2011 FCA 272, 2011 FCA 272

[2012] 1 F.C.R. 3 A-37-10 2011 FCA 272 Luis Alberto Felipa ( Appellant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Felipa v. Canada (Citizenship and Immigration) Federal Court of Appeal, Sharlow, Dawson and Stratas JJ.A.—Toronto, March 7; Ottawa, October 3, 2011.

Judges and Courts –– Appeal from Federal Court decision determining that former judge of superior court who is over age of 75 may be requested to act as deputy judge of Federal Court — Deputy Judge assigned to hear judicial review of immigration decisions in present case over age 75 — Federal Court rejecting argument that phrase “any person who has held office as a judge” in Federal Courts Act , s. 10(1.1) necessarily excluding person over 75; concluding that since deputy judge of Federal Court not “holding office” as Federal Court judge, cannot “cease to hold office” under mandatory retirement provision — Federal Court wrongly concluding that Exchequer Court Act, s. 9, introducing mandatory retirement age for judges, not precluding judge of superior or county court over 75 from being appointed as deputy judge — Before Federal Court Act enacted, Parliament not intending that persons 75 or older could be asked to act as deputy judges — Status of deputy judges under Exchequer Court Act relevant to deputy judge provision in Federal Courts Act since Federal Court successor to Exchequer Court — While jurisdiction of Exchequer Court, Federal Court different, differences not relevant to question of Parliament’s intent concerning age of deputy judges — Despite broad language used in Federal Courts Act, s. 10(1.1), that

section subject to implied limitation that persons 75 or older should not serve as deputy judges — Contrary

interpretation violating Parliament’s manifest legislative policy that person should not be permitted to perform judicial duties after 75 — Appeal allowed — Per Stratas J.A. (dissenting): Deputy judges may act after attaining 75 years of age — Federal Courts Act, s. 10 silent about mandatory retirement at age 75 — Act’s distinction between judicial officials who “hold office”, those who do not extending to issue of retirement — Per diem status of deputy judges’ remuneration, selection to hear cases by Chief Justice of Federal Court not resulting in lack of judicial independence — Presumption that judges will carry out duties properly, with integrity not rebutted in present case.

Construction of Statutes — Federal Court determining that former judge of superior court who is over age of 75 may be requested to act as deputy judge of Federal Court — Statutory context of Federal Courts Act , s. 10(1.1) suggesting that only persons under age of 75 may be requested to act as deputy judges — Text of s. 10(1.1) capable of bearing such

interpretation — Contrary

interpretation violating manifest legislative policy of Parliament that person should not be permitted to perform judicial duties after 75.

Constitutional Law — Distribution of Powers — Federal Court determining that former judge of superior court who is over age of 75 may be requested to act as deputy judge of Federal Court — Not necessary to decide whether Federal Court judge constituting judge of superior court within meaning of Constitution Act, 1867, s. 99(2) in present case — Arguable that s. 101 judges falling within scope of ss. 96, 99, 100 insofar as provisions stating elements of constitutional guarantees of judicial independence — Per Stratas J.A. (dissenting): Mandatory retirement requirement in Constitution Act, 1867, s. 99(2) not applying to deputy judges — Federal Court right to consider legislative practice, constitutional understandings herein, in particular long-standing understanding that s. 99 not applying to federal courts created under s. 101.

This was an appeal from a Federal Court decision determining that 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 Federal Court dismissed the appellant’s motion that would preclude a particular deputy judge who is over the age of 75 from hearing his applications for judicial review. The appellant is a foreign national living in Canada who is at risk of being removed therefrom. He was granted leave to apply for judicial review of two decisions made by a pre-removal risk assessment officer.

A Deputy Judge of the Federal Court was assigned to hear both cases. When the appellant’s counsel became aware that the Deputy Judge assigned to hear the applications was over 75, he 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 Federal Court rejected the appellant’s argument 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” in subsection 10(1.1) of the Federal Courts Act necessarily excludes a person who is over the age of 75. The Federal Court concluded that a deputy judge of the Federal Court does not “hold office” as a Federal Court judge 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.

The issue was whether subsection 10(1.1) of the Federal Courts Act authorizes the Chief Justice of the Federal Court to ask a person who is 75 years of age or older to act as a judge of the Federal Court. Held (Stratas J.A. dissenting), the appeal should be allowed. Per Sharlow and Dawson JJ.A.: While 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) of the Federal Courts Act , statutory

interpretation requires in every case an examination of statutory context. The statutory context herein suggests that only persons under the age of 75 may be requested to act as deputy judges. Because this is an

interpretation that the text of subsection 10(1.1) is capable of bearing, it was the

interpretation that was adopted. A review of the legislative evolution and history of the deputy judge provisions showed that prior to the enactment of the Federal Court Act , Parliament did not intend that persons 75 years of age or older could be asked to act as deputy judges. The status of deputy judges under the Exchequer Court Act was relevant to the

interpretation of the deputy judge provision in the Federal Courts Act since the

Federal Court is the successor to the Exchequer Court and the provisions regarding deputy judges contained in the Exchequer Court Act were continued in its successor statutes. In 1927,

section 9 of the Exchequer Court Act introduced a mandatory retirement age for its judges who were to cease to hold office upon attaining the age of 75. The Federal Court wrongly concluded that when this mandatory retirement provision came into effect, a judge of a superior or county court over the age of 75 could be appointed as a deputy judge since the provision constituted a limitation and not a qualification.

Section 9 of the Exchequer Court Act had broad application—it applied to sitting judges of the Exchequer Court and to those to be appointed in the future. Persons 75 years of age were no longer qualified or eligible to be appointed to the Court. While the jurisdiction of the Exchequer Court and the Federal Court are different, those differences were not relevant to the question of Parliament’s intent concerning the age of deputy judges. Statutory amendments to the Exchequer Court Act after 1927 did not reflect a change in legislative intent concerning the age of deputy judges.

