Felipa v. Canada (Minister of Citizenship and Immigration), 2010 FC 89

• Court: Federal Court (Canada)
• Case Date: October 28, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2010 FC 89;(2010), 357 F.T.R. 253 (FC)

Felipa v. Can. (M.C.I.) (2010), 357 F.T.R. 253 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. JA.032

Luis Alberto Felipa (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1086-09; 2010 FC 89)

Indexed As: Felipa v. Canada (Minister of Citizenship and Immigration)

Federal Court

Lutfy, C.J.

January 26, 2010.

Summary:

An applicant in judicial review proceedings involving immigration issues, requested an adjournment on the ground that a person who was beyond 75 years of age could not act as a deputy judge of the Federal Court. An adjournment was granted and the applicant pursued a motion raising two principal questions: "a. Is the Federal Court a superior court within the meaning of s. 99(2) of the Constitution Act, 1867? and b. Does s. 8(2) of the Federal Courts Act preclude a person over 75 years of age from acting as a deputy judge of the Federal Court?" Section 99(2) of the Constitution Act, 1867, provided that a judge of a superior court ceased to hold office upon reaching age 75. Section 8(2) of the Federal Courts Act provided that a judge of the Federal Court of Appeal or the Federal Court ceased to hold office on becoming 75 years old.

The Federal Court held that the Federal Court was not a superior court within the meaning of s. 99(2). Further, s. 8(2) did not preclude a person over age 75 from acting as a deputy judge of the Federal Court.

Constitutional Law - Topic 5.5

General - Unwritten constitutional principles - Separation of powers, judicial independence and judicial impartiality - Section 10(1.1) of the Federal Courts Act provided that "Subject to subsection (3), any judge of a superior, county or district court in Canada, and any person who has held office as a judge of a superior, county or district court in Canada, may, at the request of the Chief Justice of the Federal Court made with the approval of the Governor in Council, act as a judge of the Federal Court, and while so acting has all the powers of a judge of that court and shall be referred to as a deputy judge of that court" - The Federal Court rejected an argument that s. 10(1.1) offended the doctrine of separation of powers - See paragraphs 165 to 168.

Constitutional Law - Topic 1005

Interpretation of Constitution Act - General principles - Principle of flexibility - Living tree doctrine - The Federal Court, in interpreting s. 99(2) of the Constitution Act, 1867, agreed that the Constitution was a "'... a living tree capable of growth and expansion within its natural limits' and should be interpreted accordingly" - However, the court stated that the living tree doctrine had "its natural limits" - As noted by the Supreme Court of Canada in Reference Re Provincial Electoral Boundaries (1991): "'The doctrine of the constitution as a living tree mandates that narrow technical approaches are to be eschewed (...). It also suggests that the past plays a critical but non-exclusive role in determining the content of the rights and freedoms granted by the Charter. The tree is rooted in past and present institutions, but must be capable of growth to meet the future.'" - See paragraphs 25 and 26.

Constitutional Law - Topic 1014

Interpretation of Constitution Act - General principles - History - The Federal Court reviewed the history of the judicature provisions of the Constitution Act, 1867 (i.e., ss. 96, 99, 100 and 101) - See paragraphs 26 to 99.

Constitutional Law - Topic 8601

Judicial power - Appointment of judges - General - The Federal Court stated that "When ss. 96 to 100 [i.e., the Judicature provisions of the Constitution Act, 1867] are read in the historical context of 1867, keeping in mind the legislative intent of the framers, there is a strong indication that they were not intended to apply to any court constituted by Parliament in the exercise of its jurisdiction pursuant to s. 101" - See paragraph 29.

Constitutional Law - Topic 8601

Judicial power - Appointment of judges - General - [See Constitutional Law - Topic 1014 ].

Constitutional Law - Topic 8602.1

Judicial power - Appointment of judges - Federal court judges - [See first Constitutional Law - Topic 8601 and Courts - Topic 480 ].

Constitutional Law - Topic 8651

Judges (incl. justices of the peace) - General - [See first Constitutional Law - Topic 8601] .

Constitutional Law - Topic 8653

Judges (incl. justices of the peace) - Superior Court - What constitutes - Section 99(2) of the Constitution Act, 1867, provided that "A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age" - At issue was whether the Federal Court was a superior court within the meaning of s. 99(2) - The Federal Court held that s. 99(2) did not apply to the Federal Court of Canada because that court was not a "superior court" within the meaning of s. 99(2) of the Constitution Act, 1867 - See paragraphs 12 to 98.

