T-837-85
George Addy (Plaintiff)
v.
The Queen in right of Canada (Defendant)
Trial Division, Grant D.J.-Toronto, July 30 and
August 28, 1985.
Constitutional law - Judicature - Federal Court judges
- Tenure - Federal Court superior court within Constitution
Act s. 99(2) - Tenure of Federal Court judges should be same
as that of superior court judges - Inconsistent provision of
Federal Court Act of no force and effect - Constitution Act,
1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No.
51 (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1), ss. 96, 97, 98, 99 (as am.
by Constitution Act, 1960, 9 Eliz. II, c. 2 (U.K.) [R.S.C. 1970,
Appendix II, No. 36] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982, Item 25)), 100,
101 - Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), ss. 52(1), 58 - The Supreme and Exche
quer Court Act, 38 Vict., c. 11, s. 58 - Exchequer Court Act,
R.S.C. 1906, c. 140, s. 10 (as am. by S.C. 1926-27, c. 30, s. 1)
- Supreme Court Act, R.S.C. 1906, c. 139, s. 9 (as am. by
S.C. 1926-27, c. 38, s. 2) - Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, ss. 3, 8(2), 10, 17, 20, 21, 22, 24, 26(1), 28
- Judges Act, R.S.C. 1970, c. J-1 (as am. by R.S.C. 1970
(2nd Supp.), c. 10, s. 64(2)), ss. 2, 23(1)(a),(d) - Interpretation
Act, R.S.C. 1970, c. I-23 (as am. by R.S.C. 1970 (2nd Supp.),
c. 10, s. 64(2)), s. 28.
Constitutional law - Charter of Rights - Equality rights
- Mandatory retirement age - Federal Court judges
appointed after June 1, 1971 discriminated against as com
pared with those previously appointed - Imposition of earlier
mandatory retirement age not reasonable limit demonstrably
justified in free and democratic society - Offending provision
of Federal Court Act of no force and effect - Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. 1, 15 - Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 3, 8(2), 10, 17, 20, 21, 22, 24, 26(1), 28, 60(5).
Judges and courts - Federal Court judges - Mandatory
retirement age for Federal Court judges appointed after June
1, 1971 - Term Judges" in Federal Court Act s. 60(5)
including judges of any other court holding office on June 1,
1971 - Federal Court superior court within Constitution Act
s. 99(2) and Federal Court judges superior court judges within
said provision - Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, ss. 3, 8(2), 10, 17, 20, 21, 22, 24, 26(1), 28, 60(5)
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 51 (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982, Item 1), s.
99(2) (as am. by Constitution Act, 1960, 9 Eliz. II, c. 2 (U.K.)
(R.S.C. 1970, Appendix II, No. 36] (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 25).
The plaintiff, born in 1915, was appointed judge of the
Supreme Court of Ontario in 1967, and judge of the Federal
Court of Canada in 1973.
The mandatory retirement age for judges of the Federal
Court, set by subsection 8(2) of the Federal Court Act, is 70
years.
The issue is whether that provision validly establishes a
mandatory retirement age which is different from and less
favourable than that prescribed for superior court judges by
section 99 of the Constitution Act, 1867.
Held, the action should be allowed and an order issue
declaring subsection 8(2) of no force and effect in that it is
inconsistent with subsection 99(2) of the Constitution Act,
1867 and with section 15 of the Charter, and declaring that
subsection 8(2) does not require the plaintiff to retire before
the age of 75 years.
The Federal Court, like the Supreme Court of Canada, is a
superior court within the meaning of subsection 99(2) of the
Constitution Act, 1867. This is clear from a reading of section
3 of the Federal Court Act, and of the definition of "superior
court" in the Judges Act and the Interpretation Act. Further
more, the Federal Court jurisdiction includes powers and func
tions comparable to those of provincial superior courts. No
constitutional or statutory provision precludes a judge of the
Federal Court from being called a judge of a superior court,
nor is there anything in the Constitution to indicate that the
word "superior" is used other than as a reference to a supervi
sory court as opposed to an inferior court without supervisory
powers. Section 99, which provides for the tenure of judges of
superior courts, is general. It applies generically to all superior
court judges, whether they be appointed to a superior court of a
province or to one created under section 101. Subsection 8(2)
of the Federal Court Act is therefore invalid by virtue of
subsection 52(1) of the Constitution Act, 1982 because it is
inconsistent with subsection 99(2).