The current statutory context of the Federal Courts Act was also considered. Despite the broad language used in subsection 10(1.1) thereof, it must be understood to be subject to the implied limitation that persons 75 years of age or older should not serve as deputy judges. The contrary

interpretation would violate the manifest legislative policy of Parliament that a person should not be permitted to perform judicial duties after attaining the age of 75. The purpose of subsection 10(1.1) of the Federal Courts Act is to facilitate the administration of justice by allowing the Chief Justice to augment his or her judicial resources from time to time when an additional full- time position is not necessary or available.

While subsection 10(1.1) should be interpreted to promote this legislative purpose, there was no evidence that this purpose requires that persons 75 years of age and older be permitted to act as a deputy judge. It was not necessary to address the scope of subsection 99(2) of the Constitution Act, 1867 and more particularly whether a Federal Court judge is a judge of a superior court within the meaning of subsection 99(2) given the basis on which the appeal was disposed of.

Case law has not provided a conclusive answer to the question of whether sections 96, 99 and 100 apply to the judges of courts established under

section 101 of the Constitution Act, 1867 . It is arguable that

section 101 judges are within the scope of sections 96, 99 and 100 insofar as those provisions state the elements of the constitutional guarantees of judicial independence, even though the Constitution Act, 1867 is not the only source of those constitutional guarantees. Per Stratas J.A. (dissenting): An assessment of all the interpretive clues results in the conclusion that deputy judges may act after attaining 75 years of age. Unlike other legislative provisions,

section 10 of the Federal Courts Act makes all former superior, county or district court judges eligible to serve as deputy judges and does not use express language prohibiting those who have attained 75 years of age from serving. It is indeed silent about mandatory retirement at age 75. Parliament’s failure in

section 10 to follow its consistent drafting practice when it imposes mandatory retirement was an important interpretive clue suggesting that deputy judges under the Federal Courts Act can continue to act after attaining 75 years of age. The Federal Courts Act distinguishes between judicial officials who “hold office” and those who do not, such as deputy judges. This distinction extends to the issue of retirement. While office holders must cease to hold office on becoming 75, Parliament has not provided for a retirement age for non-office holding judicial officials, including deputy judges.

The consistent scheme in Parliament’s legislative text concerning office holders and non-office holders supplies clear meaning that only Parliament can modify. The status of deputy judges under the Exchequer Court Act had little bearing, if any, on the issue in the present case. And in the event that it did, it confirmed that deputy judges of the Federal Court can act after attaining 75 years of age. Moreover,

section 10 of the Federal Courts Act allows for the appointment of additional judicial officials—deputy judges—to assist with temporary surges and overflows of work, thereby furthering the objectives of access to timely justice and the efficient operation of the Federal Court. The mandatory retirement requirement in subsection 99(2) of the Constitution Act, 1867 does not apply to deputy judges. In this particular context and case, the Federal Court was right to consider legislative practice and constitutional understandings. For nearly a century and a half, everyone, including Parliament, has been acting on the basis that

section 99 of the Constitution Act, 1867 does not apply to the federal courts created under

section 101 thereof. There is no evidence of any other practice or understanding to the contrary. The per diem status of deputy judges’ remuneration and their selection to hear cases by the Chief Justice of the Federal Court does not result in a lack of judicial independence. Judicial independence has both an individual and an institutional dimension. Because the goal of judicial independence is maintaining public confidence in the impartiality of the judiciary, judges must not only be independent in fact but must also be seen to be independent.

In this case, the informed person, viewing the matter realistically and practically, would conclude that there is no actual or apparent threat to judicial independence. The presumption that judges will carry out their duties properly, with integrity and will not allow themselves to be manipulated or influenced by their Chief Justice in a particular case was not rebutted in this case. STATUTES AND REGULATIONS CITED Act of Settlement (The), 1700 (U.K.), 12 & 13 Will. III, c. 2.

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Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44]. Commissions and Salaries of Judges Act (U.K.), 1 Geo. III, c. 23. Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

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F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 5 (as am. idem, s. 16), 5.1 (as enacted by S.C. 2001,c. 41, s. 144; 2002, c. 8, s. 16), 5.2 (as enacted idem), 5.3 (as enacted idem), 5.4 (as enacted idem; 2006, c. 11, s. 20), 6 (as am. by S.C.2002, c. 8, s. 16; 2006, c. 11, s. 21), 7 (as am. by S.C. 2002, c. 8, s. 17; 2006, c. 11, s. 22(E)), 8 (as am. by S.C. 2002, c. 8, s. 18), 9(as am. idem, s. 19), 10 (as am. idem), 10.1 (as enacted idem), 12(7) (as am. idem, s. 20), (8) (as am. idem), 13 (as am. idem, s. 21), 45(as am. idem, s. 42). Formal Documents Regulations, C.R.C., c. 1331, s. 4(6).

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 72(1),(2)(e), 74(d).

Interpretation Act, R.S.C., 1985, c. I-21, s. 45(4). Judges Act, R.S.C., 1985, c. J-1, s. 41.1 (as enacted by S.C. 2001, c. 7, s. 20; 2006, c. 11, s. 10). Northwest Territories Act, R.S.C., 1985, c. N-27, s. 33. Nunavut Act, S.C. 1993, c. 28, s. 31(3). Order in Council P.C. 2003-1779. Public Officers Act, R.S.C., 1985, c. P-31, s. 3 (as am. by S.C. 2003, c. 22, s. 224(E)). Supreme and Exchequer Court Act (The), S.C. 1875, c. 11. Supreme Court Act, R.S.C., 1985, c. S-26, ss. 9(2), 27(2). Tax Court of Canada, R.S.C., 1985, c. T-2, s. 7(2) (as am. by R.S.C., 1985 (3rd Supp.), c. 16, s. 8).

