as a deputy judge of the Federal Court. In our view, the issue is the scope of the authority of the Chief Justice of the Federal Court under subsection 10(1.1) of the Federal Courts Act. Subsection 10(1.1) reads in relevant part as follows:
10. (1.1) … 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) […] 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.
[22] We conclude that the proper question to be asked in disposing of Mr. Felipa’s motion is whether subsection 10(1.1) authorizes the Chief Justice to ask a person who is 75 years of age or older to “act as a judge of the Federal Court”. More particularly, should the phrase “any person who has held office as a judge” in subsection 10(1.1) of the Federal Courts Act be interpreted by necessary implication to exclude persons who are 75 years of age or older?
[23] We note parenthetically that this question arises only in the context of a person who was once appointed a judge of a superior court but has resigned or retired. Because of the applicable mandatory retirement provisions, anyone who is currently a judge of a superior court must be under 75 years of age.
[24] The scope of subsection 10(1.1) is a question of statutory interpretation. Before turning to the applicable principles of statutory interpretation it is important to observe that the question before the Court is not whether persons 75 years of age or older should exercise the powers of a judge of the Federal Court, or whether such persons are capable of exercising those powers. Deputy judges over the age of 75 years have served the Federal Court with distinction. Rather, the question before the Court is whether Parliament intended to give the Chief Justice the authority to request that a person over the statutorily mandated retirement age act as a judge of the Federal Court.
Principles of statutory interpretation
[25] Problems of statutory interpretation commonly arise, as in this case, when a court is presented with a question about a statute that Parliament has not expressly answered. The court must consider whether the answer is necessarily implied by relevant aspects of the statutory context and, if it is, answer the question accordingly. The answer must reflect an interpretation of the statute that is consistent with the accepted principles of statutory interpretation, and that the words of the statute can reasonably bear (Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3 at paragraph 58, R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at page 163).
[26] The preferred approach to statutory interpretation has been expressed in the following terms by the Supreme Court of Canada:
Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 3 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103.
See: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21. See also: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867 at paragraph 29.
[27] The Supreme Court restated this principle in the following terms in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at paragraph 10 (emphasis added):
It has been long established as a matter of statutory interpretation that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole.
[28] This formulation of the proper approach to statutory interpretation was recently restated in Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3 at paragraph 21, and Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25 at paragraph 27.
[29] The proper limit to the use of context was explained in the following way by the majority of the Supreme Court in Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141 at paragraph 15:
In the interpretation process, the more general the wording adopted by the lawmakers, the more important the context becomes. The contextual approach to interpretation has its limits. Courts perform their interpretative role only when the two components of communication converge toward the same point: the text must lend itself to interpretation, and the lawmakers’ intention must be clear from the context.
[30] Inherent in the contextual approach to statutory interpretation is the understanding that the grammatical and ordinary sense of a provision is not determinative of its meaning. As Francis Bennion wrote, “[t]he test is What did Parliament mean by these words? rather than What did Parliament mean in the abstract?” (Francis Bennion, Bennion on Statutory Interpretation, 5th ed. (London: LexisNexis, 2008) at page 480). A court must consider the total context of the provision to be interpreted “no matter how plain the disposition may seem upon initial reading” (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 at paragraph 48). From the text and this wider context the interpreting court aims to ascertain legislative intent. Legislative intent is “[t]he most significant element of this analysis” (R. v. Monney, [1999] 1 S.C.R. 652 at paragraph 26).
[31] Legislative intent is a judicial construct, explained in the following terms by Lord Nicholls in Regina v. Secretary of State for the Environment, Transport and the Regions and Another, ex parte Spath Holme Limited, [2001] 2 A.C. 349 at page 396:
Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A G [1975] AC 591, 613:
‘We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.’
[32] In ascertaining legislative intent, a court interpreting legislation must recognize that a line exists between judicial interpretation and legislative drafting. This line is not to be crossed (ATCO at paragraph 51).
Application of the principles of statutory interpretation
[33] Having reviewed the applicable principles of statutory interpretation, the text, legislative context and purpose of subsection 10(1.1) will now be considered.
a. The text of subsection 10(1.1) of the Federal Courts Act
[34] No limit is placed upon the phrases “any person who has held office as a judge of a superior, county or district court in Canada” and “les juges, actuels ou anciens, d’une cour supérieure, de comté ou de district” found in subsection 10(1.1). In the absence of any words of limitation, the text is broad enough to permit a former superior, county or district court judge to act as a deputy judge of the Federal Court, irrespective of his or her age.
