Maybe Marc Nadon should have played for the Detroit Red Wings!

Team Shin Kickers: Lawyers Paul Slansky (top) and Rocco Galati.

Good Day Readers:

Sounds as though should Goliathian shin kickers Messrs Galati and Slansky have their way Marc Nadon will leave with more than a pair of sore shins - nudge, nudge, wink, wink ... know what we mean, know what we mean? Right about now he's probably wishing he'd been "drafted" by the Detroit Red Wings.

Sincerely,
Clare L. Pieuk

Retirement lit looms for judge if Supreme Court of Canada job goes

By Cristin Schmitz
November 15, 2013 Issue

Justice Marc Nadon risks losing more than his job if his colleagues rule against his Supreme Court appointment.

Justice Nadon could be pushed into an involuntary early retirement from the bench, and lose the $800,000 plus he might have earned had he stayed put at the Federal Court of Appeal.

Legal experts say the federal government’s Reference Re s. 55 of the Supreme Court Act (Nadon Reference), to be heard by the Supreme Court on January 15, is not a slam-dunk win for the government. With compelling and novel arguments on both sides, the outcome remains uncertain as the complex case pushes the high court into uncharted legal and constitutional waters.

The political stakes are substantial for the Conservative government, which wants the Supreme Court to confirm Ottawa’s stance that Justice Nadon was eligible, as a Federal Court of Appeal judge, to be sworn in October 7 as a Quebec member of the Supreme Court. That contention is contested in court by the Quebec government and Toronto litigators Rocco Galati and Paul Slansky, who have asked the Federal Court to quash the appointment as illegal.

Should the feds lose, Justice Nadon, who has been twisting in the wind since his appointment was legally challenged, would likely pay an even higher professional price. He would likely be pushed into early retirement, and take a big financial hit.

For starters, should his appointment be deemed void ab initio, Justice Nadon will never have been a Supreme Court judge. That immediately reduces the 64-year-old judge’s future retirement income because his pension would be two-thirds of his $297,500 annual salary as a Federal Court of Appeal judge, instead of two-thirds of his current Supreme Court salary of $351,700 (an annual loss of $35,772).

Moreover, if Justice Nadon loses his Supreme Court post, sources say it is doubtful he can go back to being a Federal Court of Appeal supernumerary judge. (Both the Department of Justice, and the Office of the Commissioner for Federal Judicial Affairs declined to comment.)

Therefore, unless the government re-appointed Justice Nadon to a full-time position on an appeal or trial court (and unless he was willing to go back to full-time work on a lower court), he would have to retire from the bench. As a retiree, his income would be one-third less than his $297,500 annual salary as a Federal Court of Appeal supernumerary — an annual loss of $99,167.

Multiplied by the eight years he had left to work as a supernumerary judge, Justice Nadon would get $793,336 (plus indexing for inflation over eight years) less than had he remained at the Federal Court of Appeal.

That would amount to a substantial financial sacrifice for a promotion that turned into an involuntary early retirement.

Meanwhile, the judicial limbo Justice Nadon has found himself in since his appointment was contested in Federal Court October 7 has turned into complete exile from the top court. On November 1, its Deputy Registrar Mary McFadyen wrote counsel on the Nadon Reference informing them that because of the “questions concerning the legality of Justice Nadon’s appointment” that Ottawa placed before the court October 22, he will no longer occupy his Supreme Court office and “will not have contact with the members of the court.” This is so the judges “are able to deliberate on the questions referred to the Court in a manner free from any conflict of interest” and so that “justice is both done, and is seen to be done, in an independent and impartial manner.”

The court offered no comment regarding what Justice Nadon has been doing in his office since it announced October 8 that, in light of the Federal Court challenge, he would not participate “for the time being” in matters before the court.

The Deputy Registrar’s letter goes on to assure counsel on the Reference, that “the Court confirms that none of its members has discussed the merits of the challenge or the Reference with Justice Nadon.”

Justice Nadon’s appointment, which was controversial on its merits within the legal community, is under legal and political attack on several fronts.

In Federal Court, Galati and Slansky are vigorously resisting Ottawa’s bid to stay their Federal Court action pending the outcome of the Nadon Reference.

Slated for argument November 15 in Toronto, the Attorney General of Canada’s temporary stay motion contends that the two questions referred by the federal government to the Supreme Court October 22 “specifically address” the issues raised by Galati and Slansky — who, among other things, seek a declaration that a Federal Court of Appeal judge is not eligible to be appointed to one of Quebec’s three Supreme Court seats, and that doing so amounts to changing the Supreme Court’s composition and thus requires a constitutional amendment. In court documents filed October 28, the federal government argues that it “would waste judicial resources and risks conflicting legal decisions” to continue with the Federal Court proceedings. But Galati and Slansky argue the Nadon Reference fails to confront the questions raised by their judicial review application, which seeks to quash Justice Nadon’s appointment.

If Ottawa’s request for a stay is rejected after it is argued November 15, Federal Court Justice Russell Zinn told counsel at a recent case conference that the Federal Court will “move heaven and earth” to expedite the case to a hearing on the merits in January or February.

On the political front, all parties of the National Assembly of Québec unanimously passed a motion October 29 affirming that, in line with s. 6 of the Supreme Court Act, Quebec’s three seats on the top court must be filled by judges from the Quebec Superior or Court of Appeal or by a current member of the Quebec bar.

The legislature said this protects Quebec’s distinctiveness and civil law and cannot be altered without Quebec consent. (At the time of Justice Nadon’s Supreme Court appointment, he had been a Federal Court and Federal Court of Appeal judge in Ottawa for 20 years, and before that practised law in Montreal for nearly two decades).

The province, which is challenging Justice Nadon’s appointment by intervening in both the Federal and Supreme Court cases, condemned the federal government’s “unilateralism” in failing to choose Justice Morris Fish’s replacement from the list of candidates it gave Ottawa.

The official Opposition in the House of Commons followed Quebec’s motion with its own, as NDP justice critic Françoise Boivin called for unanimous consent to her motion.

Boivin told The Lawyers Weekly the NDP expects the Conservative government will limit debate on the declaratory provisions it tabled in the Commons last month. Those proposed amendments to the Supreme Court Act purport to require courts to interpret the act as permitting a person who was at any time an advocate of at least 10 years standing at the Quebec Bar to fill a Quebec vacancy on the court.

“I think that the Prime Minister and his Minister of Justice have created a big mess that first was avoidable, and second will now have an impact for a long while on the image of [the Supreme Court], that great institution and important pillar of our democracy,” Boivin said.

She suggested “the court was right to try to put some distance between itself and the contested judge since they will have to decide on his nomination.

“Was it done soon enough? We will see how it affects people’s perception.”