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Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, 380 A.R. 1, 263 D.L.R.(4th) 193; R. v. Monney, (SCC), [1999] 1 S.C.R. 652, (1999), 171 D.L.R. (4th) 1, 133 C.C.C. (3d) 129; Regina v.Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd., [2001] 2 A.C. 349 (H.L.); Addy v.The Queen, (FC), [1985] 2 F.C. 452, (1985), 22 D.L.R. (4th) 52, 8 C.C.E.L. 13 (T.D.); Attorney-General for Ontarioand Others v. Attorney-General for Canada and Others and Attorney-General for Quebec, (UK JCPC), [1947] A.C.127 (P.C.); Edwards, Henrietta Muir v.

Attorney-General for Canada, (UK JCPC), [1930] A.C. 124 (P.C.); Valente v.The Queen et al., (SCC), [1985] 2 S.C.R. 673, (1985), 24 D.L.R. (4th) 161, 23 C.C.C. (3d) 193; Beauregard v. Canada, (SCC), [1986] 2 S.C.R. 56, (1986), 30 D.L.R. (4th) 481, 26 C.R.R. 59; Mackin v. New Brunswick (Minister of Finance);Rice v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405, 245 N.B.R. (2d) 299, 209 D.L.R. (4th) 564. referred to: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, [2002] 7 W.W.R. 1; Ruby v. Canada (SolicitorGeneral), 2002 SCC 75, [2002] 4 S.C.R. 3, 219 D.L.R. (4th) 385, 49 Admin.

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(1991) Inc. (Trustee of), 2006 SCC 24,[2006] 1 S.C.R. 865, 269 D.L.R. (4th) 79, 20 C.B.R. (5th) 1; Perka et al. v. The Queen, (SCC), [1984] 2 S.C.R. 232,(1984), 13 D.L.R. (4th) 1, [1984] 6 W.W.R. 289; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island;Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island; R. v. Campbell; R. v. Ekmecic;R. v. Wickman; Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice), (SCC), [1997] 3 S.C.R. 3, (1997),206 A.R. 1, 156 Nfld. & P.E.I.R. 1; R. v.

Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, 235 D.L.R. (4th) 216, 180 C.C.C. (3d) 449; Steel v.Canada (Attorney General), 2011 FCA 153, 418 N.R. 327; Société des Acadiens v. Association of Parents, (SCC),[1986] 1 S.C.R. 549, (1986), 69 N.B.R. (2d) 271, 27 D.L.R. (4th) 406; Reference re Secession of Quebec, (SCC),[1998] 2 S.C.R. 217, (1998), 161 D.L.R. (4th) 385, 55 C.R.R. (2d) 1; Manitoba (Attorney General) v. Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R. 110, (1987), 38 D.L.R. (4th) 321, [1987] 3 W.W.R. 1; Reference re The Farm Products MarketingAct, R.S.O. 1950,

Chapter 131, as amended, (SCC), [1957] S.C.R. 198, (1957), 7 D.L.R. (2d) 257; Ell v. Alberta, 2003SCC 35, [2003] 1 S.C.R. 857, 330 A.R. 201, 227 D.L.R. (4th) 217; R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267, 412 A.R. 361, 280D.L.R. (4th) 486; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, 231 D.L.R. (4th) 1, [2004] 2 W.W.R. 1; R. v.S. (R.D.), (SCC), [1997] 3 S.C.R. 484, (1997), 161 N.S.R. (2d) 241, 151 D.L.R. (4th) 193; Corporal Alexis Leblanc v.Her Majesty the Queen, 2011 CMAC 2. AUTHORS CITED Bastarache, Michel et al. The Law of Bilingual

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L.R. (5th) 77, 357 F.T.R. 253) determining that aformer 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. Appealallowed, Stratas J.A. dissenting. APPEARANCES Rocco Galati for appellant. Gina M. Scarcella and Jamie R. D. Todd for respondent. SOLICITORS OF RECORD Rocco Galati Law Firm Professional Corporation, Toronto, for appellant. Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by [1] Sharlow and Dawson JJ.A.: 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 thatthe answer is yes, and on that basis made an order dismissing a motion of the appellant Luis Alberto Felipa that would preclude aparticular deputy judge who is over the age of 75 from hearing his applications for judicial review [2010 FC 89, [2011] 1 F.C.R. 365].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 ChiefJustice, a judge of a superior court could cease to hold office on his 75th birthday and then immediately be appointed as a deputy judgeto 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 thestatutory

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 beingremoved 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 theimpugned 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 judicialreview were set down for hearing in Toronto on August 18, 2009.

Justice Tannenbaum, a Deputy Judge of the Federal Court, wasassigned 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 ChiefJustice at paragraph 112 of his reasons (citing Order in Council P.C. 2003-1779), the Governor in Council “plays no role in the chiefjustice’s decision to request that a specific eligible person act as a deputy judge.

The approval of the Governor in Council is granted byway 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 SuperiorCourt in 2007 upon becoming 75 years of age. He was subsequently asked to act as a deputy judge of the Federal Court. He agreed andwas 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 becameaware that Justice Tannenbaum had been assigned to hear Mr. Felipa’s applications, and that he was over the age of 75. Counsel forMr. 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 notover 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 somepublicity and had resulted in a number of other similar requests. On August 31, 2009, according to agreed arrangements, Mr. Felipa fileda 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 FederalCourt after attaining the age of 75. The Chief Justice heard the motion and dismissed it by an order dated January 26, 2010, for reasonsreported as Felipa v. Canada (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 interestlitigation. On that basis he awarded costs to Mr. Felipa, fixed in the amount of $6 000. 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, aconcern was raised that, pursuant to paragraph 72(2)(

e) of the Immigration and Refugee Protection Act, no appeal lies from aninterlocutory judgment in an application for judicial review made under subsection 72(1).

