A-712-97
Mr. Justice John E. Sheppard (Applicant) (Appellant)
v.
The Commissioner for Federal Judicial Affairs (Respondent) (Respondent)
A-714-97
The Commissioner for Federal Judicial Affairs (Respondent) (Appellant)
v.
Mr. Justice Thomas A. Beckett (Applicant) (Respondent)
Indexed as: Sheppardv. Canada (Commissioner for Federal Judicial Affairs) (C.A.)
Court of Appeal, Stone, Strayer and Desjardins JJ.A. "Toronto, July 2; Ottawa, September 9, 1998.
Judges and Courts — Appeal, cross-appeal from orders declaring two Ontario judges entitled to reimbursement of expenses of commuting between residences outside judicial district to which assigned and chambers — Judges Act, s. 38 providing judge of Ontario Court (General Division) who, for purposes of performing any function, duty in that capacity, attending at any judicial centre within region for which assigned, other than judicial centre at which or in immediate vicinity of which resides, entitled to reasonable travel, other expenses incurred in so attending — S. 34 providing judge of superior court or Tax Court of Canada who for purposes of performing any function, duty in that capacity attending at any place other than that at which or in immediate vicinity of which —by law obliged to reside— entitled to reasonable travel and other expenses incurred in so attending — Residency requirements pertaining to federally appointed judges in Ontario abolished in 1990 — Motions Judge holding travel expenses recoverable under s. 34(1) as neither Judge by law obliged to reside within respective region — S. 38 not permitting payment of travel allowance to Ontario judge residing outside region where chambers located — Second reference to —judicial centre— in s. 38 referring to same kind of —judicial centre— as that first mentioned: namely judicial centre within region for which appointed or assigned — Indicating intention allowance authorized by section must be for travel by judge from home at or near judicial centre within region for which assigned to another judicial centre in same region — S. 38 authorizing travel allowance only if judge claiming it residing within region to which assigned — Consistent with payment of travel allowances to judges who travel for purposes of performing function or duty in capacity as judge — As neither judge resident within region to which assigned, travel expenses for commuting not authorized by s. 38 — As s. 34 subject to s. 38, reference in s. 34 to attendance at —place— for purpose of performing function, duty therefore construed as place other than —judicial centre— located within —region— to which Ontario judge assigned.
This was an appeal and a cross-appeal from orders declaring that Messrs. Justices Sheppard and Beckett were entitled to reimbursement of their expenses for commuting between their residences in Ontario and their chambers in the courthouse within the region to which they were assigned as judges of the Ontario Court (General Division). Both judges were appointed to the District Court of Ontario prior to 1990 and resided outside the judicial district to which they were assigned. On September 1, 1990, the county and district courts of Ontario were abolished and all judges of those courts were sworn in as judges of the newly amalgamated superior court of record, the Ontario Court (General Division). On the same date, the residency requirements in sections 4 to 6 pertaining to federally appointed judges in Ontario were repealed. Both judges continued to reside outside of the judicial region to which they were newly assigned. Both claimed travel expenses associated with their commute from their residences to their chambers. The Commissioner determined that they were not entitled to a travel allowance pursuant to Judges Act, section 38. Section 38 provides that a judge of the Ontario Court (General Division) who, for the purposes of performing any function or duty in that capacity, attends at any judicial centre within the region for which he was assigned, other than the judicial centre at which or in the immediate vicinity of which the judge resides, is entitled to be paid reasonable travel and other expenses incurred in so attending. Section 34 provides that, subject to sections 36 to 39, a judge of a superior 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 the reasonable travel and other expenses incurred in so attending. The Commissioner was of the view that the expenses could be reimbursed only pursuant to subsection 36(2) (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). Messrs. Justices Sheppard and Beckett applied for judicial review of the Commissioner's decision. The Motions Judge determined that the travel expenses were recoverable pursuant to subsection 34(1) because neither Mr. Justice Sheppard nor Mr. Justice Beckett were "by law obliged to reside" within their respective regions. Thus the expression "other than that at which or in the immediate vicinity of which the judge is by law obliged to reside" in subsection 34(1) was inapplicable.
