On January 26, 2010, the Federal Court ruled that persons older than 75 years of age are permitted to sit as Deputy Judges of the Federal Court and the Federal Court of Appeal. This issue arose in the context of an immigration proceeding, Felipa v. Minister of Citizenship and Immigration, in which the Applicant brought a motion challenging the jurisdiction of a deputy judge over the age of 75 to hear and determine proceedings in the Federal Court.
Deputy judges have been requested to participate in the work of the Federal Court for over three decades. They are selected by the Chief Justice of the Federal Court based on statutory criteria and have provided the Chief Justice with the flexibility to add judicial resources where circumstances require. Deputy judges over the age of 75 have participated in over 1,500 reported decisions prior to December 31, 1999 and over 450 cases between 2005 and 2009. Remuneration is on a per diem basis and deputy judges can refuse assignments unlike judges of the Federal Court.
The Chief Justice’s decision in Felipa v. Minister of Citizenship and Immigration offers a lengthy and detailed analysis of statutory and constitutional provisions, including a review of the historical background of certain provisions. As a result of his analysis, the Chief Justice concluded that persons older than 75 years of age are not precluded by either the Constitution Act or the Federal Courts Act to sit as Deputy Judges.
The importance of clarifying the jurisdictional issue was reflected in the fact that the Chief Justice awarded a fixed amount of costs to the unsuccessful Applicant and indicated that his decision should be made subject to appellate review. Though this is an immigration proceeding (which requires certification in order to be appealed), the Chief Justice determined that this case may be appealed without certification. In the alternative, the Chief Justice indicated that he is prepared to certify it to permit an appeal.
LINK TO DECISION :