Subsection 8(2) also infringes the plaintiffs equality rights
guaranteed by section 15 of the Charter. As acknowledged by
the defendant, there is discrimination against Federal Court
judges appointed after June 1, 1971, as compared to those
appointed before that date. The distinction is not based on the
court to which they belong. The fact that effect could not be
given to section 15 until three years after the coming into force
of the Constitution Act, 1982 is no impediment to its applica
tion in the present case.
It is difficult to consider the imposition of age 70 as con
stituting a reasonable limit within the meaning of section 1 of
the Charter, particularly when no such limit is imposed on
deputy judges and when the plaintiff had a tenure of office five
years longer with the Supreme Court of Ontario when he was
appointed to the Federal Court.
Furthermore, the word "judge" in subsection 60(5) of the
Federal Court Act covers a judge of any other court who held
office on June 1, 1971, was eligible to be appointed and was
appointed to the Federal Court thereafter.
Subsection 8(2) therefore infringes upon the plaintiff's right
to hold his office until the age of 75 like the judges of the Court
who held office on June 1, 1971. It is therefore inconsistent
with section 15 in the above respect, and to that extent, is of no
force or effect.
Subsection 8(2) therefore does not require the plaintiff to
retire until the age of 75.
CASES JUDICIALLY CONSIDERED
APPLIED:
Commonwealth of Puerto Rico v. Hernandez, [1975] 1
S.C.R. 228; Lees v. The Queen, [ 1974] 1 F.C. 605 (T.D.);
Ex p. Quevillon (1974), 20 C.C.C. (2d) 555 (F.C.T.D.);
R. v. Livingston, [1977] 1 F.C. 368 (T.D.); Hunter et al.
v. Southam Inc., [1984] 2 S.C.R. 145; 11 D.L.R. (4th)
641; R. v. Big M Drug Mart Ltd. et al., [1985] 1 S.C.R.
295; [1985] 3 W.W.R. 481; Law Society of Upper
Canada v. Skapinker, [1984] 1 S.C.R. 357; 9 D.L.R.
(4th) 161.
DISTINGUISHED:
Beauregard (The Hon. Mr. Justice Marc) v. R., [1981] 2
F.C. 543 (T.D.).
REFERRED TO:
Minister of Indian Affairs and Northern Development v.
Ranville et al., [1982] 2 S.C.R. 518.
COUNSEL:
Gordon F. Henderson, Q.C. and Emilio Bina-
vince for plaintiff.
Eric A. Bowie and Paul Betournay for
defendant.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
GRANT D.J.: The plaintiff was appointed a
judge of the Supreme Court of Ontario on the 21st
day of September, 1967, and served in that capaci
ty until the 17th day of September, 1973, when he
was appointed a judge of the Federal Court of
Canada. He has continued to act in such latter
capacity until the present time.
He was born on the 28th day of September,
1915, and will reach the age of seventy (70) years
on September 28th, 1985.
The Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.) [[R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)] provided
for the appointment and tenure of judges and the
establishment of federal courts. The following sec
tions thereof are relevant hereto:
96. The Governor General shall appoint the Judges of the
Superior, District, and County Courts in each Province, except
those of the Courts of Probate in Nova Scotia and New
Brunswick.
99. 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.
Such original section 99 of the Act was amend
ed by the Constitution Act, 1960, 9 Eliz. II, c. 2
(U.K.) [R.S.C. 1970, Appendix II, No. 36] (as
am. by Canada Act 1982, 1982, c. 11 (U.K.),
Schedule to the Constitution Act, 1982 Item 25)
which came into effect on March 1, 1961. The
amendment consisted of adding immediately
before the wording set out above, the following:
Subject to subsection (2) of this section,
Such amended section is found later herein.
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from Time to Time provide for the Constitu
tion, Maintenance, and Organization of a General Court of
Appeal for Canada, and for the Establishment of any addition
al Courts for the better Administration of the Laws of Canada.
(The emphasis are mine.)
The Supreme Court of Canada and the Exche
quer Court were established by The Supreme and
Exchequer Court Act, 38 Vict., c. 11 in 1875.
Section 58 thereof contained in part the following
description of the Exchequer Court's jurisdiction:
58.... the said Court shall have exclusive original jurisdic
tion in all cases in which demand shall be made or relief sought
in respect of any matter which might in England be the subject
of a suit or action in the Court of Exchequer on its revenue side
against the Crown, or any officer of the Crown.
For some time after the creation of the Supreme
Court of Canada and the Exchequer Court in
1875, the judges of the two Courts were one and
the same.
There was then no retirement age for judges of
those Courts and they held office for life subject to
removal by the Governor General on address of
the Senate and House of Commons as provided in
such section 99. By chapter 30, of the 1926-27
Statutes of Canada, section 10 of the Exchequer
Court Act [R.S.C. 1906, c. 140] was amended by
adding thereto:
1....
