Federal Court Decisions

     T-1516-95

Between:

     MR. JUSTICE THOMAS A. BECKETT,

     Applicant,

     - and -

     THE COMMISSIONER FOR FEDERAL

     JUDICIAL AFFAIRS,

     Respondent.

     REASONS FOR ORDER

Muldoon, J.

     This dispute sounds basically in statutory interpretation, and each party cites much of the same jurisprudence and doctrine as the other party.

     The applicant is a judge of and in the Ontario Court of Justice (General Division) performing his judicial duties on lawful assignment to and in the Unified Family Court in Hamilton, Ontario, where he has acted as a judge since September 1, 1990. Prior to his present duties, he had been appointed a judge of and in the County and District Courts of Ontario in 1984, when he was assigned to the Unified Family Court (hereinafter sometimes: UFC) in Hamilton. At that time the applicant resided in Hamilton, but later he voluntarily and spontaneously moved his residence to Etobicoke, Ontario, with the knowledge of his then chief judge. Etobicoke is not within the Central South Region of Ontario, in which the UFC is located; rather, Etobicoke is located in the Metropolitan Toronto Region. From the evidence, it appears that judicial districts and judicial centres are included in more extensive areas called regions.

     The respondent makes a point of informing the Court that the applicant was no longer in compliance with the residence requirements of the Judges Act (R.S.C. 1985, Chap.J-1, hereinafter the Act) upon his removal from Hamilton to Etobicoke, and that is true, but of only mild relevance. Those were the days during which the Act contained requirement provisions about where judges resided. Such provisions were repealed by Parliament in 1990, pursuant to the Ontario Courts Amendment Act, 1989, S.C. 1990, Chap. 17, section 28.

     The respondent, Mr. Guy Y. Goulard, is a public official serving as the Commissioner for Federal Judicial Affairs, pursuant to an appointment in accordance with section 73 of the Act. The Commissioner has "the rank and status of a deputy head of a department and" * * * is "appointed by the Governor in Council * * *". More particularly, one of the respondent's responsibilities is to oversee the administration of Part I of the Act, which includes inter alia, those provisions dealing with travel, expenses and other allowances payable to judges in regard to the performance of their duties.

     It should be noted that in 1989-90 the government and legislature of Ontario reorganized the courts of that province by exercising the power conferred on the province pursuant to section 92, head 14 of the Constitution Act, 1867, U.K. 30 & 31 Victoria, Chap. 3. The County and District Courts, inferior courts of record, whose judges were appointed and paid by the federal authority (the Dominion, as it was rather felicitously called), were abolished and the judges were all sworn in as judges of the newly amalgamated superior court of record, the Ontario Court of Justice (General Division). Thus was the applicant translated in and to the new superior court, still within "the section 96 judiciary" as he had previously been. (Amending Order-in-Council PC 1991-447, p. 4). Under the notable check-and-balance feature of Canada's Constitution concerning the judiciary, the provinces constitute, organize and maintain superior courts of both civil and criminal jurisdiction under section 92, head 14 and (in one old-fashioned but succinct word) the "Dominion" appoints the judges under section 96, and pays the salaries, allowances and pensions of all superior court judges under section 100 of the Constitution Act, 1867. While the Judges Act, being an Act of Parliament has a national, trans-provincial reach, it did and does, also, contain provisions specific to each province's court structure and nomenclature.

     In 1985-89, before the amendments to the Act, sections 4, 5 and 6 provided for residence requirements of the "section 96" judges of Ontario, thus:

Residence

4. The judges of the Supreme Court of Ontario shall reside in The Municipality of Metropolitan Toronto or within forty kilometres thereof, but leave to reside elsewhere in the Province for any specified time may be granted from time to time by the Governor in Council. R.S., c.J-1, s.8; 1974-75-76, c.48, s.4; 1976-77, c.25, s.3.

5. Subject to section 6, every judge of a county court shall reside within the county or counties for which the court is established. R.S., c.J-1, s.34; 1974-75-76, c.48, s.20.