The issue was whether Messrs. Justices Sheppard and Beckett were entitled to reimbursement for travel expenses incurred while commuting from their homes outside of their assigned regions to their chambers.
Held, the cross-appeal in docket A-712-97 and the appeal in A-714-97 should be allowed.
Sections 34 and 38 state explicitly that travel allowances are to be paid to a judge who travels "for the purposes of performing any function or duty" in his or her capacity as a judge. Although the meaning of section 38 is not entirely clear, it may reasonably be construed as not permitting payment of a travel allowance to an Ontario judge for commuting from his or her place of residence outside of the region to his or her chambers located within the region. The second reference to "judicial centre" must be taken to be a reference to the same kind of "judicial centre" as that first mentioned in the same sentence, namely a judicial centre within the region for which a judge was appointed or assigned. This was indicative of an intention that an allowance authorized to be paid by this section must be for travel by a judge from a home at or near a judicial centre within the region for which the judge was appointed or assigned to another judicial centre in the same region. Section 38 authorizes a travel allowance only if the judge claiming it does in fact reside within the region to which he or she is appointed or assigned. Such construction would appear to be consistent with the express purpose of the section. Neither Mr. Justice Sheppard nor Mr. Justice Beckett resides within the region to which he is assigned. Their claims for travel expenses which they incurred in commuting from home to their chambers were neither captured nor authorized by section 38.
Section 34 is expressly made subject to section 38. Accordingly, the provisions of section 38 must be kept foremost in mind in construing the scope of subsection 34(1) to the extent that it applies to Ontario judges. While section 38 speaks of attending at a judicial centre in the region to which an Ontario judge is "assigned", subsection 34(1) refers to attending at a "place" for the purpose of performing a function or duty. It seems reasonable to construe this latter word in the overall context of both sections as applying to a place other than a "judicial centre" located within the "region" to which an Ontario judge is assigned.
By subsection 15(4) a judge may be given a "temporary assignment . . . to a location anywhere in Ontario". Section 38 does not address the cost of travel on temporary assignment outside of a judge's own assigned region.
statutes and regulations judicially considered
An Act to Reform the Courts of the Province, S.N.S. 1992, c. 16, s. 52.
Court of Queen's Bench Act, R.S.A. 1980, c. C-29, s. 6.
Court of Queen's Bench Act (The), S.M. 1988-89, c. 4, s. 9.
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 15.
Courts of Justice Act, R.S.Q. 1977, c. T-16, s. 32.
Judges Act, R.S.C., 1985, c. J-1, ss. 4 (rep. by S.C. 1990, c. 17, s. 28), 5 (rep. idem), 6 (as am. by R.S.C., 1985 (1st Supp.), c. 11, s. 2; rep. by S.C. 1990, c. 17, s. 28), 34(1) (as am. by S.C. 1992, c. 51, s. 12), (2), 35 (rep. idem, s. 13), 36(1) (as am. idem, s. 14), (2), 37 (as am. idem, s. 15), 38 (as am. by S.C. 1990, c. 17, s. 33), 39.
Judicature Act, R.S.N. 1990, c. J-4, ss. 4, 22.
Judicature Act, R.S.N.B. 1973, c. J-2, s. 4.
Nova Scotia Courts Amendment Act, 1992, S.C. 1992, c. 51, ss. 12, 13, 14, 15.
Ontario Courts Amendment Act, 1989, S.C. 1990, c. 17, s. 28.
Queen's Bench Amendment Act, 1980 (The), S.S. 1979-80, c. 91, s. 5.
Queen's Bench Amendment Act, 1996 (The), S.S. 1996, c. 57, s. 3.
Supreme Court Act, S.B.C. 1989, c. 40, s. 2.
cases judicially considered
applied:
The King v. Dubois, [1935] S.C.R. 378; [1935] 3 D.L.R. 209.
authors cited
Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Que.: Y. Blais, 1991.