"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."
By chapter 38 of 17 George V [S.C. 1926-27, c.
38], section 9 of the Supreme Court Act [R.S.C.
1906, c. 139] was amended by adding the same
words thereto. By the Constitution Act, 1960,
section 99 was amended to read:
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.
(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.
This section came into force on March 1, 1961
based on the United Kingdom statute, 9 Eliz. II,
c. 2.
The Federal Court Act was enacted in 1970
(R.S.C. 1970 (2nd Supp.), c. 10). It continued the
Exchequer Court jurisdiction under the new name
and continued to be a superior court of record.
Subsection 8(2) thereof reads:
8....
(2) A judge of the Court ceases to hold office upon attaining
the age of seventy years. [The emphasis is mine.]
60....
(5) In respect of judges who held office on the 1st day of
June 1971, subsection 8(2) shall read as follows:
"(2) A judge of the Court ceases to hold office upon
attaining the age of seventy-five years."
and, in respect of judges appointed to the Court on or after the
1st day of June 1971, paragraph 23(1)(a) of the Judges Act
shall be read as though the age referred to therein were
"sixty-five years" instead of "seventy years" and paragraph
23(1)(d) shall be read as though the age referred to therein
were "seventy years" instead of "seventy-five years".
The latter part of the above section relates to the
amount of "the Judge's annuity".
The plaintiff submits that such subsection 8(2)
of the Federal Court Act is inconsistent with the
Constitution of Canada and therefore of no force
and effect pursuant to section 52 of the Constitu
tion Act, 1982 [Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] and that it infringes or denies
the plaintiff of his right under section 15 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] to the
extent that it establishes a mandatory retirement
age of 70 years which is different from and less
favourable than the constitutionally prescribed
mandatory retirement age of 75 years prescribed
for superior court judges by section 99 of the
Constitution Act, 1867 as amended in 1960. Sub
section 52(1) of such Act [Constitution Act, 1982]
reads:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
The plaintiff does not herein challenge the
power of Parliament to establish a retirement age
for judges provided it is done consistently with
section 15 of the Charter of Rights. He submits
that Parliament cannot, consistently with such sec
tion, establish an earlier or less favourable retire
ment age for Federal Court judges from the retire
ment age recognized for other Canadian superior
court judges. Neither does he raise any issue as to
mandatory retirement.
At the time of the passing of The British North
America Act, 1867, justices of the superior courts
in the provinces exercised a general jurisdiction
therein and were successors of the original King's
justices of the central courts of England. They
were considered, as far as original jurisdiction was
concerned, to be the primary authority in the
exercise of judicial power in Canada.
It is submitted by counsel for the Crown that
the term "superior court" as used in sections 96
and 100 of such Act refers only to such provincial
superior courts and that the Supreme Court of
Canada and the Federal Court derive their exist
ence, role and jurisdiction entirely from the federal
statutes incorporating them and that accordingly
they and the justices thereof do not enjoy the same
constitutional status as to tenure of office as the
judges of the superior courts of the provinces. He
further submits that section 101 of such Act which
authorized Parliament to provide for the constitu
tion, maintenance and organization of a general
court of appeal for Canada and for the establish
ment of any additional courts for the better
administration of the laws of Canada, permitted
Parliament to fix the tenure of the judges appoint
ed to such newly constituted courts free from the
limitation of section 99 (supra). In support thereof
counsel refers to the dictum of Addy J. in Beaure-
gard (The Hon. Mr. Justice Marc) v. R., [1981] 2
F.C. 543 (T.D.), at pages 551-552 where it is
stated:
... Justices of the Federal Court of Canada as well as those of
the Supreme Court of Canada derive their existence, role and
jurisdiction entirely from federal statute and do not enjoy the
same constitutional status as Justices of the Superior Courts of
the Provinces, who exercise a general jurisdiction throughout
the provincial realms and who are constitutionally the true
successors to the original King's Justices of the Central Courts
of England.
I am of opinion that such words are used therein
to draw attention to the distinction in the jurisdic
tion of such courts rather than the tenure of office
of their judges. The word "superior" is used as
opposed to "inferior" courts who do not have
supervisory powers.
Section 3 of the Federal Court Act describes it
as "an additional court for the better administra
tion of the laws of Canada and shall continue to be
a superior court of record having civil and criminal
jurisdiction."
The Judges Act, R.S.C. 1970, c. J-1 (as am. by
R.S.C. 1970 (2nd Supp.), c. 10, s. 64(2)), in it's
interpretation section states:
2....