Also, pursuant to paragraph 74(d), a judgmentof the Federal Court disposing of an application for judicial review under subsection 72(1) cannot be appealed unless the judge certifiesthat 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 (Re), 2004 FCA 421, [2005] 2 F.C.R. 299, at paragraph 48; and Canada (Minister of Citizenshipand Immigration) v. Tobiass, (SCC), [1997] 3 S.C.R. 391, at paragraph 60 and following.

However, to remove alldoubt and to facilitate an appeal of his order, the Chief Justice certified two questions pursuant to paragraph 74(

d) of the Immigrationand 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 dismissinghis motion. The cases upon which the Chief Justice relied were decided in different contexts, but in our view the principles established inthose cases apply here to compel the conclusion that paragraph 72(2)(

e) of the Immigration and Refugee Protection Act does not bar anappeal 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, 30 & 31 Vict., c. 3 (U.K.) [as am. byCanada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982, Item 1], reprinted in R.S.C., 1985, Appendix II, No. 5, andsubsections 8(2) [as am. by S.C. 2002, c. 8, s. 18] and 10(1.1) [as enacted idem, s. 19] of the Federal Courts Act, R.S.C., 1985, c. F-7 [s.1 (as am. idem, s. 14)]. [14]

Section 99 of the Constitution Act, 1867 is found in

Part VII, entitled “Judicature” and reads as follows (emphasis added):

Tenure of office of Judges 99.

(1) Subject to subsection (2) 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. Termination at age 75

(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. [ 15 ]

Section 8 [as am. by S.C. 2002, c. 8 , s. 18] of the Federal Courts Act reads as follows (emphasis added): Tenure of office 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. Cessation of office

(2) A judge of the Federal Court of Appeal or the Federal Court ceases to hold office on becoming 75 years old. [ 16 ]

Section 10 [as am. idem , s. 19] of the Federal Courts Act reads in relevant part as follows (emphasis added): 10. … Deputy judges of the Federal Court

(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. Consent required

(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. Approval of Governor in Council

(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. Salary of deputy judge

(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. [ 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. … Termination at age 75

(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. Federal Courts Act 8. … Cessation of office

(2) A judge of the Federal Court of Appeal or the Federal Court ceases to hold office on becoming 75 years old. [ 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 notconsider it to be dispositive of Mr. Felipa’s motion. We understand Mr. Felipa’s motion to require a determination of who is eligible toact 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 Courtunder subsection 10(1.1) of the Federal Courts Act.

Subsection 10(1.1) reads in relevant part as follows: 10. … Deputyjudges oftheFederalCourt (1.1) … any judge of a superior, county or district court in Canada, and any person who has held office as a judge of asuperior, county or district court in Canada, may, at the request of the Chief Justice of the Federal Court made with theapproval of the Governor in Council, act as a judge of the Federal Court, and while so acting has all the powers of a judge ofthat court and shall be referred to as a deputy judge of that court. [22] We conclude that the proper question to be asked in disposing of Mr.

Felipa’s motion is whether subsection 10(1.1) authorizesthe 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 thephrase “any person who has held office as a judge” in subsection 10(1.1) of the Federal Courts Act be interpreted by necessaryimplication 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 superiorcourt but has resigned or retired.

Because of the applicable mandatory retirement provisions, anyone who is currently a judge of asuperior 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 statutoryinterpretation it is important to observe that the question before the Court is not whether persons 75 years of age or older should exercisethe powers of a judge of the Federal Court, or whether such persons are capable of exercising those powers. Deputy judges over the ageof 75 years have served the Federal Court with distinction. Rather, the question before the Court is whether Parliament intended to givethe 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 thatParliament has not expressly answered. The court must consider whether the answer is necessarily implied by relevant aspects of thestatutory context and, if it is, answer the question accordingly. The answer must reflect an

interpretation of the statute that is consistentwith the accepted principles of statutory

interpretation, and that the words of the statute can reasonably bear (Ruby v. Canada (SolicitorGeneral), 2002 SCC 75, [2002] 4 S.C.R. 3, at paragraph 58; R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham,Ont.: LexisNexis Canada, 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); RuthSullivan, 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 encapsulatesthe approach upon which I prefer to rely. He recognizes that statutory

interpretation cannot be founded on the wording of the legislationalone. 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 grammaticaland 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, (SCC), [1997] 3 S.C.R.213; Royal Bank of Canada v. Sparrow Electric Corp., (SCC), [1997] 1 S.C.R. 411; Verdun v. Toronto-DominionBank, (SCC), [1996] 3 S.C.R. 550; Friesen v. Canada, (SCC), [1995] 3 S.C.R. 103. See: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [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 intheir 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, (SCC), [1999] 3 S.C.R. 804, at para. 50. The

interpretation of a statutoryprovision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as awhole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in theinterpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of thewords plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in allcases 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 (AttorneyGeneral), 2011 SCC 1, [2011] 1 S.C.R. 3, at paragraph 21; and Canada (Information Commissioner) v. Canada (Minister of NationalDefence), 2011 SCC 25, [2011] 2 S.C.R. 306, 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. Thecontextual approach to

interpretation has its limits. Courts perform their interpretative role only when the two components ofcommunication converge toward the same point: the text must lend itself to

interpretation, and the lawmakers’ intention must be clearfrom the context. [30] Inherent in the contextual approach to statutory

interpretation is the understanding that the grammatical and ordinary sense of aprovision is not determinative of its meaning. As Francis Bennion wrote, “The test is What did Parliament mean by these words? ratherthan What did Parliament mean in the abstract?” [footnote omitted] (Francis Bennion, Bennion on Statutory

Interpretation: A Code, 5thed. (London: LexisNexis, 2008), at page 480). A court must consider the total context of the provision to be interpreted “no matter howplain 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, (SCC), [1999] 1 S.C.R. 652, atparagraph 26). [31] Legislative intent is a judicial construct, explained in the following terms by Lord Nicholls in Regina v. Secretary of State for theEnvironment, Transport and the Regions, Ex parte Spath Holme Ltd., [2001] 2 A.C. 349 (H.L.), at pages 396–397: Statutory

interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particularcontext. 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.

