Law Times

LAW TIMES / JUNE 9, 2008 NEWS JPs can work until age 75, says Ontario judge A Law forcing retirement at 70 violates Charter BY ROBERT TODD Law Times peace in the province to retire at age 70 is a violation of equality rights guaranteed in the Charter of Rights and Freedoms. "While mandatory retirement n Ontario Superior Court judge has ruled that a law forcing justices of the analysis," says Cornish. She says the matter wasn't con- of the Peace of Ontario v. Ontario (Attorney General) involved the or- ganization that represents JPs and three former justices of the peace of the Ontario Court of Justice, Brenna Brown, Moreland Lynn, and Meena Nadkarni. Each of the three wanted to continue work- ing after reaching age 70 but were barred from doing so. In a 52-page judgment, of justices of the peace, as of other judicial officers in Ontario, is an acceptable feature of their secu- rity of tenure, the evidence is that the legislative objective can be ac- complished in a significantly less intrusive manner," said Justice George Strathy. The case Association of Justices sidered again until amendments to the Human Rights Code were brought in around the time man- datory retirement was abolished in December 2006. She says the government de- cided to keep the exceptions at that time for provincial court judges, case management mas- ters, masters, and justices of the peace. Other members of the ju- diciary have a mandatory retire- ment age of 75, says Cornish. The case also highlights the Mary Cornish says the decision indicates the Charter holds gov- ernments accountable to indi- vidual citizens. and the significance attached to that role by the legislature," he said. "It shows a desire to at- tract highly qualified applicants to the position and to provide a structure, compatible with their judicial independence, to sup- port the performance of their responsibilities." The Ministry of the Attorney Strathy ruled in favour of the ap- plicants and declared that parts of the Justices of the Peace Act violate s. 15 of the Charter. He ordered a "reading in" of provi- sions to be applied to the retire- ment of provincial court justices that states, "Retirement at age 65 with continuation in office to 75, subject to the annual ap- proval of the chief justice of the Ontario Court of Justice." Strathy said that raising the retirement age to 75 meets objec- tives in the Charter and Criminal Code, while also elevating the stature of justices of the peace. Raising the age to 75 will "as- sist in attracting qualified and accomplished individuals to the position and will allow them the option of retiring at age 65 or continuing in their roles, mak- ing useful and satisfying contri- butions to their bench and to society," he added. Strathy also noted the "sig- nificant evolution" of justices of the peace in Ontario over the past 40 years. "This evolution reflects the important role played by justices of the peace in the administra- tion of justice in the province General is not commenting on the case during the appeal period, a spokesman told Law Times. Mary Cornish of Cavalluzzo government's approach to the is- sue of discretion it holds in what it calls "line drawing" in terms of distinctions made between groups and individuals in public policy. "The court spends a lot of time in dealing with that argu- ment and rejecting it in this context, because the attorney general in argument was very clear to the court in saying it had no business to be evaluating [the mandatory retirement age] because the government got to make up its mind about that," says Cornish, adding that the justices of the peace accepted that a mandatory retirement age was necessary, but said that age should minimally impair their equality rights. The court agreed with the JPs' argument that, since a govern- ment expert said a retirement age for justices of the peace anywhere between 70 and 75 is acceptable, that 75 should be the age. Cornish says she hopes gov- ernment lawyers take heed of Strathy's analysis on the impor- tance of governments consider- ing Charter guarantees when making public policy. "That's supposed to be an on- going process," she says. "Here, we kept actually asking them to do it, but they didn't do it. But under the Charter, it's actually a proactive obligation they have. It's not supposed to be some- thing people have to keep re- minding them about." The next step in the matter is for the justices of the peace to work with the government and office of the chief justice in finding out which justices of the peace want to return to their ju- dicial duties, says Cornish. She doesn't have a precise estimate of how many JPs might come for- ward, but says, "It's certainly a pretty significant number." PAGE 3 LT MUSKOKA FRACTIONAL Hayes Shilton McIntyre & Cor- nish LLP, who represented JPs in the case, says the decision indicates that the Charter holds governments accountable to in- dividual citizens. "One of the things that trou- bled the court here was that the government in the period through the Human Rights Code reform and then through the Access to Justice Act reform didn't engage in any kind of equality analy- sis to determine whether or not the justices of the peace should remain at the age 70 retirement age, even though they were abol- ishing mandatory retirement for everybody else," says Cornish. The government chose age 70 as an appropriate retirement age for justices of the peace in the 1980s, says Cornish. A report on the jus- tice of the peace system at that time suggested that retirement shouldn't be mandated at age 80 or age 60, so age 70 was selected. "And that's it. Really, on the record, that's it — that is the only evidence of the government Untitled-2 1 THE SIDNEY B. LINDEN AWARD 2008 Advocate. Champion. Trailblazer. Does this describe an individual you know? Someone whose exceptional commitment to access to justice stands out above the crowd? 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