Beckett v. Canada ( Commissioner of Federal Judicial Affairs )
T-1516-95
Muldoon J.
18/9/97
11 pp.
Application to quash respondent's refusal to pay applicant's travel expenses-Applicant judge of Ontario Court of Justice (General Division) performing judicial duties in Hamilton, Ontario since 1990-Prior thereto, judge of County and District Courts of Ontario in Hamilton since 1984-Moving residence to Etobicoke, Ontario, located not in Central South Region of Ontario, but in Metropolitan Toronto Region-In 1989-1990, Ontario government reorganized provincial courts-Judges all sworn in as judges of newly amalgamated superior court of record-Provinces constitute, organize, maintain superior courts of both civil, criminal jurisdiction, and Dominion appointing judges under Constitution Act, 1867, s. 96, and paying salaries, allowances, pensions of all superior court judges under s. 100-Judges Act providing for residence requirements of s. 96 judges until 1990 when repealed by Ontario Courts Amendment Act, 1989-Application allowed-Judges Act, s. 36(2) cannot be invoked to refuse applicant's claim-S. 36 relating only to judges of Nova Scotia, Prince Edward Island and British Columbia, but not Ontario-Irrelevant to Ontario judges' travel allowance claims-In carving exception for statute's negation in s. 36(1) of travel allowances for s. 96 judiciary in three named provinces, s. 36(2) emphasizing judge's right to be paid travel allowance under s. 34(1)-S. 34(1) providing judge who for purposes of performing any function or duty in that capacity attending at any place other than in immediate vicinity of which judge by law obliged to reside entitled to be paid reasonable travel expenses-No law in force in Ontario obliging judge to reside at any particular place-"Obliged by law to reside" not applicable in Ontario-Thus applicant having right to be paid travel allowance under s. 34(1)-Legislative oversight not conferring upon any Court jurisdiction to legislate-Straightforward literal interpretation of s. 34(1) in circumstances of lacuna in Ontario legislation not leading to absurdity because neither Court nor respondent can conclusively assert Parliament's intention in regard to Ontario judges-Either federal or provincial legislature could enact regulations, but both decline to do so-Applicant entitled to travel allowances since 1990, for travel by least expensive, but dignified mode of travel-Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C., 1985, Appendix II, No. 5], ss. 96, 100-Judges Act, R.S.C., 1985, c. J-1, ss. 34 (as am. by S.C. 1992, c. 51, s. 12), 36 (as am. idem, s. 14)-Ontario Courts Amendment Act, 1989, S.C. 1990, c. 17, s. 28.