"superior court" includes the Supreme Court of Canada and
the Fedfal Court of Canada.
The Interpretation Act, R.S.C. 1970, c. I-23 (as
am. by R.S.C. 1970 (2nd Supp.), c. 10, s. 64(2))
defines "superior court":
28....
(a) in the Province of Ontario ... the Supreme Court of the
Province,
and includes the Supreme Court of Canada and the Federal
Court of Canada.
In Commonwealth of Puerto Ricco v. Her-
nandez, [1975] 1 S.C.R. 228, at pages 232-233,
Pigeon J. in dealing with the question of jurisdic
tion pointed out that:
... the Federal Court [was not] a "superior court" within the
same meaning of that expression as applied to the superior
courts of the provinces, that is courts having jurisdiction in all
cases not excluded from their authority or, as Ritchie C.J. put
it in Valin v. Langlois (1879), 3 S.C.R. 1 at p. 19, "Courts,
bound to take cognizance of and execute all laws ...". The
Exchequer Court was not a "superior court" in that sense....
In view of all this, it appears to me that the Federal Court is a
"superior court" in the sense of a court having supervisory
jurisdiction. This is a meaning often used, as appears from the
numerous authorities reviewed in Re Macdonald, [ 1930] 2
D.L.R. 177 [[1930] 1 W.W.R. 242, 38 Man. L.R. 446] and it
is significant that such jurisdiction is conferred by the Act.
The above case of Commonwealth of Puerto
Ricco v. Hernandez was overruled in Minister of
Indian Affairs and Northern Development v. Ran -
ville et al., [1982] 2 S.C.R. 518, on another point
but no doubt was cast in such judgment upon the
correctness of the above passage of Pigeon J.
In Lees v. The Queen, [1974] 1 F.C. 605 (T.D.),
Heald J. stated at page 608:
The Federal Court of Canada and the Saskatchewan Court of
Queen's Bench are both superior courts of record and the
orders of such courts cannot be questioned collaterally.
Also see Ex p. Quevillon (1974), 20 C.C.C. (2d)
555 (F.C.T.D.), at page 556 and R. v. Livingston,
[1977] 1 F.C. 368 (T.D.), at page 370.
By section 17 of the Act [Federal Court Act]
the Trial Division of the Federal Court has origi
nal jurisdiction in all cases where relief is claimed
against the Crown and, except where otherwise
provided, has exclusive jurisdiction in all such
cases. By section 20 it has concurrent jurisdiction
in the cases there described. The Federal Court of
Appeal as well has exclusive jurisdiction in all
appeals from the Trial Division subject to appeal
to the Supreme Court of Canada. The functions of
judges in the Federal Court appears to be equal to
those of the superior court judges of the provinces.
In an article by Professor W. R. Lederman,
"The Independence of the Judiciary" (1956) 34
Can. Bar Rev. 769 and 1139, at page 1176, he
states his reasoning on this subject as follows:
In other words, my reasoning is that the "notwithstanding"
clause in section 101 performs the same office there that it does
earlier in the opening words of section 91, that is, it supports
specified categories of federal power against any verbally
inconsistent category of provincial power and, having done that,
is functus officio. Hence my view that the term "superior
court" in sections 99 and 100 includes any federal superior
courts constituted under section 101. If this is correct, then the
judges of federal superior courts are in the same position
respecting salary, tenure, retirement and removal as judges of
the provincial superior courts, and for the same constitutional
reasons.
In Canadian Constitutional Law, 4th Ed. Rev.
1975, page 762, Laskin, later Laskin C.J. disa
greed with such opinion of Lederman, stating:
It has been suggested by Lederman, The Independence of the
Judiciary, [ ... supra] that the limitations of ss. 96 to 100 of
the B.N.A. Act may properly be imported into s. 101 so as to
restrict federal courts in the same way; but there is no tenable
ground of history or text or context to support the suggestion.
The portion of Lederman's article that is criti
cized by Laskin in the above quotation is the
suggestion that the limitations of sections 96 to
100 of the B.N.A. Act may properly be imported
into section 101 so as to restrict federal courts in
the same way. It bears no reference to the question
of tenure of federal appointed judges.
A superior court as distinguished from an inferi
or court possesses broad supervisory jurisdiction
over inferior tribunals and keeps them within the
bounds of their authority by removing their pro
ceedings to be determined in such superior court or
by prohibiting their progress in the inferior
tribunal.