Itis not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of thedraftsman, or of individual members or even of a majority of individual members of either House. These individuals will often havewidely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefullyinadequate. Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that thewords under consideration cannot reasonably be taken as used by Parliament with that meaning.

As Lord Reid said in Black-ClawsonInternational Ltd v Papierwerke Waldhof-Aschaffenburg A G [1975] AC 591, 613: “We often say that we are looking for the intention ofParliament, 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

interpretationand 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 subsection10(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 anywords of limitation, the text is broad enough to permit a former superior, county or district court judge to act as a deputy judge of theFederal Court, irrespective of his or her age. [35] However, as explained above, statutory

interpretation requires in every case an examination of statutory context. “Words thatappear clear and unambiguous may in fact prove to be ambiguous once placed in their context” (Montréal (City) v. 2952-1366Québec Inc., at paragraph 10). This point is well illustrated by considering

section 5.3 [as enacted by S.C. 2002, c. 8, s. 16] of theFederal Courts Act, which states the qualifications for the appointment of a person as a judge of the Federal Court or the Federal Courtof Appeal.

Section 5.3 reads as follows: Who may beappointedjudge 5.3 A person may be appointed a judge of the Federal Court of Appeal or the Federal Court if the person (

a) is or has been a judge of a superior, county or district court in Canada; (

b) is or has been a barrister or advocate of at least 10 years standing at the bar of any province; or (

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 andfunctions of a judicial nature on a full-time basis in respect of a position held under a law of Canada or a province. [36] A literal reading of

section 5.3 of the Federal Courts Act, in isolation from its statutory context, could suggest that a person overthe age of 75 is eligible to be appointed a judge of the Federal Court if the person meets the statutory conditions in paragraphs 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 theFederal 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 itsmeaning. As explained in more detail below, the statutory context suggests that only persons under the age of 75 may be requested to actas deputy judges. As this is an

interpretation that the text of subsection 10(1.1) is capable of bearing, it is the

interpretation that wewould 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 The Supreme and Exchequer Court Act , 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. … Who may be appointed judge

(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. [ 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. … Provision in case of sickness, etc.

(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. 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. 1920, 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): Power to appoint a deputy judge 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. [ 43 ] The qualifications for appointment referred to in

section 8 were as follows: Who may be appointed judge 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. [ 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 [30 & 31 Vict., c. 3 (U.K.) [R.S.C., 1985, Appendix II, No. 5]]. 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 [ British North America Act, 1960 , 9 Eliz. II, c. 2 (U.K.) [R.S.C., 1985, Appendix II, No. 37]]. [ 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): Who may be appointed judge 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. … Power to appoint a deputy judge 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. Term of office 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. [ 51 ] Pursuant to

section 9 of the Exchequer Court Act as it read in 1927, a judge of that Court would cease to hold office upon reaching 75 years of age. While the qualifications for appointment remained unchanged, after the enactment of

section 9 no individual 75 years of age or more could be appointed as a judge of the Exchequer Court. In this circumstance, did Parliament intend that a judge of a superior or county court over the age of 75 could be appointed as a deputy judge? The Chief Justice concluded that it did. At paragraph 147 of his reasons, the Chief Justice wrote that: Moreover, the retirement age inserted into

section 9 was a limitation and not a qualification. That limitation could not be one of the “qualifications for appointment hereinbefore mentioned” referred to in sections 5 and 8. I conclude that

section 9 did not prohibit a person older than 75 from acting as a deputy judge of the Exchequer Court. [Footnote omitted.] [ 52 ] We respectfully disagree.

Section 9 of the Exchequer Court Act had broad application—it applied to sitting judges of the Exchequer Court and to those to be appointed in the future. Persons 75 years of age were no longer qualified or eligible to be appointed to the Court. They were no longer qualified or eligible because Parliament had determined, as a matter of policy, that the duties of the office of judge of the Exchequer Court were best performed by individuals who had not yet attained the age of 75.

That was the case in 1927, and in our view, it remains the case to this day in relation to deputy judges of the Federal Court. [ 53 ] Implicit in this conclusion is the premise that the status of deputy judges under the Exchequer Court Act is relevant to the

interpretation of the deputy judge provision in the Federal Courts Act . We consider that to be a valid premise because the Federal Court is the successor of the Exchequer Court and the provisions with respect to deputy judges contained in the Exchequer Court Act were continued in its successor statutes, the Federal Court Act , S.C. 1970-71-72, c. 1, and the Federal Courts Act . [ 54 ] Further, the roles of deputy judges of the two courts are similar.

As is presently the case, a person could be appointed a deputy judge of the Exchequer Court for any reason deemed sufficient by its President (section 8, above), although deputy judges were not actually used in the Exchequer Court until 1942, and were used only sporadically after that time (see the reasons of the Chief Justice, at paragraph 114, citing Bushnell, The Federal Court of Canada: A History, 1875-1992 (Toronto: University of Toronto Press, 1997), at

pages 97, 130 and 193–194). [ 55 ] Finally, while the jurisdiction of the Exchequer Court and the Federal Court are different, those differences are not relevant to the question of Parliament’s intent concerning the age of deputy judges. [ 56 ] It remains only to consider whether any statutory amendments after 1927 compel the contrary conclusion. There is only one amendment to the Exchequer Court Act to be considered in that regard. In 1968, the Exchequer Court Act [R.S.C. 1952, c. 98] was amended in consequence of the enactment of the Divorce Act , S.C. 1967-68, c. 24, subsection 23(2).