APPEAL, CROSS-APPEAL from orders declaring that Messrs. Justices Sheppard and Beckett were entitled to reimbursement of their travel expenses for commuting between their residences in Ontario and their chambers in the region to which they were assigned as judges of the Ontario Court (General Division) (Sheppard, J. v. Commissioner of Federal Judicial Affairs (Can.) (1997), 136 F.T.R. 256 (F.C.T.D.); Beckett v. Canada (Commissioner for Federal Judicial Affairs), [1997] F.C.J. No. 1214 (T.D.) (QL)). Appeal, cross-appeal allowed.
appearances:
Mr. Justice John E. Sheppard on his own behalf in A-712-97.
Peter A. Vita, Q.C. for respondent (respondent) in A-712-97, (Commissioner for Federal Judicial Affairs).
Peter A. Vita, Q.C. for respondent (appellant) in A-714-97.
W. Zimmerman and R. F. Bialachowski for applicant (respondent) in A-714-97 (Mr. Justice Thomas A. Beckett).
solicitors of record:
Deputy Attorney General of Canada for respondent (respondent) in A-712-97 and for respondent (appellant) in A-714-97 (Commissioner for Federal Judicial Affairs).
Zimmerman & Associates, Hamilton, for applicant (respondent) in A-714-97 (Mr. Justice Thomas A. Beckett).
The following are the reasons for judgment rendered in English by
Stone J.A.: These matters concern two orders of the Trial Division dated September 18, 1997 [Sheppard, J. v. Commissioner of Federal Judicial Affairs (Can.) (1997), 136 F.T.R. 256; Beckett v. Canada (Commissioner for Federal Judicial Affairs), [1997] F.C.J. No. 1214 (QL)], in which the Motions Judge declared that the Commissioner is liable pursuant to the Judges Act, R.S.C., 1985, c. J-1, as amended (the Act), to pay the expenses to each of Mr. Justice Sheppard and Mr. Justice Beckett for travel back and forth between their respective places of residence in Ontario and their chambers in the courthouse within the region to which they are assigned as judges of the Ontario Court (General Division). Mr. Justice Sheppard appeals the order concerning his travel claims in part, and the Commissioner has brought a cross-appeal of that order. The Commissioner also appeals the order concerning Mr. Justice Beckett's travel expenses.
Whether the claimants are entitled to an allowance for such travel depends on a proper interpretation of the Act as a whole, and sections 34 [s. 34(1) (as am. by S.C. 1992, c. 51, s. 12)] and 38 [as am. by S.C. 1990, c. 17, s. 33] in particular. Those sections read as follows:
34. (1) Subject to this section and sections 36 to 39, a judge of a superior 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, moving or transportation expenses and the reasonable travel and other expenses incurred by the judge in so attending.
(2) No judge is entitled to be paid a travel allowance for attending at or in the immediate vicinity of the place where the judge resides.
. . .
38. A judge of the Ontario Court (General Division) who, 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.
While the Commissioner contends that neither of these sections authorizes an allowance in the present circumstances, he concedes that sections 34 and 38 are difficult to interpret. In the particular cases before us, however, the Court must endeavour to construe the relevant sections of the Act as they are presently written.
Background facts
I propose first to summarize briefly the circumstances surrounding the travel expenses in question.
In 1987, Mr. Justice Sheppard was appointed as a judge of the District Court of Ontario and assigned to the District Court in the district which includes Newmarket, where his chambers were located. At the time of his appointment Mr. Justice Sheppard resided in North York which lies outside of that district. Pursuant to subsection 6(2) of the Act as it stood at that time1, he was permitted to reside in North York for a period of one year. With the consent of the Chief Judge, Mr. Justice Sheppard continued to reside in North York at the end of the one-year period. After the expiration of the one-year period, he did not claim any travel expenses associated with his commute from his place of residence in North York to the courthouse in Newmarket. However, the Commissioner reimbursed him for the expenses which he incurred while travelling within the district for the purpose of performing functions and duties in his capacity as a judge of the District Court.