3 Blackstone's Commentaries (1768) 42-46.
The Federal Court jurisdiction includes powers
and functions comparable to those exercised by the
provincial superior courts. Examples of this are
found in the following sections of the Federal
Court Act:
17 — Crown litigation
21 — Citizenship appeals
22 — Navigation and shipping, maritime jurisdiction
24 — Income and estate tax appeals
26(1) —General original jurisdiction
28 — Review of decisions of federal boards,
commission or other tribunal
In addition special statutes provide such Court
with supervisory jurisdiction such as the Access to
Information Act, S.C. 1980-81-82-83, c. 111,
Schedule I, the Privacy Act, S.C. 1980-81-82-83,
c. 111, Schedule II.
There is nothing in the Constitution Act or in
any other Act that precludes a judge of the Feder
al Court from being called a judge of a superior
court nor is their anything in section 99 or any
other parts of such Act to indicate that the word
"superior" is used other than as a reference to a
supervisory court as opposed to an inferior court
that does not have supervisory powers—ex. the
Judges Act (supra). One could not be heard to say
that the Supreme Court of Canada is not a supe
rior court simply because it was established by
statute under the powers contained in section 101
of the Constitution Act.
For some time after the creation of the Supreme
Court of Canada and the Exchequer Court in 1875
the judges of the two courts were one and the
same.
Counsel for the Crown submits that the expres
sion "superior courts" as it appears in such section
99, was meant to refer back only to the earlier
words "Judges of the Superior, District and
County Courts in each Province". I have some
doubt as to this as section 99 makes no reference
to district and county court judges. This is under
standable because such courts did not exercise a
superintending and controlling power over other
courts as did the superior court and it was not so
important that judges thereof should be endowed
with tenure for life.
Subsection 99(2) should be read in the light that
a court of appeal for all Canada, and additional
courts, were authorized by section 101 of the same
Act. Parliament would be aware that such court of
appeal, at least, would be a superior court in the
ordinary meaning of that word. If it was meant
that the judges of such court were to be excluded
from such tenure of office, one would expect such
fact to be clearly set forth in such Act. If the
additional courts, for whose establishment provi
sion was thereby made, were as well not to be
classed as superior courts the same conclusion may
be drawn. The words of subsection 99(2), "wheth-
er appointed before or after the coming into force
of this section" is some indication that such tenure
was to be bestowed on all those who qualified as
judges of a superior court without regard as to
when that court was established. It is to be noted
that section 101 does not deal with the tenure of
office of judges appointed to courts, but only with
the constitution, maintenance and organization of
a general court of appeal and the establishment of
additional courts. One has to refer back to subsec
tion 99(2) for authority as to the tenure of judges
appointed thereto.
Section 96 which authorizes the appointment of
judges of the superior, district and county courts in
each province is intended to be specific to the
provinces. Subsection 99(1) which provides for the
tenure of judges of the superior courts is general.
It applies generically to all superior court judges
no matter whether the judge has been appointed a
superior court judge of a province or to a superior
court created under section 101.
Some authors refer to the statute creating the
Supreme Court of Canada as an ordinary federal
statute but in my opinion it is more than that
because authority therefore is found in such sec
tion 101 of the B.N.A. Act, 1867.
Professor Hogg in his second edition of the
Constitutional Law of Canada, page 166, con
cludes that because such Court owes it's existence
to statute it does not require constitutional amend
ment to change it, or, for that matter to repeal it's
existence. That fact however does not prevent it
from being a superior court within the meaning of
such subsection 99(2). While the above consider-
ation of such author refers to the Supreme Court
of Canada it is equally applicable to the Exche
quer Court and it's successor, the Federal Court.
Counsel for the Crown correctly stated that one
of the chief reasons that tenure of office was
granted to judges of the superior courts in the
provinces was that they were the constitutional
protection for the citizen from improper proceed
ings taken against him by the state or inferior
tribunals. On the establishment of the Exchequer
Court, that body was granted sole jurisdiction in
many of such cases and this may be a valid reason
for the continuation of such tenure of office to
judges of that Court and the Supreme Court of
Canada.
For the above reasons I am of opinion that the
Supreme Court of Canada and the Federal Court
of Canada are superior courts within the meaning
of subsection 99(2) of The British North America
Act, 1867 and that the judges of both such courts
are and have been since the establishment of such
courts superior court judges. It follows that subsec
tion 8(2) of the Federal Court Act requiring a
judge of that Court to cease holding office therein
on attaining the age of 70 is inconsistent with
subsection 99(2) of the B.N.A. Act which provides
that a superior court judge shall cease to hold
office at the age of 75 years. Such subsection 8(2)
of the Federal Court Act is invalid for that reason
by virtue of subsection 52(1) of the Constitution
Act, 1982.