6. Any judge of a county court in the Province of Ontario may reside at any place within the county court district established pursuant to the County Judges Act of that Province, authorized or approved by the Governor in Council. R.S., c.J-1, s.34; 1974-75-76, c.48, s.20.

     If the sweeping away of the Act's residence requirements in 1990, without any provincial legislation to replace them, would have then validated the applicant's travel allowance claims, assuming that he formally made such claims, then he would be entitled to have accurate claims paid from 1990 or whenever the applicant first thereafter submitted his claims, to the present and beyond.

     The exact decision of the respondent which the applicant seeks to have quashed is expressed in the Commissioner's letter dated June 23, 1995. It was addressed to the applicant's solicitors and it runs:

Dear Mr. Zimmerman:

I refer to your letter of April 18 and June 19, 1995 and to your telephone conversation with Mr. Denis Guay, Deputy Commissioner, concerning Mr. Justice Thomas Beckett's travel expenses.

In accordance with section 38 of the Judges Act, for the purposes of performing any function or duty as a judge, a judge of the Ontario Court of Justice (General Division) is entitled to his or her travel expenses to attend at any judicial centre within the region for which he or she was appointed or assigned, other than the judicial centre at which, or in the immediate vicinity of which, he or she resides.

However, a judge residing outside the region for which he or she was appointed or assigned does not benefit from the provisions of section 38 and therefore is not entitled to his or her travel expenses for performing his or her judicial duty within the region for which he or she was assigned.

Since Mr. Justice Beckett resides outside the region for which he was assigned, the only authority under which his travel expenses from his residence in Etobicoke to the Unified Family Court in Hamilton could be reimbursed would be pursuant to subsection 36(2) of the Judges Act. However, before this could be done, we would require a letter from Chief Justice Roy McMurtry requesting an Order in Council authorising Mr. Justice Beckett to reside outside the Central South Region.

Should you require any additional information on this subject, please do not hesitate to contact me or Mr. Denis Guay at (613) 995-7438.

Yours truly,

[signed]

Guy Y. Goulard

Commissioner

(applicant's application record, tab 5, pp. 14 & 15)

(respondent's application record, tab 1, pp. 6 & 7)

     Before reciting and going into the proper interpretation of the relevant legislation, there is one provision invoked by the respondent which appears to be irrelevant, and therefore it can be eliminated from consideration, on the spot. That provision is subsection 36(2) of the Judges Act a later amended and unrepealed residence provision which does not impact on Ontario judges at all. Section 36 now runs:

36.(1) No travel allowance shall be paid

(a) to a judge of the Supreme Court of Nova Scotia for attending at the city of Halifax;

(b) to a judge of the Supreme Court of Prince Edward Island for attending at the city of Charlottetown; or

(c) to a judge of the Court of Appeal for British Columbia or of the Supreme Court of British Columbia for attending at either one of the cities of Victoria or Vancouver unless the judge resides at the other of those cities or in the immediate vicinity thereof.

(2) Nothing in subsection (1) affects the right of a judge to be paid a travel allowance under subsection 34(1) if the judge resides at a place approved by the Governor in Council. R.S., c.J-1, s.21; 1978-79, c.11, s.8; 1980-81-82-83, c.50, c.14; 1984, c.41, s.2.

     Clearly, and beyond doubt, section 36, in its two subsections (1) and (2), relates only to the judges of Nova Scotia, Prince Edward Island and British Columbia, but not Ontario. It therefore cannot be invoked to refuse the applicant's claim. It has nothing to do with Ontario judges' travel allowance claims. Subsection 36(2) does not require any chief justice's approval of payment of such travel allowances, much less Ontario's chief justice's approval, contrary to what is stated in paragraphs 8, 9 and 10 of the respondent's affidavit, sworn on August 15, 1995. Exhibit "A", Chief Justice McMurtry's letter declining approval is, with utmost respect, quite irrelevant. The always salutary rules of courtesy are, unfortunately, not the rules of law.