In 1984, Mr. Justice Beckett was appointed as a judge of the District Court of Ontario and was assigned to the Unified Family Court in Hamilton in the judicial district of Hamilton-Wentworth. At the time of his appointment, Mr. Justice Beckett resided in Hamilton but later moved to Etobicoke, which is located in the Toronto Region of the Ontario Court (General Division).
On September 1, 1990, the Ontario courts were reorganized. The county and district courts of that province were abolished and all judges of those courts, including Mr. Justice Sheppard and Mr. Justice Beckett, were sworn in as judges of the newly amalgamated superior court of record, the Ontario Court (General Division). On that same date, the residency requirements in sections 4 to 6 of the Act pertaining to federally appointed judges in Ontario were repealed.2 Mr. Justice Sheppard was assigned by the Chief Justice to the Central East Region which includes the judicial centre at Newmarket where his chambers were located.3 He continued to reside in North York, which lies outside of the judicial region to which he was assigned. Mr. Justice Beckett was assigned to the Central South Region with chambers at the Unified Family Court in Hamilton.4 He continued to reside in Etobicoke, which is likewise situated outside of the judicial region to which he was assigned. On June 30, 1991, Mr. Justice Sheppard was re-assigned by the Chief Justice to chambers in the courthouse in Whitby which, like Newmarket, is located in the Central East Region.
Mr. Justice Sheppard and Mr. Justice Beckett claimed travel expenses associated with their commute from their respective places of residence in North York and Etobicoke to their respective chambers in Whitby and Hamilton. The Commissioner denied these claims on the basis that both Justices resided outside the region to which they were assigned and were therefore not entitled to benefit from a travel allowance pursuant to section 38 of the Act. The Commissioner was of the view that the expenses in issue could be reimbursed only pursuant to subsection 36(2) of the Act. Mr. Justice Sheppard and Mr. Justice Beckett applied to the Trial Division for judicial review of the Commissioner's decision, relying specifically on subsection 34(1) of the Act.
Decisions below
The issue before the Motions Judge in both cases was whether each Justice is entitled to be paid travel expenses in respect of his commute from home to the courthouse in which his chambers are located. The Motions Judge noted in his reasons for order that the Act no longer contains any residency requirements for Ontario judges. While other provinces have filled this gap by legislating such a requirement, he observed that there is no legislation in force in Ontario which obliges judges to reside within the region to which they are assigned. He found that subsection 34(1) of the Act therefore contains an "anomaly" with respect to Ontario judges. He further maintained that while the expression "is by law obliged to reside" in subsection 34(1) has a precise meaning in the provinces with relevant legislation on the subject, it has no meaning in Ontario because no such law exists. He determined in the end that the words "is by law obliged to reside" do not apply to Ontario judges and are to be considered "invisible" when construing section 34 of the Act. The Motions Judge made only passing reference in his analyses to section 38 of the Act.
The Motions Judge went on to note that either Parliament or the provincial legislature could have enacted legislation pertaining to residence requirements for Ontario judges, but that neither had chosen to do so. The Motions Judge surmised that it is not the Court's role to legislate in this area. He concluded that Mr. Justice Sheppard and Mr. Justice Beckett are permitted to be reimbursed for their claimed travel expenses. However, he found that they are not entitled to reimbursement for their daily lunch expenses. He further concluded that the expenses which Mr. Justice Sheppard incurred before June 30, 1991 in commuting from his residence in North York to the courthouse in Newmarket constituted a "stale" claim.
Submissions of the parties
The Commissioner submits that the Motions Judge erred in concluding that Mr. Justice Sheppard and Mr. Justice Beckett are entitled to be reimbursed for travel expenses which they incurred while commuting from their homes outside of their assigned regions to the courthouse within that region where their chambers are located. The Commissioner argues that the claims are governed exclusively by section 38 of the Act rather than section 34. Sections 36 and 37 [as am. by S.C. 1992, c. 51, s. 15] of the Act indicate, he contends, that Parliament did not intend that a judge should be paid a travel allowance to commute from his or her place of residence to the courthouse in which his or her chambers are located. According to section 38 of the Act, a judge must in fact reside within the region if he or she is to receive the benefit of that section. The intention of Parliament in adopting section 38, the Commissioner maintains, was to allow expenses for travel on judicial business within the region, except to judicial centres at which or in the vicinity of which the judge resides. The Commissioner submits that because section 38 is specifically applicable to judges of the Ontario Court (General Division), it supersedes the more general provisions of subsection 34(1) of the Act and must be interpreted as applying to a situation in which a judge of that Court is required to attend at any judicial centre, for the purpose of performing any function or duty in that capacity, other than the judicial centre within the region for which he or she was appointed or assigned.