A division of the Exchequer Court called the Divorce Division was created and barristers and advocates were no longer permitted to act as a deputy judge of the Exchequer Court. Deputy judges would thereafter be current or former judges of a superior or county court. In consequence, reference to the “qualifications for appointment” of a deputy judge was removed. Subsection 8(1) was amended to read as follows (emphasis added): Persons qualified to sit and act as judge 8.

(1) Subject to subsection (3), any judge of a superior court or county court in Canada, and any person who has held office as a judge of a superior court or county court in Canada, may, at the request of the President made with the approval of the Governor in Council, sit and act as a judge of the Exchequer Court and as a judge of the Divorce Division. [ 57 ] The question to be answered is whether the 1968 amendment to the Exchequer Court Act , particularly the deletion of any reference to the qualifications for appointment as a deputy judge, reflected a change in legislative intent concerning the age of deputy judges.

Did Parliament now intend that persons 75 years of age or older could act as a deputy judge? [ 58 ] In our view, it did not. The purpose of the 1968 amendment was to raise the level of qualification required to act as a deputy judge. Prior judicial experience was now required, and it was for this purpose that the wording of the deputy judge provision was altered.

There is no basis in the language of the statutory amendment or in the surrounding context on which to conclude that in 1968, Parliament intended to eliminate the age restriction upon deputy judges by way of a consequential amendment to the Exchequer Court Act made necessary by the enactment of the Divorce Act . We note parenthetically that at the time of the 1968 amendments to the Exchequer Court Act , the constitutional amendment imposing a mandatory retirement age on judges of the courts established under

section 96 of the Constitution Act, 1867 had been in effect for eight years. [ 59 ] The statutory provisions relating to deputy judges have remained substantially similar to the provisions as they read in 1968: see Exchequer Court Act , R.S.C. 1970, c. E-11,

section 9; Federal Court Act , R.S.C. 1970 (2nd Supp.), c. 10,

section 10; and Federal Courts Act ,

section 10, as amended by the Courts Administration Service Act , S.C. 2002, c. 8,

section 19. [ 60 ] This review of the legislative evolution and history of the deputy judge provisions shows that prior to the enactment of the Federal Court Act , Parliament did not intend that persons 75 years of age or older could be asked to act as deputy judges. ii. The current provisions of the Federal Courts Act [ 61 ] Having considered the legislative evolution of the deputy judge provisions, it is necessary to consider the current statutory context. [ 62 ] Subsection 10(1.1) of the Federal Courts Act is found within that portion of the Federal Courts Act entitled “The Judges”.

This heading encompasses sections 5 to 10.1 [as enacted by S.C. 2002, c. 8 , s. 19] of the Federal Courts Act . Sections 5 [as am. idem , s. 16 ] and 5.1 [as enacted by S.C. 2001, c. 41 , s. 144; 2002, c. 8, s. 16 ] deal with the constitution of the Federal Court and the Federal Court of Appeal. Sections 5.2 [as enacted idem ] and 5.3 deal with who may be appointed judge and who makes such appointments.

Section 5.4 [as enacted idem ; 2006, c. 11, s. 20 ] deals with the required number of judges from Quebec.

Section 6 [as am. by S.C. 2002, c. 8, s. 16; 2006, c. 11, s. 21] governs the rank and precedence of the courts and their judges, and what happens in the event of the absence or incapacity of either Chief Justice.

Section 7 [as am. by S.C. 2002, c. 8, s. 17; 2006, c. 11, s. 22(E)] deals with the residence requirement and the rota of judges.

Section 8 deals with the tenure of office.

Section 9 [as am. by S.C. 2002, c. 8, s. 19] deals with the oath of office and its administration.

Section 10 deals with deputy judges. Finally,

section 10.1 deals with the requirement of annual court meetings to discuss the rules and the administration of justice. [ 63 ] Subsection 8(2) is the only provision in this part of the Federal Courts Act which assists in ascertaining Parliament’s intent as to whether persons 75 years of age or older may serve as a deputy judge. [ 64 ] The introduction of the mandatory retirement provision in 1927 for the Supreme Court and the Exchequer Court reflected Parliament’s determination that, with age, judges may lose physical and mental efficiency so that, as a matter of policy, they should not carry out judicial duties after attaining 75 years of age. In 1960,

section 99 of the Constitution Act, 1867 was amended to provide a mandatory retirement age for the judges of the

section 96 courts. This was a further expression of the same policy, expressed through the U.K. Parliament. That policy is also reflected in other federal statutes, including the Supreme Court Act , R.S.C., 1985, c. S-26, subsection 9(2), and the Tax Court of Canada Act , R.S.C., 1985, c. T-2, subsection 7(2) [as am. by R.S.C., 1985 (3rd Supp.), c. 16, s. 8], and in the legislation relating to the territorial courts, established by Parliament because of its plenary legislative powers over the territories: Northwest Territories Act , R.S.C., 1985, c. N-27,

section 33; Nunavut Act , S.C. 1993, c. 28, subsection 31(3); Yukon Act , S.C. 2002, c. 7,

section 39. [ 65 ] We note that our colleague in dissent recognizes [at paragraph 129] that allowing persons to serve as deputy judges after becoming 75 is “an island of anomaly” in the midst of a “uniform sea of statutes governing courts across Canada specifying that judges must retire at age 75.” He explains [at paragraph 130] the anomaly by adopting the explanation proposed by the Chief Justice to the effect that the Federal Court “can experience unusual and temporary surges and overflows of work in particular areas of its unique jurisdiction, such as immigration.” This is said to shed light on the meaning of subsection 10(1.1) because if only those under 75 are permitted to serve as deputy judges, the pool of judges able to help the Federal Court with a temporary overflow of work might be insufficient.

