Two municipal judges who sought to stay on the bench beyond the retirement age of 70 lost their legal battle after Quebec Superior Court held that a mandatory retirement age for provincially-nominated magistrates is not discriminatory and is necessary to preserve judicial independence.
But the ruling has not settled the issue of mandatory retirement age for provincially-nominated judges, according to Gérald Tremblay, former batonnier of the Quebec law society. Seven years ago, an Ontario Superior Court judge ruled that a law forcing justices of the peace in the province to retire at the age of 70 was a violation of equality rights guaranteed under the Canadian Charter of Rights and Freedoms. Justice Strathy, now Chief Justice of the Ontario Court of Appeal, substituted – or “read in” – new provisions that allow justices of the peace to keep working until age 75, subject to the annual approval of the Chief Justice of the Ontario Court of Justice, even though the official retirement age is 65.
“It’s very interesting that the Quebec decision did not follow Justice Strathy’s ruling,” remarked Tremblay, a partner with McCarthy Tétrault LLP. “That is the Canadian Constitution at work: a provincial court is not bound by a decision of a court decided in another province. Eventually a court of appeal is to going to have to decide which of the two rulings is more persuasive.”
Justices Philippe Clément and Michel Paquin, who have more than 30 years of experience as municipal judges, argued that the mandatory retirement age spelled out in the Act respecting municipal courts is unconstitutional because it infringes section 10 of the Quebec Charter of Human Rights and Freedoms and section 15 of the Canadian Charter. They also pointed out that judges of the Court of Quebec and justices of the peace can work beyond the age of 70, while federally-nominated judges can retire at the age of 75. The fact that they cannot is discriminatory, argued the two judges. They also asserted that being able to work beyond the age of 70 would ensure their financial security, one of the essential conditions behind judicial independence.
In a 57-page ruling that examines the mandatory retirement age of judges across the country, Justice Michel Yergeau held that his hands are tied. It is not up to the Court to arbitrarily set an age that is different from that determined by the provincial legislature, which in this case was established with the assistance of a Quebec judge’s organization, the Conférence des juges du Québec, ruled Justice Yergeau in Clément v. Québec (Attorney General) 2015 QCCS 2207. In fact, setting a mandatory retirement age for provincially-nominated judges is the “best-suited mechanism” to ensure the tenure of judges and to protect them from discretionary decisions by legislatures that could put their judicial independence in peril, noted Justice Yergeau.
Eliminating mandatory retirement for judges would inevitably lead to the establishment of a “complex evaluation process” that would examine their aptitudes and capacity to continue to work, added Justice Yergeau. Informed by guidance by the Supreme Court in Stoffman v. Vancouver General Hospital,  3 SCR 483, Justice Yergeau pointed out that such a program could have an invidious and “humiliating” effect, especially on seasoned professionals.
“If there was a superior authority that conducted an evaluation of the performance of judges, that would lead to a judicial system that would be under trusteeship,” remarked Tremblay. ”That would open a Pandora’s box, and would be an obstacle to judicial independence.”
Justice Yergeau also dismissed the judges’ arguments that the mandatory retirement age for municipal judges infringed section 10 of the Quebec Charter, which states that every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex or age, except as provided by law. “A distinction based on age, when it is provided by the law, is not discrimination under the Quebec Charter,” held Justice Yergeau.
Nor does the mandatory retirement age set out by the provincial legislature infringe section 15 of the Canadian Charter, concluded Justice Yergeau. He notes that the Supreme Court in Withler v. Canada (Attorney General),  1 SCR 396 held that equality is not about sameness, and that section 15(1) of the Canadian Charter does not protect a right to identical treatment. Instead it protects every person’s right to be free from discrimination. After applying the two-step test from the SCC in R. v. Kapp,  2 SCR 483 to determine whether there was discrimination under s.15 of the Canadian Charter, Justice Yergeau concluded that the mandatory retirement age of 70 years old for municipal judges does not create a disadvantage by perpetuating prejudice or stereotypes. “Article 39 of the Act respecting municipal courts is not intended to separate judges over the age of 70 from other judges and treat them worse,” said Justice Yergeau. “The only goal behind this legislative choice is the tenure of judges.”
Justice Yergeau was also not swayed by their argument that their financial security is in jeopardy because they cannot work beyond the age of 70. In Quebec, there are two types of municipal judges. Judges like Justice Clément who work in Montreal, Quebec City and Laval are employed as full-time judges and benefit from a pension plan. The others, like Paquin, work on a part-time basis, are paid per session, and can continue to practice as a lawyer even after having been named as a judge. While these judges do not have a pension plan or other benefits, they are financially compensated for the lack of benefits, points out Justice Yergeau.
According to former Quebec Superior Court Justice François Daviault, the case brought forth by the two municipal judges were “not impressive.” The two municipal judges failed to introduce witnesses or expert evidence to bolster their case, a shortcoming Justice Yergeau pointed out several times in the ruling. They also did not obtain the backing of other judge’s organizations, which did not help their case, said Daviault. “It’s very surprising that they did not introduce expert evidence,” said Daviault, now with Montreal law firm Lepage Carette. “I am convinced that if the two judges had arguments of some value then I believe they would have been supported by other judges. But nobody intervened.”
Officials charged with a public mandate hold responsibilities and face constraints, observed Pierre Issalys, a law professor at the Université Laval. “If at a social level one should encourage seniors to continue their professional activities if they want to and are capable of doing so, it is justified to impose limits on people charged with a public mandate, like judges, so long as it is reasonable,” said Issalys in an email. “As an aside, the plaintiffs were aware of the existence of the mandatory retirement age when they accepted to become municipal judges.”
Chantal Chatelain, a former Montreal lawyer who represented Court of Quebec judges before provincial judicial compensation committees and who is now a Quebec Superior Court judge, said in an email that the ruling is of significant importance because it highlights the “necessity of considering the particularities of judges’ functions and the need to offer judges adequate compensation which are aligned to the particular status of judicial office in order to satisfy the constitutional requirement of judicial independence.”
This story was originally published in The Lawyers Weekly.