In a ruling released yesterday in Felipa v. Canada, the Federal Court of Appeal held that deputy judges of the Federal Court over the age of 75 have no authority under the Federal Courts Act.

A majority of the panel in Felipa v. Canada (Minister of Citizenship and Immigration), 2011 FCA 272 (PDF of decision), granted the appeal from a decision of Chief Justice Lutfy stating the the lower court ruling was “so inconsistent with the legislative scheme that the statutory interpretation upon which it is based cannot stand.” There are currently 6 deputy judges, all over 75, appointed to the Federal Court. The decision being appealed was Felipa v. Canada (Minister of Citizenship and Immigration), 2010 FC 89.

Deputy judges are appointed under the Federal Courts Act, s10(1.1):

10(1.1) 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 majority relied on sections 99(2) of the Constitution Act and 8(2) of the Federal Courts Act in its decision:

99. (2) 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.

8. (2) A judge of the Federal Court of Appeal or the Federal Court ceases to hold office on becoming 75 years old.

In dissent, Justice Stratas reasoned that deputy judges may act after attaining age 75 for among other reasons that many former judges are over the the age of 75 and this limitation is not mentioned in section 10(1.1) of the Federal Courts Act.

The ruling does not discuss the implications for rulings already made by deputy judges. The majority dismissed as speculation that the pool of judges under the age of 75 might not be able to handle the volume of work. This ruling may increase the pressure to appoint more Federal Court judges.

[Update: Added link to the FCA website copy of the decision, 2011 FCA 272.]

[Update: Law Times has an article on the decision.]