The difficulty with this explanation for the anomaly is that it has no evidentiary foundation. There is no evidence that fluctuation in the volume of work is a phenomenon unique to the Federal Court. Nor is there any evidence about the number of judges

who choose to retire or become a supernumerary judge before age 75. While allowing retired judges to act as deputy judges after theyreach age 75 would increase the pool of judges, it is speculative to conclude that the smaller pool of judges, retired judges andsupernumerary judges under the age of 75 might be insufficient to deal with the volume of work. [66] Reading subsection 10(1.1) of the Federal Courts Act in its statutory context, it is our view that despite the broad language usedin subsection 10(1.1), it must be understood to be subject to the implied limitation that persons 75 years of age or older should not serveas deputy judges. The contrary

interpretation would violate the manifest legislative policy of Parliament that a person should not bepermitted to perform judicial duties after attaining the age of 75. It defies common sense to conclude that a judge of the Federal Court onturning 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 thesame judicial duties as a deputy judge.

It is equally illogical to conclude that a judge of the superior court of a province may cease to holdoffice on attaining age 75 and then assume judicial duties acting as a deputy judge of the Federal Court. [67] Before leaving the current statutory context, it is appropriate to consider certain aspects of the Federal Courts Act that mightsupport the conclusion reached by the Chief Justice. [68] First, there is no statutory provision that specifically states when the term of a deputy judge comes to an end, and no transitionalprovision that permits a deputy judge to work for a certain length of time after finishing a particular hearing.

It could be argued that theabsence of such provisions supports the inference that the entitlement of a deputy judge to act cannot be a function of age. We do notaccept this argument for the following reason. [69] The manner in which work is assigned to a deputy judge of the Federal Court is described by the Chief Justice as follows, atparagraph 137 of his reasons: Unlike the full time and supernumerary judges of the Federal Court, deputy judges no longer hold office and are no longer under thescheduling authority of the Chief Justice. The deputy judge must choose to accept the Chief Justice’s request to act.

The deputy judge isasked to accept assignments from the Chief Justice and may refuse to do so. Unlike the situation with judges who hold office, this is aconsensual process. As the assignment of work is “consensual”, a deputy judge has no right to receive any assignment, no right to act as a judge unless askedto do so by the Chief Justice of the Federal Court, no tenure, and no right to be paid except for the days worked. Given the ad hoc natureof the work of a deputy judge, we draw no inference from Parliament’s failure to legislate retirement provisions for deputy judges.

Theyhold no position from which they may retire. Similarly, the absence of a transitional provision is consistent with the view that a deputyjudge would not be given any assignment he or she could not complete before his or her 75th birthday. [70] It is also arguable that support for the Chief Justice’s conclusion may be found in Parliament’s response to Addy v. The Queen, (FC), [1985] 2 F.C. 452 (T.D.).

The ratio of Addy was that a provision of the 1970 predecessor to the Federal CourtsAct imposing a mandatory retirement age of 70 for judges of the Federal Court of Canada was unconstitutional in the face of subsection99(2) of the Constitution Act, 1867, enacted in 1960 to establish a mandatory retirement age of 75 for judges of the superior courts.Parliament later amended the Federal Court Act to raise the mandatory retirement age back to 75 for judges of the Federal Court ofCanada. That dealt with the ratio of Addy.

However, at page 464 of Addy, the judge observed in obiter that “[t]here is no limit in the Actas to the age of such a deputy judge.” Parliament did not amend the deputy judge provision to add an express age limitation despite thisobservation. [71] In our view, this non-action by Parliament cannot be taken as an indication that Parliament intended no age limit for theappointment of a deputy judge. The meaning of legislation is fixed at the time of enactment (Perka et al. v. The Queen, (SCC), [1984] 2 S.C.R. 232, at page 264; and Sullivan on the Construction of Statutes, 5th ed., at pages 146–147).

The comments madein Addy were made some 14 years after the enactment of the statutory provisions in issue in that case. The non-action of Parliament solong after the enactment of the Federal Court Act sheds little if any light on the intent of Parliament at the time of enactment. Further,subsection 45(4) of the

Interpretation Act, R.S.C., 1985, c. I-21, states as follows (emphasis added): 45. … Judicialconstructionnot adopted

(4) A re-enactment, revision, consolidation or amendment of an enactment shall not be deemed to be or to involve anadoption of the construction that has by judicial decision or otherwise been placed on the language used in the enactmentor on similar language. In light of this provision, the subsequent re-enactment of subsection 10(1.1) of the Federal Courts Act after the Addy decision cannot beequated with the adoption of the obiter comments in Addy about the age of deputy judges. c.

The purpose of the legislation [72] As explained above, part of the overall context in which a provision was enacted can be determined by inquiring into its purpose.The purpose of subsection 10(1.1) is to facilitate the administration of justice by allowing the Chief Justice to augment his or her judicialresources from time to time when an additional full-time position is not necessary or available. [73] The Chief Justice observed, at paragraph 108 of his reasons, that parliamentary debates in 1920 and 1967 contemplated“congestion of business” as a rationale for the appointment of a deputy judge.