The Commissioner further submits that the Act establishes an elaborate scheme for reimbursing judges for their travel expenses which arise from the performance of their functions or duties as a judge of the Court, and not otherwise. The object and purpose of the Act, he maintains, must be kept in mind when interpreting the relevant provisions. The Commissioner relies on the following passage by Pierre-André Côté in The Interpretation of Legislation in Canada, 2nd ed. (Cowansville, Québec: Editions Y. Blais, 1991), at page 321, where he states:
Supporters of such a view believe that the object of the statute, the goal pursued by the legislator, should always be considered. In many cases the courts have held that the aim of a statute is as important as its written expression. Justice Taschereau, in City of Ottawa v. Atlantic Railway Company, wrote:
We must give to the words in that charter a reasonable interpretation with reference to the subject matter and the public object that the legislative authority had in view . . . A statute must not be construed so as to defeat the clear intention of Parliament . . .
A few years later, in Regina Public School District v. Gratton Separate School District, Anglin J. stated:
Only "absolute intractability of the language used" can justify a construction which defeats what is clearly the main object of a statute . . . It would be contrary to sound construction to permit the use of the term not altogether apt to defeat the intention of the legislature, which must not be assumed to have foreseen every result that may accrue from the use of a particular word. [Footnotes omitted.]
To reimburse Ontario judges for expenses incurred while travelling from home to their chambers regardless of where they choose to reside in the province would, the Commissioner argues, be inconsistent with the object and purpose of the Act.
Mr. Justice Sheppard and Mr. Justice Beckett both submit that the sole purpose of subsection 34(1) and section 38 of the Act is to compensate judges for travel expenses and other allowances. These sections, they argue, provide a complete scheme with respect to entitlement to travel allowances for Ontario judges. Unlike the laws currently prevailing in British Columbia,5 Alberta,6 Saskatchewan,7 Manitoba,8 Québec,9 New Brunswick,10 Nova Scotia11 and Newfoundland,12 the laws of Ontario contain no specific residence requirement for judges of that province.
Mr. Justice Sheppard and Mr. Justice Beckett emphasize that because the residence of Ontario judges is no longer governed by the Act, Parliament was evidently of the view that their residence is more properly a matter for the provincial legislature. They submit that it is not for the Court to intervene and attempt to fill this legislative void by imposing a residency requirement when no such obligation is imposed by statute. Given that Parliament has repealed the residence provisions applicable to Ontario judges, they contend that it would be contrary to Parliament's intention to interpret section 38 of the Act as requiring them to reside in the region to which they were assigned. They argue that in order to maintain the internal consistency and coherence of the Act, subsection 34(1) should be interpreted by treating the words "is by law obliged to reside" as inapplicable to members of the Ontario judiciary.
Mr. Justice Sheppard contends for his own part that according to the Commissioner's interpretation of section 38, a colleague assigned to the Central East Region who resides within that region, with chambers in the judicial centre at Whitby and with a residence some distance from that courthouse but closer to another judicial centre within the region, would be paid his or her expenses of travelling to Whitby. Given that the judicial centre in the Central East Region closest to his place of residence is at Newmarket, Mr. Justice Sheppard submits that it is inequitable for the Commissioner to deny him an allowance for travelling to the judicial centre in Whitby merely because he happens to reside outside of the region. Counsel for the Commissioner conceded that it may seem anomalous to grant a travel allowance to a colleague in the above-described circumstances while denying one to Mr. Justice Sheppard. He argued nevertheless that this distinction is dictated by section 38 of the Act.
