Law Times

PAGE 10 FOCUS March 8, 2010 • Law TiMes Galati takes deputy judges ruling to appeal court Lawyer seeks to overturn decision allowing older judges to hear matters BY ROBERT TODD Law Times A appeal Toronto immigration lawyer is continuing his battle over the accept- able age of Federal Court deputy judges, many of whom mainly handle immigration cases. Rocco Galati has fi led an to the Federal Court of Appeal in Felipa v. Canada (Citizenship and Immigration) in which he calls the ruling by Chief Justice Allan Lutfy "il- logical" and "incoherent." "With all due respect to the chief justice's reasons and analysis, with the greatest of respect, it falls off the edge of a fl at world," says Galati, who also calls the decision "results- driven" and posits that the dep- uty judges have been assigned primarily to immigration law matters due to the sheer volume of such cases before the Fed- eral Court. In his decision, Lutfy said retirement mandatory doesn't apply to former judges who con- tinue to work after turning 75. "Simply put, deputy judges do not hold offi ce as judges of the Federal Court and cannot, therefore, cease to hold an offi ce to which they have not been ap- pointed," wrote the chief judge. Th at runs counter to Galati's contention that the court's policy of allowing such judges to hear matters breaches his client Luis Felipa's "constitutional rights to rule of law, constitutionalism, and federalism; embarrassingly invites and brings the adminis- tration of justice into disrepute by tainting and breaching the applicant's right(s) to a fair and independent judiciary." Th e matter caused disar- ray for many immigration law 'It falls off the edge of a flat world,' Rocco Galati says of the Federal Court ruling in Felipa. matters when it fi rst erupted in August 2009, with at least 11 Federal Court hearings set to go before deputy judges adjourned in one week alone. It began when Galati sent a letter to Lutfy complaining that deputy judge Louis Tannenbaum — 77 years old at the time — had no jurisdiction to hear Felipa's case. Galati noted that s. 8(2) of the Federal Courts Act, com- bined with the constitutional requirement under s. 99(2) of the Constitution Act, prevents a superior court judge from sit- ting beyond age 75. He asked to adjourn the case until another judge was available to hear it. Th e federal Justice Depart- ment has embraced the deci- sion, however, maintaining in an e-mail to Law Times that the age limit in the Federal Courts Act doesn't apply to deputy judges because they don't hold offi ce. "Deputy judges act as judges of the Federal Court and are as- signed cases on an ad hoc basis at the request of the chief jus- tice," wrote department spokes- woman Carole Saindon. "Th e chief justice's ability to appoint deputy judges helps to ensure the eff ective and effi cient func- tioning of the court." Barry Strayer, who was ap- pointed 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 Federal Court deputy judge in 2005. Now retired, Strayer told Law Times last August why he believes it's best to allow deputy judges to hear matters beyond age 75. "Lawyers and their clients are well served by having good, ex- perienced people available to get their cases dealt with rather than waiting for a long time because there's a shortage of judges," he said. "I think it's a valid system, and I'm not aware of any prob- lems with it, and nobody for years has ever questioned it. Now we have a spate of these cases in question." Regardless, Galati expects the An easy-to-use electronic service that keeps you up-to-date with the latest decisions in IMMIGRATION LAW immigration law. Each week subscribers receive an e-mail bulletin summarizing recent court decisions in the immigration law area. 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And while the case has clear relevance to immigration law matters, Galati says the under- lying issues hit at the heart of the administration of justice. "If the law and the Constitu- tion don't apply to judges, how can judges apply the law and Constitution?" he asks. LT For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. CA102 (LT 1-2x4).indd 1 www.lawtimesnews.com CA102 on pages 13-15 3/3/10 10:55:18 AM

• Cover
• Thinking Globally
• Bankruptcy Woes
• Focus On Immigration Law