Time to drop arbitrary age to retire judges

Lawyers who challenged the age qualification of most deputy Federal Court justices may have thrown a monkey wrench into the workings of the overburdened court, but their action should lead to a modernization of a law that’s out of step with today’s reality.

The Federal Court was left scrambling last week to reassign some cases and adjourn others scheduled to be heard by several deputy judges who are older than 75, the age at which all superior court justices are required to retire under provisions of the Constitutional Act. However, the Federal Courts Act allows for any superior, county or district court judge to be appointed as a deputy, without mentioning any age limit for service, although it says a full fledged superior judge must retire at age 75.

The discrepancy has gone unchallenged for about three decades, with the Federal Court’s chief justice appointing as deputies retired justices who are on pension but given per diem payments for their work that helps alleviate backlogs in the court.

At a time when every province and territory has moved to accept the reality that mandatory retirement based on an arbitrary age is an archaic concept that has no bearing on a person’s ability to make a useful contribution, it’s absurd that a constitutional provision would prevent senior jurists from bringing their expertise to a field where their experience is invaluable.

With six of the Federal Court’s seven deputy justices over the age of 75, the legal challenge by lawyers in Toronto and Montreal against justices Louis Tannenbaum and Maurice Lagacé has serious ramifications. So far more than a dozen cases have been affected, but should the challenge be upheld when Chief Justice Allan Lufty issues a ruling in September, the court’s ability to hear everything from immigration and refugee cases to suits involving trademarks and litigation against the federal government would be greatly hampered.

Lawyer Susan Eng, vice-president of advocacy for the Canadian Association of Retired Persons that opposes mandatory retirement, put it well when she told the Toronto Star: “You should judge people based on their competency.

“It’s legitimate to ask people to have the cognitive ability when they are doing a job that requires absolute clarity. But you judge on the basis of individual competency, not on some arbitrary age.”

As geriatrician Dr. Michael Gordon, who teaches at the University of Toronto, points out, “We trade off our ability to manipulate knowledge with our experience. Obviously, experience goes a long way.”

Dr. Gordon suggests the senior court system take a page from the medical profession, which has no age limit for doctors practising but assesses their competency every five years after they reach age 70.

Despite the dream of many people to retire early at age 55 — a notion eagerly promoted by sellers of various retirement fund products — the reality is that the mandatory retirement age of 65 that was in place across Canada until recently was established at a time when average life expectancy was about 60.