A Canadian Charter of Rights and Freedoms challenge coming?

Judges' ages threaten court cases
Two already adjourned over law limiting service on bench past 75, raising fears of a crippled system

August 20, 2009

Nicholas Keung Immigration REPORTER

Lawyer Rocco Galati talks to the media after leaving the court house in this 2006 file photo. (NATHAN DENETTE/THE CANADIAN PRESS FILE PHOTO)

The Federal Court was scrambling yesterday to adjourn and reassign cases scheduled to be heard by a 77-year-old deputy judge after a Toronto lawyer challenged his age.

By law, federal judges cannot serve on the bench past 75, an argument raised by constitutional lawyer Rocco Galati this week involving two separate immigration cases presided over by Deputy Judge Louis Tannenbaum.

The two cases were adjourned on Tuesday, immediately prompting a flurry of emails and calls in legal circles and casting doubt on the validity of numerous other federal court decisions made by other sitting judges over 75. At least 11 of Tannenbaum's cases have been adjourned and rescheduled this week.

Currently, six of the seven federal deputy judges – all retired judges on pension but appointed and paid per diem for their wealth of experience – are older than 75. Both the Federal Courts Act and the Judges Act disallow a superior justice to sit past age 75.

Ontario scrapped mandatory retirement in 2006, but provincial court judges still must retire by age 75.

"This has the potential to cripple the court because the court has already been stretched to the limit in its ability to hear cases," said Toronto immigration lawyer Guidy Mamann. "At 75, it allows them (the judges) a graceful exit. It is a question of energy and competencies to hear all these cases."

This latest turn of events not only affects immigration and refugee cases but all federal court matters such as trademark litigations and lawsuits against the federal governments, said Mamann, adding that this precedent could open the door for counsel to challenge the authority of any judge past the statutory retirement age in upcoming hearings or previous decisions.

But the over-age judges have their champions.

Age discrimination is the final frontier, said lawyer Susan Eng, vice-president of advocacy for the Canadian Association of Retired Persons (CARP), which opposes mandatory retirement at any age.

"You should judge people based on their competency," she said. "It's legitimate to ask people to have cognitive ability when they are doing a job that requires absolute clarity. But you judge on the basis of the individual competency, not on some arbitrary age."

Age alone can't predict how individuals perform, said Dr. Michael Gordon, one of Canada's longest practising geriatricians, with 38 years of experience.

"We trade off our ability to manipulate knowledge with our experience," said the 68-year-old doctor, who works at Toronto's Baycrest centre for geriatric health and teaches medicine at the University of Toronto. "Obviously, experience goes a long way."

There is no age limit for practising medicine, Gordon noted. However, when doctors turn 70, they are assessed for competency every five years, a practice that could be adopted for judges, he suggested.

According to the Federal Court, in 2008, the deputy judges carried about 5 per cent of the overall caseload.

On Tuesday, Galati wrote to Chief Justice Allan Lutfy requesting a new judge be assigned because Tannenbaum "would not be vested with the requisite jurisdiction" to hear the case.

"Many people wouldn't know whether their judges were over 75 or not. They don't go and check their bios," Galati said yesterday.

In an order issued yesterday, Lutfy instructed both the applicant and respondent, Citizenship and Immigration Canada, to file motions and a notice of constitutional questions, if any, concerning the jurisdiction of a deputy judge over the age of 75. The case will be heard September 30.

With files from Laurie Monsebraaten

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Note: The Constitutional Questions Act is the basis for challenges to the Canadian Charter of Rights and Freedoms.