Constitutional Law - Topic 8656

Judges (incl. justices of the peace) - Tenure and retirement - [See Courts - Topic 480 , Constitutional Law - Topic 8653 and second Constitutional Law - Topic 8702 ].

Constitutional Law - Topic 8702

Federal power to establish courts - Scope of power - Section 101 of the Constitution Act, 1867, provided that "The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada" - The Federal Court stated that "the words 'notwithstanding anything in this Act' are clear and unambiguous and are not limited by reference to other sections of the Constitution Act, 1867. Thus, when Parliament creates additional courts for the better administration of the laws of Canada, it is not constrained by any section of the Constitution Act, 1867, including ss. 92(14), 96 to 100 and 129. The framers intended to give Parliament the power to create a general court of appeal and additional courts as long as the purpose of the additional courts was 'the better administration of the laws of Canada' ... The words 'notwithstanding anything in this Act' were intended to give Parliament plenary legislative authority in relation to the establishment, maintenance and organization of federal courts. This broad power is limited by the words 'for the better administration of the laws of Canada' and the principles of judicial independence but not by s. 99" - See paragraphs 31 to 34.

Constitutional Law - Topic 8702

Federal power to establish courts - Scope of power - The Federal Court held that courts created by Parliament under s. 101 of the Constitution Act, 1867, were not "superior courts" within the meaning of s. 99 of the Act, respecting removal and retirement - The court stated that the presumption against legislative redundancy supported that conclusion - The court stated that "Section 99 of the Constitution Act, 1867, and no other legislation, provides for the removal and the mandatory retirement of provincial superior court judges. A different situation was created for s. 101 judges. Provisions concerning the removal and age requirements for judges of the federal courts were enacted by Parliament in separate legislation" - See paragraphs 35 to 42.

Constitutional Law - Topic 8702

Federal power to establish courts - Scope of power - The Federal Court held that s. 99 of the Constitution Act, 1867, respecting removal and retirement of superior court judges did not apply to federal courts established under s. 101 of the Constitution Act, 1867 - The court stated that "The debates and legislative history surrounding the age of retirement of judges of the Exchequer Court and the Federal Court of Canada in 1927 and 1970, as well as the debates during the introduction of mandatory retirement at 75 for provincial superior courts in 1960, provide further support for the conclusion that s. 99 does not apply to federal courts established under s. 101 of the Constitution Act, 1867" - See paragraphs 43 to 54.

Constitutional Law - Topic 8702

Federal power to establish courts - Scope of power - [See first Constitutional Law - Topic 8601 ].

Constitutional Law - Topic 8712

Federal power to establish courts - Federal Court of Canada (incl. trial and appeal divisions) - [See first, second and third Constitutional Law - Topic 8702 ].

Courts - Topic 480

Judges - Removal and retirement - Retirement age - Section 8(2) of the Federal Courts Act provided that "A judge of the Federal Court of Appeal or the Federal Court ceases to hold office on becoming 75 years old" - At issue was whether s. 8(2) precluded a person over age 75 from acting as a deputy judge of the Federal Court - The Federal Court held that s. 8(2) did not apply to deputy judges because a deputy judge did not "hold office" as a judge of the Federal Court (i.e., s. 8(2) did not preclude a person over 75 years of age from acting as a deputy judge of the Federal Court) - The court held also that s. 99(2) of the Constitution Act, 1867, which provided that superior court judges ceased to hold office at age 75, did not apply to the Federal Court, because the Federal Court was not a "superior court" within the meaning of s. 99(2) - The court opined that even if it was wrong in its conclusion, and the Federal Court was a "superior court" within the meaning of s. 99(2), that constitutional provision would not prevent a Chief Justice from asking a former judge, over 75, to act as a deputy judge - The court stated that "Simply put, deputy judges do not hold office as judges of the Federal Court and cannot, therefore, cease to hold an office to which they have not been appointed" - The power to ask a retired superior court judge to act as a deputy judge was not constrained by the mandatory retirement age set out in s. 8(2) or by the wording of s. 10(1.1) of the Federal Courts Act (i.e., the eligibility requirements for deputy judges) - There was no conflict between s. 8(2) and s. 10(1.1) - See paragraphs 100 to 160.

Statutes - Topic 1641

Interpretation - Extrinsic aids - Legislative history - General - [See third Constitutional Law - Topic 8702 ].

Statutes - Topic 1644

Interpretation - Extrinsic aids - Legislative history - Legislative debates - [See third Constitutional Law - Topic 8702 ].