The plaintiff further submits that subsection
8(2) of the Federal Court Act is invalid in that it
is inconsistent with section 15 of the Canadian
Charter of Rights and Freedoms. Section 15 of
the Charter provides:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or
activity that has as its object the amelioration of conditions of
disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
Alteration of the right to exercise the office of
superior court judges in Canada as a result of the
various applicable retirement sections in the vari
ous appropriate acts, occurs as follows:
(a) Supreme Court of Canada judges; age 75 pursuant to
subsection 9(2) of the Supreme Court Act.
(b) Supreme court judges of the provinces; age 75, as a result
of the application of subsection 99(2) of the Constitution
Act, 1867, as amended.
(c) Federal Court judges:
(i) for former Exchequer Court judges; age 75 pursuant
to subsection 60(5) of the Federal Court Act,
(ii) all other judges; age 70, pursuant to subsection 8(2)
of the Federal Court Act.
Counsel for the plaintiff has also referred to
section 10 of the Federal Court Act which provides
that:
10. (1) ... 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 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 the Court and
shall be referred to as a deputy judge of the Court.
There is no limit in the Act as to the age of such
a deputy judge. This fact is cited as a discrimina
tion against the judges of all the courts. However,
a person called to act as a deputy judge has no
right to act as a judge until invited to do so by the
Chief Justice of the Federal Court. He may accept
such invitation or decline it. If he chooses to
preside over the case, he ceases to be a deputy
judge when he completes that assignment. He
therefore has no tenure of office and his participa
tion in trials in the Federal Court is not compa
rable to that of Federal Court judges nor relevant
to the issues herein.
The changes in time as to the tenure of superior
court judges is as follows: from 1875 until 1927,
judges of both the Supreme Court of Canada and
those of the Exchequer Court held office during
good behaviour. From such last mentioned year
until June 1971, the retirement age in both such
courts was 75 years; thereafter judges of the
Supreme Court of Canada and those judges of the
Federal Court who had been appointed on or
before June 1, 1971, 75 years; Federal Court
judges appointed after such last mentioned date
cease to hold office at 70 years; prior to March 1,
1961, judges of the Supreme Court of Ontario as
well as those of the other provincial superior courts
were not subject to any retiring age: since then
such judges cease to hold office at age 75.
The plaintiff submits that the establishment of a
mandatory retirement age of 75 for Supreme
Court of Canada judges as well as Exchequer
Court judges by the 1927 statutes (supra) was
redundant in that from the time of the establish
ment of such courts in 1875 by chapter 11 such
judges were governed so far as retirement is con
cerned by subsection 99(2) of the Constitution Act
as judges of a superior court.
The transitional provisions of the Federal Court
Act provide that Exchequer Court judges should
continue as Federal Court judges during good
behaviour until the age of 75.
Such discrimination against Federal Court
judges appointed subsequent to June 1, 1971 has
prevailed since that date.
Section 15 of the Charter of Rights (supra)
became effective on April 17, 1982. Such section
has reference to equality of a class and in this case
without discrimination based on age.
In Hunter et al. v. Southam Inc., [ 1984] 2
S.C.R. 145; 11 D.L.R. (4th) 641, Dickson J. [as he
then was], at page 156 S.C.R.; 650 D.L.R. stated:
The Canadian Charter of Rights and Freedoms is a purposive
document. Its purpose is to guarantee and to protect, within the
limits of reason, the enjoyment of the rights and freedoms it
enshrines. It is intended to constrain governmental action
inconsistent with those rights and freedoms; it is not in itself an
authorization for governmental action.
Again in R. v. Big M Drug Mart Ltd. et al.,
[1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481, at
page 344 S.C.R.; 524 W.W.R., Dickson J.
expresses the same thought in the following words:
The meaning of a right or freedom guaranteed by the Charter
was to be ascertained by an analysis of the purpose of such a
guarantee; it was to be understood, in other words, in the light
of the interests it was meant to protect.
See also Law Society of Upper Canada v. Ska-
pinker, [1984] 1 S.C.R. 357; 9 D.L.R. (4th) 161,
Estey J. at pages 366 S.C.R.; 168 D.L.R. where he
stated:
The Canadian Bill of Rights is, of course, in form, the same as
any other statute of Parliament. It was designed and adopted to
perform a more fundamental role than ordinary statutes in this
country. It is, however, not a part of the Constitution of the
country. It stands, perhaps, somewhere between a statute and a
constitutional instrument. Nevertheless, it attracted the princi
ples of interpretation developed by the courts in the constitu
tional process of interpreting and applying the Constitution
itself.