     Now, the clear effect of the Act's subsection 36(2) is to carve an exception for the statute's negation in subsection 36(1) of travel allowances as stated for the "section 96" judiciary of the three named provinces. In so doing, however, subsection 36(2) served to emphasize "the right of a judge to be paid a travel allowance under subsection 34(1)". Unfortunately for those who must try to interpret the Judges Act, subsection 34(1) contains an anomaly in regard to Ontario which surely ought to be ignored, rather than forcing this Court to weave legislative provisions which are the unique prerogative of Parliament.

     Here is the text of subsection 34(1), which creates and expresses the "right of a judge to be paid travel allowance".

34.(1) Subject to this section, and sections 35 to 39, a judge of a superior court [inter alia, the applicant] or county court or of the Tax Court of Canada who for the purposes of performing any function or duty in that capacity attends at any place other than that at which or in the immediate vicinity of which the judge is by law obliged to reside is entitled to be paid, as a travel allowance, his moving or transportation expenses and the reasonable travel and other expenses incurred by him in so attending.

It is the expression "place * * * at which or in the immediate vicinity of which the judge is by law obliged to reside", which evinces the anomaly, since counsel on each side were unable to identify any law which obliges an Ontario judge to reside in or at any particular place. There is no such law in force in Ontario. Subsection 34(2) disentitling a judge from travel allowance for attending at or in the vicinity of the judge's place of residence is certainly not engaged here. Section 35 is also of no concern here, for it concerns county court judges only. Section 36 has already been noticed. Section 37 applies to county court judges only. Section 38 applies only to Ontario district court judges. The respondent has not been able to cite a single provision of law whereby the applicant must be refused his travel allowance in this case.

     The above noted anomaly in regard to the Ontario judges, is not such in regard to judges of other provinces enacted, no doubt, in view of section 92, head 14 of the 1867 constitution. For one of the many examples put before this Court by the applicant's solicitors, one might have regard to Manitoba's provisions expressed in The Court of Queen's Bench Act, S.M. 1988-89, Chap.4, section 9.

Residence of Chief Justice

9(1)      The Chief Justice shall reside in, or in the vicinity of, the City of Winnipeg.

Residence of judges

9(2)      A judge shall, upon appointment, reside in, or in the vicinity of, the judicial centre that the Lieutenant Governor in Council, with the recommendation of the Attorney General after consultation with the Chief Justice, may direct.

Change in residence

9(3)      Where a judge established a residence in accordance with a direction made under subsection (2), the judge shall not afterwards

(a) be directed to move the residence to, or to the vicinity of, another judicial centre unless the judge consents to the move;

(b) move the residence to, or to the vicinity of, another judicial centre unless the Lieutenant Governor in Council, with the recommendation of the Attorney General after consultation with the Chief Justice, approves the move.

Judges away from Winnipeg

9(4)      Not less than three judges shall reside in, or in the vicinity of, a judicial centre located outside The City of Winnipeg.

     Other provinces have enacted the same kind of legislation concerning the residence requirements for the judges of provincial superior courts, despite the fact that their superior court judges are all appointed pursuant to section 96 and paid allowances by Parliament pursuant to section 100 of the Constitution Act, 1867. Those provinces undoubtedly consider that the residence requirements are an exercise of their powers to constitute, maintain and organize the provincial superior courts, (and county courts while there were county courts) pursuant to section 92, head 14 of the 1867 union Act. The notable and ominous exception from the list of provinces which have enacted this kind of legislation is Ontario.

     Therefore, whereas the expression in the Judges Act's subsection 34(1), "* * * the judge is by law obliged to reside * * *" has precise meaning in the provinces with pertinent legislation on the subject, that expression in subsection 34(1) of the Act has no meaning in Ontario. It has no meaning because of the lack or lacuna in the legislation of Ontario. Neither side could cite any such law of Ontario. It may be noted in passing that Parliament took the occasion of enacting the Nova Scotia Courts Amendment Act, S.C. 1992, Chap. 51, section 13, to repeal section 35 of the Judges Act without enacting any replacement. (Respondent's application record, (RR), tab 6.) So, the upshot of the foregoing is that the words "obliged by law to reside" in that federal statute, the Judges Act, simply do not apply in Ontario.