Mr. Justice Sheppard also maintains that the issue of daily lunch expenses was not in dispute between him and the Commissioner and, accordingly, this matter was not properly before the Motions Judge. Furthermore, he contends that the Commissioner has never asserted that his claim for travel expenses for commuting from his home in North York to Newmarket between September 1, 1990 and June 30, 1991 is "stale". Mr. Justice Sheppard argues that these travel expenses were similarly not before the Motions Judge. I would note that the Commissioner has taken no position with respect to either of these issues.
Statutory provisions
In order to appreciate and evaluate the strength of each party's argument, it is necessary to describe briefly the history of the statutory provisions in question from the time of the creation of the Ontario Court (General Division) on September 1, 1990. Before that date, the Act contained provisions which regulated the municipality, county or district in Ontario in which judges of that province were obliged to reside. Sections 4 to 6 of the Act read as follows:
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.
5. Subject to section 6, every judge of a county court shall reside within the county or counties for which the court is established.
6. (1) Subject to subsection (2), every judge of the District Court of Ontario shall reside within the county or district to which the judge is appointed or assigned.
(2) A judge of the District Court of Ontario may reside at any place outside the county or district to which the judge is appointed or assigned if that place of residence is approved by the Governor in Council.
On September 1, 1990, the Ontario Courts Amendment Act, 1989, S.C. 1990, c. 17 came into force. In addition to enabling the reorganization of the courts in Ontario pursuant to provincial legislation which became effective on that date, as mentioned above this federal statute repealed the residency requirements for Ontario judges which were contained in sections 4 to 6 of the Act. It also slightly amended section 38 to reflect the name of the Ontario Court (General Division). The Ontario Courts Amendment Act, 1989 did not affect sections 34 to 37 and section 39 of the Act. Sections 34 to 37 were amended on January 30, 1993, pursuant to the Nova Scotia Courts Amendment Act, 1992, S.C. 1992, c. 51 [ss. 12, 13, 14, 15]. Section 35 of the Act was repealed in its entirety. The other amendments, which were minor in nature, did not affect the substantive meaning of the relevant statutory provisions as they stood on September 1, 1990.13
Since January 30, 1993, the pertinent sections of the Act have read as follows:
34. (1) Subject to this section and sections 36 to 39, a judge of a superior 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, moving or transportation expenses and the reasonable travel and other expenses incurred by the judge in so attending.
(2) No judge is entitled to be paid a travel allowance for attending at or in the immediate vicinity of the place where the judge resides.
35. [Repealed.]
36. (1) No travel allowance shall be paid
(a) to a judge of the Nova Scotia Court of Appeal or of the Supreme Court of Nova Scotia for attending at the judicial centre at which or in the immediate vicinity of which the judge maintains his or her principal office;
(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 for attending at either 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.
37. A judge of the Supreme Court of Nova Scotia who, for the purposes of performing any function or duty in that capacity, attends at any judicial centre within the judicial district for which the judge is designated as a resident judge, other than the judicial centre at which or in the immediate vicinity of which the judge resides or maintains his or her principal office, is entitled to be paid, as a travel allowance, moving or transportation expenses and the reasonable travel and other expenses incurred by the judge in so attending.
38. A judge of the Ontario Court (General Division) who, 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.
39. Every application for payment of a travel allowance shall be accompanied by a certificate of the judge applying for it showing the number of days for which a travel allowance is claimed and the amount of the actual expenses incurred.
Analysis
The Commissioner concedes that since September 1, 1990 no law has existed requiring that either Mr. Justice Sheppard or Mr. Justice Beckett reside within the region to which they are respectively assigned. I agree that this is so. At the same time, it must be recognized that the purpose of sections 34 to 38 of the Act is essentially to regulate the payment of travel allowances to judges to whom those sections apply. It must also be recognized that both sections state explicitly that such allowances are to be paid to a judge who travels "for the purposes of performing any function or duty" in his or her capacity as a judge.