In discussing herein the validity of subsection
8(2) of the Federal Court Act, I have come to the
conclusion that judges of the Supreme Court of
Canada and the Federal Court judges are superior
judges within the meaning of subsection 99(2) of
the B.N.A. Act as are judges of the provincial
superior courts. It does not necessarily follow that
the plaintiff and other Federal Court judges are
included as members of a class with Supreme
Court of Canada and provincial supreme court
judges or either of them, entitled to equality with
them under such section 15.
The Federal Court does not possess, as do the
superior courts of the provinces, the general
common law supervisory powers over inferior
courts and certain tribunals or any powers that are
not provided by its own establishing statute or
other federal statutes which give it jurisdiction and
authority in certain other areas. The Supreme
Court of Canada is essentially a court of appeal.
The practice in the superior provincial courts is
different in many respects than that of the Federal
Court. There is no provision for trial by jury in the
latter Court.
I agree that every judge of the Federal Court is
equal with all other members of that Court within
the meaning of section 15 of the Charter and that
all judges of the Supreme Court of Canada are
equal among themselves but not with members of
such other two courts. In determining whether one
has been discriminated against within the meaning
of such section 15 the comparison must be made
between persons with the same class.
In deciding whether equality rights guaranteed
by the section have been breached against a
person, one must compare the treatment com
plained of by the aggrieved person with that of a
group of persons who substantially belong to the
same class and are similarly circumstanced.
In the statement of claim the plaintiff alleged an
inconsistency between subsection 8(2) of the Fed
eral Court Act and section 15 of the Charter. The
defendant asked for particulars. The plaintiff
replied "Section 8(2) of the Federal Court Act
infringes or denies the right of the plaintiff under
section 15 of the Canadian Charter of Rights in
that it establishes a mandatory retirement age of
seventy-five years for judges of other superior
courts pursuant to section 99 of the Constitution
Act." Mr. Henderson's written brief at page 13,
paragraph 32 indicates that he was bringing into
issue the discrimination as to the different age of
retirement as between Federal Court judges
appointed before June 1, 1971 and those appointed
thereafter. Mr. Bowie made no objection to such
issue being argued and considered and delivered
his oral reply thereto. I therefore feel free to
consider such issue as if it were originally pleaded.
I am therefore of opinion that in considering
whether or not a discrimination exists against the
plaintiff in respect of his tenure of office. I am
confined to a consideration of the age of retire
ment fixed for those Federal Court judges holding
office on June 1, 1971, as opposed to those
appointed thereafter.
The defendant urges that the challenge to the
legislation in question is an allegation of discrimi
nation against the courts rather than one based on
the age of the judge. It is alleged that the distinc
tion as to the right of tenure between a judge of
the Federal Court and one of the Supreme Court
of Ontario is not one of age but rather a distinction
based on the court to which they belong. I cannot
accept such submission because here it is the judge
who has been aggrieved and it is he who is seeking
the relief. As well, section 15 deals with the right
of the individual to whom is given the right to
equal protection and equal benefit of the law. Mr.
Bowie acknowledges at page 105 of the argument
that a discrimination does exist as between those
judges of such courts who were appointed on or
before June 1, 1971 and those appointed
thereafter.
The Constitution Act, 1982 and the Charter of
Rights came into force and effect when proclaimed
on the 17th day of April, 1982, by virtue of section
58 of the Constitution Act, 1982, with the excep
tion of section 15 of the Charter in respect of
which subsection 32(2) provides:
32....
(2) Notwithstanding subsection (1), section 15 shall not have
effect until three years after this section comes into force.
Counsel submits that if the distinction could be
removed through section 15, effect could not be
given thereto until 3 years after the coming into
force of the Constitution Act, 1982, and that the
reasonable conclusion to be drawn therefrom is
that it was not meant to cover such a situation.
The answer to that appears to be that the Consti
tution of Canada is the supreme law of Canada
and that any law that is inconsistent therewith is,
to the extent of such inconsistency, of no force and
effect. It follows that subsection 8(2) of the Feder
al Court Act to the extent that it is inconsistent
with subsection 99(2) of the Constitution is invalid
by virtue of section 52. Such subsection 8(2) is
equally invalid by virtue of it's inconsistency with
section 52.
It is also submitted that the exception to subsec
tion 8(2) found at subsection 60(5) in favor of
judges who held office on June 1, 1971, was
reasonable because, at the time of accepting an
appointment to such Court, the statute gave them
tenure of office until the age of 75 years.