[35] However, as explained above, statutory interpretation requires in every case an examination of statutory context. “Words that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context” (Montréal (City) v. 2952-1366 Québec Inc., at paragraph 10). This point is well illustrated by considering section 5.3 of the Federal Courts Act, which states the qualifications for the appointment of a person as a judge of the Federal Court or the Federal Court of Appeal. Section 5.3 reads as follows:
5.3 A person may be appointed a judge of the Federal Court of Appeal or the Federal Court if the person
5.3 Les juges de la Cour d’appel fédérale et de la Cour fédérale sont choisis parmi :
(a) is or has been a judge of a superior, county or district court in Canada;
a) les juges, actuels ou anciens, d’une cour supérieure, de comté ou de district;
(b) is or has been a barrister or advocate of at least 10 years standing at the bar of any province; or
b) les avocats inscrits pendant ou depuis au moins dix ans au barreau d’une province;
(c) has, for at least 10 years,
(i) been a barrister or advocate at the bar of any province, and
(ii) after becoming a barrister or advocate at the bar of any province, exercised powers and performed duties and functions of a judicial nature on a full-time basis in respect of a position held under a law of Canada or a province.
c) les personnes ayant été membres du barreau d’une province et ayant exercé à temps plein des fonctions de nature judiciaire à l’égard d’un poste occupé en vertu d’une loi fédérale ou provinciale après avoir été inscrites au barreau, et ce pour une durée totale d’au moins dix ans.
[36] A literal reading of section 5.3 of the Federal Courts Act, in isolation from its statutory context, could suggest that a person over the age of 75 is eligible to be appointed a judge of the Federal Court if the person meets the statutory conditions in paragraph 5.3(a), (b) or (c). But that is not a plausible interpretation of section 5.3. Why not? Because it is abundantly clear from subsection 8(2) of the Federal Courts Act that a person over the age of 75 is not eligible to be appointed a judge of the Federal Court.
[37] For similar reasons, the literal meaning of the text of subsection 10(1.1) of the Federal Courts Act does not fully convey its meaning. As explained in more detail below, the statutory context suggests that only persons under the age of 75 may be requested to act as deputy judges. As this is an interpretation that the text of subsection 10(1.1) is capable of bearing, it is the interpretation that we would adopt.
b. The legislative context of subsection 10(1.1) of the Federal Courts Act
[38] As the majority of the Supreme Court observed in Montréal (City) v. 2952-1366 Québec Inc., at paragraph 17, the context of legislation involves a number of factors. The “overall context in which a provision was adopted can be determined by reviewing its legislative history and inquiring into its purpose.” The immediate context of a provision can be determined by reviewing the legislation in which it is found. In the following paragraphs, the relevant aspects of the legislative context are reviewed.
i. Legislative evolution and history
[39] The Federal Court is the successor to the Exchequer Court. The Exchequer Court was created in 1875 pursuant to section 101 of the Constitution Act, 1867 by an Act to establish a Supreme Court, and a Court of Exchequer, for the Dominion of Canada, S.C. 1875, c. 11. Initially, the Chief Justice and judges of the Supreme Court of Canada were the Chief Justice and judges of the Exchequer Court.
[40] In 1887, an Act to amend “The Supreme and Exchequer Courts Act,” and to make better provision for the Trial of Claims against the Crown, S.C. 1887, c. 16 came into force. The Exchequer Court of Canada was continued (section 2) and the complement of the court was set as a single judge, appointed by the Governor in Council (subsection 3(1)). Subsection 3(2) of that Act provided that:
3. (2) Any person may be appointed a judge of the Court who is or has been 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 said Provinces.
3. (2) Pourra être nommé juge de la cour quiconque sera ou aura été juge d’une cour supérieure ou de comté dans quelqu’une des provinces du Canada, ou un avocat ayant pratiqué pendant au moins dix ans au barreau de quelqu’une de ces provinces.