As a general principle of statutory

interpretation,subsection 10(1.1) should be interpreted to promote this legislative purpose. However, there is no evidence before the Court that thispurpose requires that persons 75 years of age and older be permitted to act as a deputy judge. Thus, there is nothing to trump the policyconsiderations that led to the introduction of a mandatory retirement age for judges of all of the superior courts in Canada. d. Conclusion as to the proper

interpretation of subsection 10(1.1) of the Federal Courts Act [74] Having reviewed the text and the legislative evolution of subsection 10(1.1) of the Federal Courts Act, its statutory context and

its purpose, we respectfully disagree with the conclusion of the Chief Justice that a person 75 years of age or older may be requested toact as a deputy judge of the Federal Court, and find that Mr. Felipa is entitled to succeed on his motion. Subsection 99(2) of the Constitution Act, 1867 [75] Much of the argument in the Federal Court involved a debate on the scope of subsection 99(2) of the Constitution Act, 1867(quoted above), which stipulates that a “judge of a superior court” ceases to hold office upon attaining the age of 75 years. The issue waswhether a judge of the Federal Court, which is a court established under

section 101 of the Constitution Act, 1867, is a “judge of asuperior court” within the meaning of subsection 99(2).

Section 101 reads as follows: GeneralCourt ofAppeal,etc. 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution,Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additionalCourts for the better Administration of the Laws of Canada. [76] Given the basis upon which we have determined Mr. Felipa’s motion, it is not necessary for us to express an opinion on thispoint, and we decline to do so.

We reach this conclusion despite the concern, well expressed by our dissenting colleague, that Parliamentmay choose to amend subsection 10(1.1) of the Federal Courts Act to specifically permit the appointment of deputy judges over the ageof 75, in which case this issue may have to be argued anew. In our view, the speculative possibility of a future legislative changegenerally is not a good reason to attempt to resolve a difficult legal debate. [77] We note that the Chief Justice and our dissenting colleague consider this issue to be relevant to this case, and they haveboth answered it in the negative.

If that conclusion is correct, then by necessary implication the judges of all courts established undersection 101 of the Constitution Act, 1867 are also outside the scope of

section 96 (which provides that judges of the superior courts are tobe appointed by the Governor General), subsection 99(1) (which provides that judges of the superior courts hold office during goodbehaviour and are removable from office by the Governor General on address of the Senate and the House of Commons), and section100 (which requires the salaries, allowances and pensions of judges of the superior courts to be fixed and provided by Parliament). [78] In our view, the jurisprudence has not provided a conclusive answer to the question of whether sections 96, 99 and 100 apply tothe judges of courts established under

section 101. We consider it arguable that

section 101 judges are within the scope of sections 96, 99and 100 insofar as those provisions state the elements of the constitutional guarantees of judicial independence, even though theConstitution Act, 1867 is not the only source of those constitutional guarantees (see, for example, the English Act of Settlement, 1700 [12& 13 Will. III, c. 2], the Act of 1760 [Commissions and Salaries of Judges Act (U.K.), 1 Geo.

III, c. 23], and Reference re Remunerationof Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the ProvincialCourt of Prince Edward Island; R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Provincial Judges Assn. v. Manitoba (Ministerof Justice), (SCC), [1997] 3 S.C.R. 3). [79] We are not persuaded that recognizing judges of

section 101 courts as coming within the scope of sections 96, 99 and 100 of theConstitution Act, 1867 would be inconsistent with Attorney-General for Ontario and Others v. Attorney-General for Canada and Othersand Attorney-General for Quebec, (UK JCPC), [1947] A.C. 127 (P.C.), or necessarily imply that the jurisdiction ofsection 101 courts extends beyond what Parliament, by statute, has carved out of the general jurisdiction of the superior courts of theprovinces (as the successors to the English courts as they existed in 1867) and given to the

section 101 courts. Judicial independence [80] Mr. Felipa argues that the statutory provisions relating to deputy judges of the Federal Court, at least as they apply to those whohave previously retired from judicial office, do not afford them the degree of judicial independence required to respect Mr. Felipa’sconstitutional right to have his case heard by a fair and independent judiciary. [81] As we understand this argument, the focus of Mr.

Felipa’s concern relates to the remuneration payable to a deputy judge of theFederal Court who does not hold office as a judge of another superior court. (A deputy judge who currently holds office as a judge of asuperior court is entitled only to his or her statutory salary, and cannot receive further remuneration for acting as a deputy judge: seesubsection 10(4) of the Federal Courts Act, quoted above.) The workload of a deputy judge who has retired from office as a judge of asuperior court is entirely within the gift of the Chief Justice which means that his entitlement to the statutory per diem remuneration isalso within the gift of the Chief Justice.

Mr. Felipa argues that this gives rise to a reasonable apprehension of undue influence on the partof the Chief Justice. In our view, Mr. Felipa has raised a legitimate concern, but given the basis upon which we would dispose of thisappeal, we do not consider it necessary to determine whether it is sufficient to overcome the strong presumption of integrity enjoyed bythe Chief Justice and the deputy judges of the Federal Court. Costs [82] Mr. Felipa has asked for costs on a solicitor and client basis in this Court and in the Federal Court. In our view, Mr.

Felipa hasnot demonstrated conduct on the part of the respondent that would warrant an award of costs on a solicitor and client basis. However, heshould be awarded costs that will ensure that neither he nor his counsel is out of pocket for disbursements, and that his counsel isreasonably compensated for his services in this matter. This litigation could have been avoided by the appointment of a different judgewhen that was first requested in 2009. Whatever costs Mr.

Felipa and his counsel have borne in this matter have more to do with thepublic interest in legal certainty than any benefit that could have accrued to Mr. Felipa by pursuing this issue. Conclusion [83] For these reasons, we would allow this appeal with costs in this Court and the Federal Court fixed in the total sum of $25 000plus reasonable disbursements. We would set aside the order of the Chief Justice, allow Mr. Felipa’s motion, and declare that the ChiefJustice does not have the authority under subsection 10(1.1) of the Federal Courts Act to request that

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