3 min

Immigration bid waylaid

Federal Court deputy justices may be too old to rule

Hugo, a gay Mexican refugee claimant who asked that his last name not be used, is feeling very stressed. Having fled to Canada nearly three years ago, it seemed his journey might finally be nearing an end. But his case in the Federal Court was suddenly delayed on Aug 18 because the judge may be too old to rule.

Toronto lawyer Rocco Galati was arguing a different case before Federal Court deputy justice Louis Tannenbaum when he moved that it be adjourned because, at 77, Tannenbaum doesn’t have the jurisdiction to sit on the bench.

And it’s not just Tannenbaum at issue. Six of the seven Federal Court deputy justices are older than the mandatory retirement age of 75. All the cases before them have also been adjourned.

It’s not so much that the judges are older than 75, a 75-year-old person might make a perfectly good judge. It’s that the spirit of the law — that judges shouldn’t be older than 75 — is being circumvented.

“I don’t have an opinion on the competence of justice Tannenbaum based on his age,” says Hugo’s lawyer Michael Battista. “For me, it’s a matter of complying with the law. The issue is that the Constitution Act, as well as the Federal Courts Act prohibits a judge from deciding cases past the age of 75.”

But the same Federal Courts Act allows for the appointment of deputy justices, regardless of age, if the workload in the court gets too heavy. Deputies have the same powers as full justices but are supposed to work on a temporary, part-time basis.

And, says Battista, there has been a conspicuous flurry of older-than 75 deputy justices appointed to the Federal Court in recent years.

Battista was slated to argue Hugo’s case before the very same deputy justice Tannenbaum the same week of Galati’s challenge. Like Galati, Battista applied to have Hugo’s case adjourned until there is a ruling on Tannenbaum’s jurisdiction in the case.

Battista says Hugo’s case is strong, that an adjournment would be regrettable, but that he needed to avoid the consequences if it turns out Tannenbaum doesn’t have the jurisdiction to rule.

“If the judgment went in my favour and it was subsequently found that the justice had no legal capacity to act, we would have had to end up arguing the case all over again,” says Battista.

The issue has opened up the possibility that judgments rendered over the past three or four years by over-age deputy justices could be challenged, thus creating further delays in the Federal Court.

“The law was clear that judges shouldn’t sit beyond the age of 75,” Battista says. “I do understand that the goal of appointing these deputy justices past the age of 75 was to assist the court with its workload, but there’s certainly no dearth of qualified lawyers who could be appointed as judges who are under the age of 75. It’s not clear to me why it’s required to appoint somebody past their legally mandated age.

“The irony in this is that the federal minister of Citizenship and Immigration has been complaining quite vocally in the media lately about the delays in the system and blaming nationals from certain countries, like Mexico and the Czech Republic, for causing those delays,” Battista says. “I think this is a really good illustration of how the federal government itself is often complicit in the delays in the system.”

The Auditor General also found that the Conservative government’s delays in appointing adjudicators to the Immigration and Refugee Board (IRB) was to blame for much of the backlog.

For his part, Hugo remains vulnerable. Having fled an abusive relationship with a Mexican government official who, Hugo alleges, physically and sexually assaulted him with no fear of intervention by a corrupt police force, he is anxious to have his case settled.

“It’s been very hard for me,” Hugo says, the strain evident in his voice. “I was counting the days for it but it didn’t happen. It’s overwhelming and it doesn’t make you feel like you’re living comfortably.”

Hugo has property in Mexico he needs to dispose of. His grandmother died there in the past year and his grandfather is ill. Hugo is struggling with guilt and uncertainty. His work permit is due to expire in November. He is stuck, unable to move on, especially with the wounds of his abusive relationship still fresh in his mind.

“I’ve been hurt a lot. He damaged me.”