[41] Provision was made in subsection 3(5) for the appointment of a person to act in the event of the sickness or absence from Canada of the judge of the Court. Subsection 3(5) also spoke to the qualifications of such a person:
3. (5) In case of sickness or absence from Canada of the judge of the court, the Governor in Council may specially appoint some other person having the qualifications mentioned in subsection two of this section, who shall be sworn to the faithful performance of the duties of his office, and shall have all the powers incident thereto during the
sickness or absence from Canada of the judge of the court.
3. (5) Dans le cas de maladie du juge de la cour ou de son absence du Canada, le Gouverneur en conseil pourra, spécialement nommer pour le remplacer quelque autre personne possédant les qualités mentionnées au paragraphe deux du présent article ci-dessus, laquelle prêtera serment de bien et fidèlement remplir les devoirs de sa
charge et sera revêtue de tous les
pouvoirs y attachés, durant la maladie ou l’absence du juge de la cour.
The judge of the Exchequer Court held office during good behaviour (section 4).
[42] In 1912, the complement of the Court was enlarged to consist of two judges: an Act to amend the Exchequer Court Act, S.C. 1912, c. 21, section 1. Thereafter, in 1920, the power to appoint a person to act as a deputy judge of the Exchequer Court was first enacted: an Act to amend the Exchequer Court Act, S.C. 1919-20, c. 26, section 2. This was effected by amending subsection 3(5), which by that point had become section 8 of the Exchequer Court Act, R.S.C. 1906, c. 140, to read as follows (emphasis added):
8. The Governor in Council may, in case of the sickness or absence from Canada or engagement upon other duty of the President or of the Puisne Judge, or, at the request of the President, for any other reason which he deems sufficient, specially appoint a deputy judge having the qualifications for appointment hereinbefore mentioned, who shall be sworn to the faithful performance of the duties of the office, and shall temporarily have all the powers incident thereto to be terminated at the pleasure of the Governor in Council.
8. Advenant que le président ou le juge puîné soit malade ou absent du Canada ou occupé à d’autres devoirs, ou à la demande du président pour toute autre raison qu’il juge suffisante, le Gouverneur en conseil peut spécialement nommer un juge suppléant ayant les qualités requises susmentionnées, qui est assermenté pour remplir fidèlement les devoirs de la charge, et ce juge suppléant a provisoirement tous les pouvoirs attachés à cette charge, lesquels prennent fin au gré du Gouverneur en conseil.
[43] The qualifications for appointment referred to in section 8 were as follows:
5. Any person may be appointed a judge of the Court who is or has been 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 said provinces.
5. Peut être nommé juge de la cour quiconque est ou a été juge d’une cour supérieure ou de comté dans quelqu’une des provinces du Canada, ou un avocat qui a pratiqué, pendant au moins dix ans, au barreau de quelqu’une de ces provinces.
[44] Thus, Parliament provided that to be eligible for appointment as a deputy judge of the Exchequer Court, a person must have possessed the qualifications for appointment as a judge of the Exchequer Court. A person not qualified to serve as a judge of the Court could not serve as a deputy judge of the Court. At this time, all judges were appointed for life, during good behaviour, so no issue could arise with respect to the age of any judge or deputy judge.
[45] In 1927, a mandatory retirement age was introduced for the judges of the Supreme Court of Canada and the Exchequer Court. Judges of these Courts were to “cease to hold office upon attaining the age of seventy-five years, or immediately, if he has already attained that age” (an Act to amend the Supreme Court Act, S.C. 1926-27, c. 38, section 2; and an Act to amend the Exchequer Court Act, S.C. 1926-27, c. 30, section 1).
[46] It is appropriate, when construing a statutory amendment, to identify the problem that this amendment was designed to alleviate by considering excerpts from Hansard (Canada 3000 Inc., (Re); Inter-Canadian (1991) Inc. (Trustee of), 2006 SCC 24, [2006] 1 S.C.R. 865 at paragraph 57). The perceived problem, as disclosed by the Parliamentary debates relating to the amendment imposing a mandatory retirement age for judges of the Supreme Court of Canada and the Exchequer Court, was that life long appointments for judges entailed an unacceptable risk that judges might not be capable of determining for themselves whether they remained fit to carry on their duties as they aged (Hansard, House of Commons Debates, March 10, 1927 at page 1082).