Statutes - Topic 2266

Interpretation - Presumptions and rules in aid - Against legislative redundancy - [See second Constitutional Law - Topic 8702 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - The Federal Court, quoting Rizzo v. Rizzo Shoes Ltd. (SCC 1998), stated that "it is now a clear rule of statutory interpretation that '... the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament'" - See paragraph 23.

Statutes - Topic 6148

Operation and effect - Effect on earlier statutes - Amendments - Consolidated statute v. original Act - The Federal Court queried whether the English and French versions of ss. 8(2) (retirement age) and 10(1.1) (eligibility requirements for deputy judges) of the Federal Courts Act might have different meanings as a result of amendments made to them - The Court stated "The amendments to the French version of s. 8(2), if they do give rise to a meaning different from the plain meaning of the English versions, were made as part of the 1985 statute revision process and cannot be taken to change the meaning or application of the law. In the event of an inconsistency between a consolidated statute and the original Act, the original statute prevails to the extent of the inconsistency. Thus, the current French version of s. 8(2) which uses the language of 'l'âge limite pour l'exercice de la charge de juge' is to be interpreted in a manner consistent with the former French version of that provision which reflects the intent of Parliament. The pre-1985 French version of s. 8(2) provided: '[u]n juge de la Cour cesse d'occuper son poste ...' mirroring the current English version which has remained substantially unchanged for over 70 years ... Indeed, the unchanging nature of the English version over such an extended period of time, and its similarity to s. 99(2), would, in any event, lead me to conclude that the English version of the provision more clearly expresses the intent of Parliament. I would apply the same rationale and principles of statutory interpretation to the language differences in s. 10(1.1) ..." - See paragraphs 150 to 156.

Words and Phrases

Notwithstanding anything in this Act - The Federal Court discussed the meaning of this phrase as used in s. 101 of the Constitution Act, 1867 - See paragraphs 31 to 34.

Cases Noticed:

Ship Woron, Re, [1927] A.C. 906 (P.C.), refd to. [para. 19, footnote 5].

Ship Yuri Maru, Re - see Ship Woron, Re.

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 23].

Edwards v. Canada (Attorney General), [1930] A.C. 124 (P.C.), refd to. [para. 24].

Reference Re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158; 127 N.R. 1; 94 Sask.R. 161, refd to. [para. 25].

Ontario (Attorney General) v. Canada (Attorney General), [1947] A.C. 127 (P.C.), refd to. [para. 32].

Tsartlip Indian Band et al. v. Pacific Salmon Foundation et al., [1990] 1 F.C. 609; 30 F.T.R. 247 (T.D.), refd to. [para. 33, footnote 7].

Nanaimo Community Hotel Ltd. v. Board of Referees (1945), 61 B.C.R. 354 (C.A.), refd to. [para. 33, footnote 7].

Richardson (James) & Sons Ltd. v. Minister of National Revenue (1980), 6 Man.R.(2d) 132 (Q.B.), refd to. [para. 33, footnote 7].

R. v. Reddick, [1996] C.M.A.J. No. 9, refd to. [para. 33, footnote 7].

London v. Cox (1867), L.R. 2 H.L. 239, refd to. [para. 59, footnote 23].

Lees v. Canada, [1974] 1 F.C. 605, refd to. [para. 59, footnote 23].

MacDonald Estate, Re, [1930] 2 D.L.R. 177 (Man. C.A.), refd to. [para. 60].

Puerto Rico (Commonwealth) v. Hernandez, [1975] 1 S.C.R. 228, refd to. [para. 61].

Three Rivers Boatman Ltd. v. Canada Labour Relations Board, [1969] S.C.R. 607, refd to. [para. 71, footnote 38].

Continental Oil Co. v. Commissioner of Patents, [1934] Ex. C.R. 118, refd to. [para. 72, footnote 40].

Gamache v. Jones, [1967] 1 Ex. C.R. 308, refd to. [para. 72, footnote 40].

R. v. Bank of Nova Scotia (1885), 11 S.C.R. 1, refd to. [para. 78, footnote 46].

Hodge v. Béique et al., 33 Que. S.C. 90, refd to. [para. 78, footnote 46].

Canadian Broadcasting Corp. and Knapp v. Québec Police Commission, [1979] 2 S.C.R. 618; 28 N.R. 541, refd to. [para. 79, footnote 47].

R. v. Blais (E.L.J.) (2003), 308 N.R. 371; 180 Man.R.(2d) 3; 310 W.A.C. 3; 2003 SCC 44, refd to. [para. 85].

International Minerals & Chemical Corp. v. Potash Co. of America, [1965] S.C.R. 3, refd to. [para. 87, footnote 50].