Section 1 of the Constitution Act, 1982, guaran
tees the rights set out therein "subject only to such
reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society." I am asked to find that such exception,
which counsel have termed a grandfather clause, is
a reasonable limit although no evidence has been
adduced on such situation.
I find it difficult to assess the imposition of such
age limit of 70 as a reasonable limit particularly
when there is no such limit imposed as against
deputy judges and at the time of his appointment
to the Federal Court the plaintiff then enjoyed an
office as a justice of the Supreme Court of Ontario
which guaranteed him a retirement age of 75
years. The exception contained in subsection 60(5)
could readily have been extended to cover judges
who had previously served in other superior courts
immediately prior to their appointment to the Fed
eral Court without discrimination to such judge by
the addition of the words, "in either the Exchequer
Court of Canada or any other Superior Court in
Canada" immediately following the figure 1971 so
that the section would read:
60...
(5) In respect of judges who held office on the 1st day of
June 1971, in either the Exchequer Court of Canada or any
other Superior Court in Canada, subsection 8(2) shall be read
as follows:
"(2) A judge of the Court ceases to hold office upon attain
ing the age of seventy-five years."
The plaintiff had been a judge of the Supreme
Court of Ontario from September 21, 1967 until
his transfer to the Federal Court on September 17,
1973. To terminate the plaintiff's right to continue
as a judge of the Federal Court until age 75 would
deprive him of 5 years of the tenure of office he
had enjoyed at the time of his transfer to the
Federal Court. Such a result could not be recog
nized as a "reasonable limit ... presribed by law
as can be demonstrably justified in a free and
democratic society" within the meaning of section
1 of the Charter.
It is of some significance that throughout the
Act, when reference is made to a judge of the
Federal Court, the term usually used is "a judge of
the Court" or "a judge of the Exchequer Court"
but in subsection 60(5) the description of the judge
so referred to is not so limited as it reads: "In
respect of judges who held office on the 1st day of
June 1971". This reference is a proper description
of the plaintiff. In subsection 8(2) the term used
there is a "judge of the Court" but that has
reference to his status and rights of tenure after he
becomes "a judge of the Court".
In such subsection the word "judge" is used in a
broader sense sufficient to cover a judge of any
other court who held office on June 1, 1971, was
eligible to be appointed [and was appointed] to the
Federal Court thereafter. Such interpretation is
reasonable, warranted and more than probably
correct because Parliament would not intend to
deprive a judge who had a federal statutory tenure
of office to the age of 75 in the Supreme Court of
Ontario of the last 5 years of that right to preside
as a federal judge simply because he had been
transferred to the Federal Court. One would
expect Parliament to treat such a judge the same
as the judges of the Exchequer Court who came to
the Federal Court on June 1, 1971 already clothed
with a 75 year of age tenure of office. Subsection
8(2) can have reference therefore only to those
appointees who were not judges until appointed to
the Federal Court after June 1, 1971, and so came
without a previous tenure of office.
It follows that the plaintiff has been discriminat
ed against by virtue of such subsection 8(2) in that
it infringes upon and denies him of his right to
hold the office of a judge of the Federal Court
until he is 75 years of age, as are those judges
thereof who held such office on June 1, 1971 and
requires him to cease holding such office when he
attains the age of 70 on September 28, 1985. Such
section is therefore inconsistent with the provisions
of such section 15 in the above respect and to that
extent is of no force or effect.
I therefore am of opinion that subsection 8(2) of
the Federal Court Act does not require the plain
tiff to retire from his office of a judge of the
Federal Court of Canada on attaining the age of
70 years but that he still is entitled to such tenure
of office until he becomes 75 years of age.
The plaintiff is therefore entitled to judgment
against the defendant, as follows:
(a) an order declaring that subsection 8(2) of
the Federal Court Act, requiring the plain
tiff to cease to hold office upon attaining
the age of seventy years on September 28,
1985 is inconsistent with the Constitution
of Canada and accordingly, pursuant to
subsection 52(1) of the Constitution Act,
1867, of no force and effect in that:
(i) subsection 8(2) is inconsistent with the
provisions of subsection 99(2) of the
Constitution Act, 1867;
(ii) subsection 8(2) is inconsistent with
section 15 of the Canadian Charter of
Rights and Freedoms;
(b) an order declaring that, upon a proper
interpretation, subsection 8(2) does not
require the plaintiff to retire from his office
as a judge of the Federal Court of Canada
before attaining the age of seventy-five
years.
(c) his costs of this action to be taxed and
payable to him by the defendant.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.