Law Times

September 7, 2009

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PAGE 2 NEWS sepTember 7, 2009 • Law Times es aged 75 years or older to adjudicate matters, despite seemingly contradictory legislation and case law. Toronto lawyer Rocco Galati has issued a notice of motion on behalf of his client, Luis Felipa, that asks for a ruling that such judges are not "statutorily" or "constitu- tionally" permitted to do so. Shoshana Green, an partner at immi- gration boutique Green and Spiegel, says, "We've had some decisions with some of these judges that make you wonder if they should be hearing cases in the fi rst place." She calls the appointment of deputy judges "a makeshift answer" to court backlogs. "I think they can make some accom- modation to get the judges in, or just make more appointments in there," she says when asked what a sounder fi x might be. Th e issue came to a head late last month after Galati discovered Federal Court Dep- uty Judge Louis Tannenbaum, who is 77, was scheduled to hear Felipa's case. Th e rev- Bar wants formal ruling on deputy judges over 75 T BY ROBERT TODD Law Times he Federal Court has been asked to issue a formal ruling on its practice of allowing deputy judg- elation that, in fact, six of the court's seven deputy judges also were aged 75 or older halted at least 11 hearings. Th e Department of Justice has de- clined to comment while the matter is before the courts. In the notice of motion, Galati seeks a ruling that the Federal Courts Act, Judg- es Act, and Constitution Act preclude judges aged 75 or older from adjudicat- ing matters at the Federal Court. He also seeks a ruling deeming the practice of the Federal Court chief jus- tice "requesting" such judges and the governor-in-council "approving" the requests ultra vires. Th e most strongly worded aspect of the notice seeks a ruling that the prac- tice of approving such judges, despite the statutory and constitutional provi- sions and case law, constitutes "a breach of the applicant's constitutional rights to rule of law, constitutionalism, and federal- ism; embarrassingly invites and brings the administration of justice into disrepute by tainting and breaching the applicant's constitutional right(s) to a fair and inde- pendent judiciary." Th e Federal Court's chief adminis- trator, Raymond Guenette, outlined the court's stance on the jurisdiction of judges aged 75 and older in a July letter, which responded to similar questions raised in a separate case. Guenette said the Federal Court has relied on s. 10 of the Federal Courts Act to appoint deputy judges for over three decades. He said the Federal Court is a statutory court constituted under s. 101 of the Con- stitution Act, and the appointment and tenure of its judges and deputy judges is governed by the Federal Courts Act, not by s. 96 and s. 99 of the Constitution Act. Th e Federal Courts Act permits any- one serving or previously appointed as a superior court judge to act as a deputy judge of the Federal Court. In 2008, the court's deputy judges took on about fi ve per cent of its overall work- load — equivalent to the work of two full- time judges, according to the court. Barry Strayer, who was appointed a judge of the Federal Court of Appeal and as chief justice of the Court Martial Ap- peal Court of Canada in 1994, was named a deputy judge of the Federal Court in 2005. He has since retired, but tells Law Times he heard two or three cases as a deputy judge beyond the age of 75. Strayer suggests the questions about the legal age of the Federal Court judges are "very debatable," and turn on "certain as- sumptions" made by Parliament. "Lawyers and their clients are well- served by having good, experienced people available to get their cases dealt with, rather than waiting for a long time because there's a shortage of judges," says Strayer. "I think it's a valid system, and I'm not aware of any problems with it, and nobody for years has ever questioned it. Now we have a spate of these cases in question." Galati has said the issue "starts, and is restricted to, and ends with the constitu- tional prohibition under s. 99(2) of the Constitution Act." He added, "If the Constitution doesn't apply to judges, I don't know who it ap- plies to. For me, it's a constitutional is- sue. I don't care about the other issues. It's not an issue of competence; it's not an issue of the general philosophical no- tion of where and when we should set retirement age." Federal Court Chief Justice Allan Lutfy set the next hearing date in Felipa v. Minis- try of Citizenship and Immigration for Sept. 30, before Tannenbaum. LT Judge orders firm to produce documents BY ROBERT TODD Law Times Starting from $62.50 per month More value for your money! Cases that you can't find anywhere else can be found in BestCase, a new web-based research service from Canada Law Book, containing: • Comprehensive collection of reported and unreported decisions dating back to 1898 and including: • Canadian Criminal Cases – since 1898 • Dominion Law Reports – since 1912 • Labour Arbitration Cases – since 1948 ... plus others! • Renowned case summaries • Case citator eREPORTS included at no extra charge ... continuing legal education delivered to your desktop! BestCase subscribers can now receive our eREPORTS – electronic versions of "paper parts" of our law reports. Emailed to you, the eREPORTS link from the subject index to the full reported judgment (including headnote). 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LaCalamita issued a state- ment of claim last year alleg- ing sex discrimination and seeking $12 million from the fi rm after she was fi red in 2006 and off ered $200,000 in severance. McCarthys has denied the claims. Th e fi rm claims LaCalamita failed to meet performance standards. Nothing has yet been proven in court. Brott ordered McCarthys to produce information re- garding performance reviews of lawyers, called between 1992 and 1997, who submit- ted applications for partner- ship; compensation for all of its lawyers from 1999 to 2006; billing rates and bill- able/non-billable hours; and other information, such as a 2005 report on the fi rm's "environment for women lawyers." LaCalamita claim is based 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. www.lawtimesnews.com Bestcase-reduce costs (LT 1-2x4).indd 1 LT0715 6/10/09 10:43:32 AM on Rule 5.04 of the Rules of Professional Conduct. 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