On the Commissioner's interpretation of section 38, payment of the travel expenses of an Ontario judge assigned, for example, to the Central East Region from his or her place of residence to his or her chambers at the Whitby judicial centre is authorized only if the judge's place of residence within the region is situated at or in the immediate vicinity of another judicial centre in the region. The Commissioner contends that reimbursement for such expenses is not permitted if the judge's place of residence is located outside of the region. Despite this seeming anomaly, we must determine as best we can whether it was the intention of Parliament that travel expenses should be paid in the first instance but not in the second.
This search for Parliamentary intention must in this case focus primarily on the provisions of sections 34 and 38 of the Act. Such is the guidance of the Supreme Court of Canada in The King v. Dubois, [1935] S.C.R. 378, at page 381, where Duff C.J. stated:
The duty of the court in every case is loyally to endeavour to ascertain the intention of the legislature; and to ascertain that intention by reading and interpreting the language which the legislature itself has selected for the purpose of expressing it.
It is convenient to recite section 38 of the Act once again, which reads:
38. A judge of the Ontario Court (General Division) who, 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. [Emphasis added.]
Section 38 does not impose on an Ontario judge the requirement of residing within the region to which he or she is appointed or assigned. Indeed, it is indifferent to the place at which a judge chooses to live, whether it be inside or outside of the region. However, the question remains whether section 38 authorizes the payment of a travel allowance to an Ontario judge for commuting from his or her place of residence outside of the region to his or her chambers located within the region. Although the meaning of this provision is not entirely clear, in my view it may be reasonably construed as not permitting such an allowance. It seems to me that, in the words I have underlined, the second reference to "judicial centre" must be taken to be a reference to the same kind of "judicial centre" as that first mentioned in the same sentence, namely a judicial centre "within the region for which he was appointed or assigned". This is indicative of an intention that the allowance authorized to be paid by this section must be for travel by a judge from a home at or near a judicial centre within the region for which he was appointed or assigned to another judicial centre in the same region. In other words, section 38 authorizes a travel allowance only if the judge claiming it does in fact reside within the region to which he or she is appointed or assigned. Such construction would appear to me to be consistent with the express purpose of the section. As the Motions Judge found, neither Mr. Justice Sheppard nor Mr. Justice Beckett resides within the region to which he is assigned. It therefore follows that their claims for travel expenses which they incurred in commuting from home to their chambers at Whitby and Hamilton, respectively, are not captured nor authorized by section 38 of the Act.
As I noted above, the Motions Judge determined that the travel expenses at issue in these appeals are recoverable pursuant to subsection 34(1) of the Act. I shall set out that provision again for the sake of convenience:
34. (1) Subject to this section and sections 36 to 39, a judge of a superior 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, moving or transportation expenses and the reasonable travel and other expenses incurred by the judge in so attending.
The Motions Judge was of the opinion that subsection 34(1) was applicable to the claims in issue because neither Mr. Justice Sheppard nor Mr. Justice Beckett are "by law obliged to reside" within their respective regions. It was for this reason that he viewed the entire expression "other than that at which or in the immediate vicinity of which the judge is by law obliged to reside" in subsection 34(1) to be inapplicable. On this basis the Motions Judge concluded that the claims must be paid as a travel allowance pursuant to the remaining language of the subsection.
I accept that section 34 is not readily construed. Again, however, we must turn to the pertinent language of the Act as a whole and of the section in particular in order to discern some indication of the intention that underlies it. Unlike section 38 of the Act which applies specifically to judges of the Ontario Court (General Division), section 34 applies to a judge of any superior court in Canada as well as a judge of the Tax Court of Canada. The judges of the Ontario Court (General Division) are thus within its contemplation.