     Because the "obliged by law to reside" words do not apply to the applicant they are "invisible" in his case and the grammatical and legal requirements for subsection 34(1) of the Act present as follows: "* * * attends at any place other than that at which or in the immediate vicinity of which the judge * * * resides". Those words, then, define "the right of [the applicant] to be paid a travel allowance under subsection 34(1)" as it is described in subsection 36(2) of the Act.

     Well, why does the respondent refuse to pay the applicant the travel allowance to which subsection 34(1) entitles him as of right? It appears that the respondent is a conscientious and righteous public servant of deputy minister rank, whose, or whose solicitors' thinking is infected with the ancient notion of in consimili casu, consimile debet esse remedium, or "in a similar case, there ought to be a similar remedy". That precatory slogan, of ancient origin, appears to have no place here, for Parliament's recent vacation of the judges' residence requirements, and the Ontario legislature's declining to legislate in that field open to it, have cumulatively placed Ontario judges in a distinctly dissimilar position. Indeed an ancient maxim which is alive and well in Canada, is: Lex Angliae [lex Canadae, too] sine Parliamento mutari non potest, meaning "English law [Canadian law, too] can be changed only by Parliament". In a Canadian federal context, "Parliament" must be held to include provincial legislatures because of the constitutional division of powers.

     Now, there appears to be no reason why Parliament, having vacated a field generally to provincial legislation, may not retain legislative regulation of the subject in one or a few provinces, so long as by doing so, it does not violate section 15 of the Canadian Charter of Rights and Freedoms. It is salient, however, that in this instance, Parliament abandoned the field and chose not to retain any exercise of legislative power in regard to Ontario judges' residence requirements.

     This Court holds that the passages cited from P.A. Côté, The Interpretation of Legislation Canada (Cowansville, Qué.: Les Éditions Yvon Blais, Inc.), 2nd ed., 1992, and from Ruth Sullivan, Dreidger on the Construction of Statutes (Toronto: Butterworths), 3rd ed., 1994), do not demonstrate that this or any Court is empowered to legislate in the parliamentary, or in a provincial, field of competence. In this case, Parliament's, and the Ontario legislature's, language, or absence of language, do not admit of two constructions; and there is just no ambiguity whatsoever. There may have been some legislative oversight, but even that does not confer upon any Court, superior or otherwise, the jurisdiction to legislate. And a good thing, too. The Charter accords Courts much scope to engage in, or interfere with, the legislative process, and it is abundantly sufficient. In any event, the respondent - assimilated as he is to a deputy minister of justice - has had plenty of time to propose or sponsor specific legislation in order to rectify whatever anomaly Parliament may espy.

     Section 36, as has been seen, is applicable to judges other than Ontario judges. Subsection 34(1)'s words "obliged by law to reside" apply to judges other than Ontario judges, but otherwise is of general application. If other provinces should repeal their judges' residence provisions, their judges would be in the same position as the Ontario judges. Of course, the respondent cannot compel the Ontario legislature to enact provisions the same as, or similar to, those in force in Manitoba and other provinces. Equally, however, the respondent cannot persuade this Court to usurp Parliament's legislative powers.

     The respondent's concern for the taxpayers' pennies (an honourable and justifiable attitude for a public officer) is manifested in paragraph 24 of his memorandum of fact and law, thus:

24.      In this instance, it is submitted that were the applicant's statutory interpretation accepted, it would lead to the result that all members of the judiciary could be entitled to reimbursement for daily travel expenses between the judicial region where they were assigned and any location across Canada where they had chosen to live. This would lead to an unreasonable burden on the taxpayer. It would also lead to an absurd situation where the administration of the courts would be adversely affected by the administrative problems such an interpretation would create.

(RR, tab 2, p. 15)

That passage may also manifest the respondent's solicitors' flight of fantasy, but concern for the taxpayers is laudable.

     The respondent's paragraph 26 is also questionable:

26.      It is submitted that the applicant's statutory interpretation argument would require the Court to set aside the express scheme in the current Act. The Act speaks to circumstances in which travel allowances will be paid to the judiciary. The applicant asks the Court to adopt a much broader scheme of entitlement. It also asks the Court to find against parliamentary intention. The logical conclusion, based upon such an interpretation, could lead to an absurdity affecting the efficient management of the judiciary and the administration of justice.

