Court closes judge retirement age loophole

Retired judges over the age of 75 can't preside over Federal Court cases, the Federal Court of Appeal has ruled.

Retired judges over the age of 75 can't preside over Federal Court cases, the Federal Court of Appeal has ruled.

Federal Court judges face mandatory retirement at 75 years old, but are sometimes called on to act as deputy judges after they've retired.

Deputy judges are current and past superior, county or district court judges called on by the Federal Court chief justice to act as Federal Court judges. They're paid per diems for the cases they hear and don't have offices or salaries.

The Federal Court's chief justice had ruled that, since deputy judges don't hold office, they aren't covered under the law that enforces retirement age.

But the Federal Court of Appeal has overturned that decision.

The court's deputy judges haven't been hearing cases since 2009 when the question arose.

In the discussion of the arguments heard in the case, Judges Karen Sharlow and Eleanor Dawson said the question wasn't about whether people 75 and older should exercise the powers of a Federal Court judge, or whether they were capable of doing so.

"Rather, the question before the Court is whether Parliament intended to give the Chief Justice the authority to request that a person over the statutorily mandated retirement age act as a judge of the Federal Court," they wrote.

"It defies common sense to conclude that a judge of the Federal Court on turning 75 years of age ceases to hold office and yet, at the request of the Chief Justice of the Federal Court, may continue to perform the same judicial duties as a deputy judge. It is equally illogical to conclude that a judge of the superior court of a province may cease to hold office on attaining age 75 and then assume judicial duties acting as a deputy judge of the Federal Court."

Judge David Stratas disagreed with the finding, writing that the "interpretive clues" show the law doesn't bar former judges over 75 years old from being deputy judges.

The question arose in an immigration case in which Luis Alberto Felipa requested judicial review of an Immigration and Refugee Board decision. Felipa didn't want his case heard by Louis Tannenbaum, the 77-year-old retired Quebec Superior Court judge who was assigned to it as a deputy Federal Court judge.

It's now up to Immigration Minister Jason Kenney to decide whether he wants to appeal the decision to the Supreme Court.