Addy v. Canada, [1985] 2 F.C. 452, not folld. [para. 92].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 95].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1, refd to. [para. 97, footnote 52].

Sarvanis v. Canada (2002), 284 N.R. 263; 2002 SCC 28, refd to. [para. 151, footnote 68].

Flota Cubana de Pesca (Cuban Fishing Fleet) et al. v. Canada (Minister of Citizenship and Immigration) (1997), 221 N.R. 356 (F.C.A.), refd to. [para. 151, footnote 68].

Beothuk Data Systems Ltd., Seawatch Division v. Dean et al. (1997), 218 N.R. 321 (F.C.A.), refd to. [para. 151, footnote 68].

Goodswimmer et al. v. Canada (Minister of Indian Affairs and Northern Development) et al. (1995), 180 N.R. 184 (F.C.A.), refd to. [para. 151; footnote 68].

League for Human Rights of B'nai Brith Canada v. Canada et al. (2009), 349 F.T.R. 35 (F.C.), refd to. [para. 151, footnote 68].

Charkaoui, Re (2004), 328 N.R. 201; 2004 FCA 421, refd to. [para. 175].

Charkaoui v. Canada (Minister of Citizenship and Immigration) - see Charkaoui, Re.

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 175].

Statutes Noticed:

Constitution Act, 1867, sect. 96, sect. 99 [para. 13]; sect. 99(2) [para. 2]; sect. 100, sect. 101 [para. 13].

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 8(2) [para. 100], sect. 10(1.1) [para. 111]; sect. 15(2) [para. 136].

Authors and Works Noticed:

Bushnell, Ian., The Federal Court of Canada: A History, 1875-1992 (1997), pp. 75 [para. 68, footnote 35]; 97, 130, 193, 194 [para. 114, footnote 58].

Canada, Hansard, House of Commons Debates (December 19, 1967), p. 5635 [para. 108, footnote 56].

Canada, Hansard, House of Commons Debates (July 29, 1960), pp. 7193 to 7208 [para. 51, footnote 16].

Canada, Hansard, House of Commons Debates (June 14, 1960), pp. 4884 to 4936 [para. 51, footnote 16].

Canada, Hansard, House of Commons Debates (March 10, 1927), pp. 1080, 1081 [para. 48, footnote 14].

Canada, Hansard, House of Commons Debates (March 25, 1970), p. 5474 [para. 53, footnote 18].

Canada, Hansard, House of Commons Debates (March 27, 1987), p. 4643 [para. 153, footnote 70].

Canada, Hansard, House of Commons Debates (May 10, 1920), pp. 2200 to 2203 [para. 108; footnote 56].

Canada, Hansard, Senate Debates (June 21, 1960), pp. 834 to 839 [para. 51, footnote 16].

Corpus Juris Secundum, vol. 15, p. 721 [para. 60].

de Smith, Stanley Alexander, Judicial Review of Administrat ive Action (2nd Ed. 1968), pp. 368, 369 [para. 72, footnote 39].

Halsbury's Laws of England (3rd Ed. 1955), vol. 9, pp. 346 to 349 [para. 57, footnote 22]; 402 to 407 [para. 70, footnote 37].

Hansard - see Canada, Hansard, House of Commons Debates.

Hansard - see Canada, Hansard, Senate Debates.

Jobin, Jean-François, L'article 96 de la Loi constitutionnelle de 1867 et les organismes inférieurs d'appel (1964), p. 93, footnote 332 [para. 72, footnote 39].

Lewis, Clive, Judicial Remedies in Public Law (4th Ed. 2009), p. 67 [para. 72, footnote 39].

Stone, Arthur J., Canada's Admiralty Court in the Twentieth Century (2002), 47 McGill L.J. 511, pp. 522 [para. 19, footnote 5]; 525 to 558 [para. 67; footnote 34].

Strauss, Marina, Understaffed Federal Court Forced to Use Retired Judges, The Globe and Mail (August 30, 1982), p. A5 [para. 115, footnote 59].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 98, 99 [para. 151, footnote 68]; 210 to 213 [para. 41, footnote 11]; 238, 239 [para. 130, footnote 62].

Counsel:

Rocco Galati, for the applicant;

Gina Scarcella and Jamie Todd, for the respondent.

Solicitors of Record:

Rocco Galati Law Firm Professional, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This matter was heard at Ottawa and Toronto, Ontario, on September 23 and 24, 2009 and by video conference on October 28, 2009, by Lutfy, C.J., of the Federal Court, who delivered the following reasons for order on January 26, 2010.