The respondent's solicitors assume that Parliament's intention is that which the respondent would have it to be. It is speculative, but perhaps the uniquely great geographical extent of Ontario's land mass and the size of its judicial districts and regions compared, especially in northern Ontario, with the great distances between settled places, was the reason why Parliament - or the Ontario legislature - declined to enact judges' residence regulations. This Court does not know whether such speculation be correct or not, and neither does the respondent by all accounts.

     The more recently amended, present version of the Act's section 38 runs, thus:

38. A judge of the Ontario Court (General Division) whom, for the purposes of performing any function or duty in that capacity, attends at any judicial centre within the region for which he was appointed or assigned, other than the judicial centre at which or in the immediate vicinity of which the judge resides, is entitled to be paid, as a travel allowance, his moving or transportation expenses and the reasonable travel and other expenses incurred by the judge in so attending.

The above expression of Parliament's intent, and, as well the correspondence in March, 1991, between the late Chief Justice Callaghan and Mr. Pierre Garceau, then Commissioner for Federal Judicial Affairs (documents received pursuant to rule 1612 request, tabs 10, 11 and 12) could well be seen to corroborate the speculation to the point of inference.

     So, neither this Court, nor in truth the respondent can authoritatively assert that the straightforward literal interpretation of the Judges Act, subsection 34(1), in the circumstance of a lacuna in the Ontario legislation, "could lead to an absurdity" because neither this Court, nor the respondent can authoritatively or conclusively assert what exactly was Parliament's intention in regard to Ontario judges. Who can say that it must be exactly the same in regard to other provinces' judges? On the other hand, the Ontario legislature, having no extra-territorial legislative power, does not concern itself about judges in other provinces. Either the federal or the provincial legislature could enact regulations on judges' residences, but both decline to do so. Since this Court is not a legislature, the applicant's application will have to be allowed. He is entitled to his claimed travel allowances for which he has ever submitted a correct "Account for Travelling Allowance (section 34 of Judges Act)" also known as "Compte d'indemnités de voyage (article 34 de la Loi sur les juges)" since the latest of his appointment, assignment and swearing-in as a judge of the Ontario Court of Justice (General Division) in 1990. His entitlement dates back to his being fully eligible to travel to and from Court in his new rôle, at the taxpayers' expense. The travel allowances to be paid to him are those correctly claimed by the applicant for the expense of travel between his home or residence in Etobicoke, Ontario to the U.F.C. in Hamilton, Ontario by the least expensive, but dignified, mode of travel, that is: by train, by bus or by privately owned automobile, for example. The taxpayers ought not to have to buy lunch for the applicant for each of his ordinary working days at the U.F.C., for he would in any event be providing himself with lunch on ordinary working days whether he went off to the office daily within the district in which he resides, or not. If that is what the applicant meant by "all other proper allowances" in his originating notice of motion, then this Court denies such claim for his "travel status" is, in this regard, a daily going to work and returning home after the working day is ended. He is not in "travel status" in the same sense as being away from home and living in a distant hotel or apartment. A person going to work from home can take his lunch from home, or buy it at a restaurant or cafeteria. A person in full "travel status" can hardly make up a lunch at home each night, for he or she is away from home for a few or many nights. Any other "proper allowances" claimed should, of course, be scrutinized by the respondent as to propriety of payment.

     This Court is not aware of any time limit imposed by law or regulation for the presentation of expense allowances by judges to the respondent, except that such claims ought to be presented by March 31 in each year for expenses incurred during the previous year.

     The Court operates, in the matter of costs on judicial review, under rule 1618, which runs:

1618. No costs shall be payable in respect of an application for judicial review unless the Court, for special reasons, so orders.

No special reason for awarding costs has been shown in this matter. There are, then, no costs awarded to, or payable by, either party. Certainly the Court cannot attribute any improper motives to the respondent for refusing to pay claimed travel allowances, hithertofore.

    

Judge

Ottawa, Ontario

September 18, 1997