[47] The general tenor of this concern is captured in the following extract of remarks made by Mr. R.B. Bennett, later to become leader of the opposition and Prime Minister:
… I do not desire to express a definite opinion with regard to the age, as between seventy-five or eighty, but I think you will find there is a general consensus of opinion among litigants in the country that when a judge has attained the age of seventy-five he has, not wishing to be unkind, outlived his usefulness. There are cases where this condition does not apply and there always will be such cases. But speaking generally when men have discharged the difficult duties and borne the wear and toil of professional work to the extent to which a successful practitioner does, at the age of seventy-five I think they should be willing to take a holiday and enjoy a well-earned pension. Whether seventy-five is the exact age or not, I am not prepared to say, but I do feel from my own observation that at the age of eighty no gentleman should be occupying a seat on the bench. That is my personal view.
See: Hansard, House of Commons Debates, March 25, 1927 at page 1556.
[48] To similar effect are the comments of the then Minister of Justice, the Honourable Ernest Lapointe, who quoted as follows from Chief Justice Taft of the United States Supreme Court:
… There is no doubt that there are judges at seventy who have ripe judgments, active minds, and much physical vigour, and that they are able to perform their judicial duties in a very satisfactory way. Yet in a majority of cases when men come to be seventy, they have lost vigour, their minds are not as active, their senses not as acute, and their willingness to undertake great labour is not so great as in younger men, and as we ought to have in judges who are to perform the enormous task which falls to the lot of Supreme court justices. In the public interest, therefore, it is better that we lose the services of the exceptions who are good judges after they are seventy and avoid the presence on the bench of men who are not able to keep up with the work, or to perform it satisfactorily. The duty of a Supreme court judge is more than merely taking in the point at issue between the parties, and deciding it. It frequently involves a heavy task in reading records and writing opinions. It thus is a substantial drain upon one’s energy. When most men reach seventy, they are loath thoroughly to investigate cases where such work involves real physical endurance.
See: Hansard, House of Commons Debates, March 25, 1927 at page 1562.
[49] The Debates also reflect the desire of the Minister of Justice and other members of the House of Commons that a retirement age be legislated for judges appointed to the courts established pursuant to section 96 of the Constitution Act, 1867. This, however, was viewed to be beyond the legislative authority of Parliament in that it required an amendment to the then British North America Act, 1867. The constitutional amendment necessary to impose a mandatory retirement age of 75 on judges of the section 96 courts was finally made by the U.K. Parliament in 1960.
[50] In 1927, when the mandatory retirement provision came into effect for judges of the Exchequer Court, sections 5, 8 and 9 of the Exchequer Court Act, R.S.C. 1927, c. 34, read as follows (emphasis added):
5. Any person may be appointed a judge of the Court who is or has been 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 said provinces.
…
8. The Governor in Council may, in case of the sickness or absence from Canada or engagement upon other duty of the President or of the Puisne Judge, or, at the request of the President, for any other reason which he deems sufficient, specially appoint a deputy judge having the qualifications for appointment hereinbefore mentioned, who shall be sworn to the faithful performance of the duties of the office, and shall temporarily have all the
powers incident thereto to be terminated at the pleasure of the Governor in Council.
9. Every judge of the Court shall hold office during good behaviour, but shall be removable by the Governor General on address of the Senate and House of Commons: Provided that each judge, whether heretofore appointed or hereafter to be appointed, shall cease to hold office upon attaining the age of seventy-five years, or immediately, if he has already attained that age.
5. Peut être nommé juge de la cour quiconque est ou a été juge d’une cour supérieure ou de comté dans quelqu’une des provinces du Canada, ou un avocat qui a exercé pendant au moins dix ans au barreau de l’une de ces provinces.
[. . .]
8. Lorsque le président ou le juge puîné est malade ou absent du Canada ou occupé à d’autres devoirs, ou lorsque le président le demande pour tout autre motif qu’il juge suffisant, le gouverneur en son conseil peut nommer un juge suppléant extraordinaire ayant les qualités requises susmentionnées. Celui-ci doit prêter serment qu’il remplira fidèlement les devoirs de la charge, et il est investi provisoirement de tous les pouvoirs attachés à cette
charge, lesquels prennent fin au gré du gouverneur en son conseil.
9. Tout juge de la cour reste en fonctions durant bonne conduite, mais il peut être démis par le gouverneur gén