The language of section 34 reveals that it is expressly made subject to section 38. Accordingly, the provisions of section 38 must, in my view, be kept foremost in mind in construing the scope of subsection 34(1) to the extent that it applies to Ontario judges. I would note that while section 38 speaks of attending at a judicial centre in the "region" to which an Ontario judge is "assigned", subsection 34(1) refers to attending at a "place" for the purpose of performing a function or duty. It seems reasonable to construe this latter word in the overall context of both sections as applying to a place other than a "judicial centre" located within the "region" to which an Ontario judge is assigned. As we have seen, although subsection 15(1) of the Courts of Justice Act , R.S.O. 1990, c. C.43, requires the Chief Justice to assign every judge of the Ontario Court (General Division) to a region, by subsection 15(4) a judge may be given a "temporary assignment . . . to a location anywhere in Ontario". In this regard, Mr. Justice Sheppard informed us that he has been given temporary assignments from time to time to places outside of the East Central Region, such as Ottawa and Toronto. The language of section 38 does not, in my view, address the cost of travel on temporary assignment outside of a judge's own assigned region.
The Commissioner's cross-appeal in Court file No. A-712-97 with respect to Mr. Justice Sheppard and his appeal in Court file No. A-714-97 with respect to Mr. Justice Beckett should be allowed, the orders of the Trial Division of September 18, 1997 set aside and the applications for judicial review dismissed. As none of Mr. Justice Sheppard's claims including those which were regarded by the Motions Judge as "stale" and for daily lunch are recoverable under the Act, Mr. Justice Sheppard's appeal should be dismissed. As the Commissioner is not seeking costs, none will be awarded.
Strayer J.A.: I agree.
Desjardins J.A.: I concur.
1 Judges Act, R.S.C., 1985, c. J-1, as am. by Ontario Courts Amendment Act, R.S.C., 1985 (1st Supp.), c. 11, s. 2, Sch., item 3.
2 Ontario Courts Amendment Act, 1989, S.C. 1990, c. 17, s. 28.
3 See assignments as of September 1, 1990 by Callaghan C.J. in Appeal Book (A-714-97), at pp. 58-66. As of that same date s. 15 of the Courts of Justice Act, R.S.O. 1990, c. C.43 read as follows:
15."(1) The Chief Justice of the Ontario Court shall assign every judge of the General Division to a region and may re-assign a judge from one region to another.
(2) There shall be at least one judge of the General Division assigned to each county and district.
(3) No judge of the General Division who was a judge of the High Court of Justice or the District Court of Ontario before the 1st day of September, 1990 shall be assigned without his or her consent to a region other than the region in which he or she resided immediately before that day.
(4) Subsections (1) to (3) do not prevent the temporary assignment of a judge to a location anywhere in Ontario.
4 Ibid.
5 Supreme Court Act, S.B.C. 1989, c. 40, s. 2.
6 Court of Queen's Bench Act, R.S.A. 1980, c. C-29, s. 6.
7 The Queen's Bench Amendment Act, 1980, S.S. 1979-80, c. 91, s. 5; The Queen's Bench Amendment Act, 1996, S.S. 1996, c. 57. s. 3.
8 The Court of Queen's Bench Act, S.M. 1988-89, c. 4. s. 9.
9 Courts of Justice Act, R.S.Q. 1977, c. T-16, s. 32.
10 Judicature Act, R.S.N.B. 1973, c. J-2, s. 4.
11 An Act to Reform the Courts of the Province, S.N.S. 1992, c. 16, s. 52.
12 Judicature Act, R.S.N. 1990, c. J-4, ss. 4, 22.
13 Prior to the 1993 amendments, sections 34 and 35 read as follows:
34. (1) Subject to this section and sections 35 to 39, a judge of a superior court 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.
(2) No judge is entitled to be paid a travel allowance for attending at or in the immediate vicinity of the place where the judge resides.
35. (1) No judge of a county court is entitled to be paid a travel allowance for attending at the county town of the county within which the judge resides or at the judicial centre or district town of the judicial district or circuit to which he is appointed or assigned.
(2) No judge of a county court is entitled to be paid a travel allowance for attending at a place not within the county or counties to the court of which the judge is appointed, or not within the county or counties or on the circuit to which he is assigned, unless the holding of the court is approved by the attorney general of the province and it appears to the satisfaction of the Minister of Justice of Canada that the attendance was duly authorized and necessary.