NCR Residency Requirement for Federal Court and Tax Court of Canada Judges

Via email: mcu@justice.gc.ca

Minister of Justice and Attorney General
Department of Justice
204 Wellington Street
Ottawa ON K1A OH8

Dear Minister Fraser:

Re: Consultation on the National Capital Region Residency Requirement for Judges of the Federal Court and Tax Court of Canada

We are writing on behalf of the Canadian Bar Association (CBA) in response to the Department of Justice’s Consultation on the National Capital Region (NCR) Residency Requirement for Judges of the Federal Court (FC) and Tax Court of Canada (TCC).

The CBA is a national association representing over 40,000 legal professionals, including lawyers, notaries, law professors, and students across Canada. Our mandate includes promoting the rule of law, improving access to justice, advocating for effective law reform, and providing expertise on how legislation impacts Canadians’ daily lives.  The CBA Working Group comprises a cross-section of members drawn from diverse areas of expertise, including intellectual property, the Federal Courts, Tax Court and Supreme Court of Canada Bench and Bar Liaison Committees.

The CBA Sections have provided below our points to answer each of the five (5) survey questions posed by the Department of Justice:

Q1. On the understanding that regardless of whether and how the current residency requirement is revised, judges of the FC and TCC will continue travelling to hear cases to ensure access to justice, should the NCR residency requirement continue to apply to the judges of these courts?

• The CBA Sections are of the view that the legislated NCR residency requirement in the Federal Courts Act and Tax Court of Canada Act should be removed for judges of the FC and TCC.
• On February 8, 2024, the CBA passed a resolution at its annual meeting urging the federal government to repeal subsection 7(1) of the Federal Courts Act and subsection 6(1) of the Tax Court of Canada Act.¹ The rationale for the resolution was that:
  • (a) the FC and TCC are specialized courts that require judges with specific specializations. Lawyers with the requisite specialization reside across Canada, and not solely (or even primarily) in the NCR; and
  • (b) the NCR residency requirement for FC and TCC judges dissuades or prevents qualified lawyers from across the country from applying to be judges of these courts. Thus, the elimination of the residency requirement will allow for a broader and more diverse pool of specialized lawyers to apply for appointment to these courts.
• Increasing diversity of applicant pool: Maintaining the legislated NCR residency requirement threatens to narrow the diversity of the applicant pool and disproportionately deters meritorious candidates with substantial personal, familial, cultural, or community commitments outside the NCR to apply to be a judge of the FC or TCC, thus progressing towards a judiciary that better reflects the diversity of Canada’s demographics. Insofar as the broader pool of applicants may include more bilingual candidates, this could also help to resolve the scarcity of bilingual judges and corresponding backlog of cases requiring bilingual judges. Eliminating the legislated NCR residency requirement will allow for a wider and more diverse pool of applicants and increase diversity amongst members of the FC and TCC.
• The legislated NCR residency requirement does not work in practice: There are practical hurdles with the maintenance of the NCR residency requirement, including that it may not be enforced in practice or that there are potential inconsistencies with implementation/enforcement that take away from the potential benefits of the requirement’s existence in prior years. For example, we understand that workarounds may be pursued, such as judges renting a residence in Ottawa for the purpose of satisfying the NCR residency requirement while substantially all their economic and personal ties remain outside of the NCR. These practicalities, which may themselves create additional barriers to qualified applicants, provide further support for the elimination of the NCR residency requirement.
• Removal of the legislated NCR residency requirement may increase sittings and decrease travel costs: The removal of the NCR residency requirement may allow some judges to experience shorter travel times, depending on the location of the hearings that the Chief Justice of the respective court assigns to them. Shorter travel times may decrease travel costs and result in more sitting days.
• No merit-based reason to retain the legislated NCR residency requirement: Given that judges of the FC and TCC are required to travel to hear cases, there does not appear to be any merit-based reason to legislate a requirement that a judge of the FC or TCC must reside in the NCR. Candidates who are prepared to relocate to the NCR are not more qualified for the important role served by FC and TCC judges in the same way that the judges of other Superior Courts are not less qualified for their roles merely because they do not need to relocate (or do not need to relocate to the same extent) to accept judicial office.

Q2. If changes should be made to the NCR residency requirement for the judges of the FC and TCC, should these judges be subject to residency requirements at all, or would it be sufficient for them to be appointed to sit primarily in a particular centre?

• Substantially for the reasons set out above, the CBA is of the view that judges of the FC and TCC should not be subject to any legislated residency requirements, beyond being resident in Canada.
• Furthermore, there should be no legislated requirement for a judge of the FC or TCC to be appointed to sit primarily in a particular centre: The residency of a judge should not dictate the assignment of cases, which should be left to the discretion of the Chief Justice of the FC or TCC, respectively.
  • Under the current NCR residency requirement, all judges sit in all regions based on the discretion of the court’s administration. This practice ought to continue.
  • A legislated requirement that each judge be appointed to sit primarily in a particular centre would, in many cases, mean that a particular judge would only or primarily hear cases in one centre (particularly for those judges assigned to larger centres), and could undermine the recently implemented Specialized Chambers of the FC. This is not beneficial. The Federal Court and Tax Court  are itinerant Courts, which means that one of their most important properties is that parties cannot forum shop for judges. If judges primarily hear cases in one centre, another drawback would be that parties could forum shop for a judge perceived to be beneficial to their position. This could be exacerbated by the Specialized Chambers, if there is only one judge from a particular chamber in a particular region.
  • Such a legislated requirement creates a risk of judge shopping, which hinders the effectiveness of the judicial system.
  • It also undermines the national character of the FC and TCC, which should continue to draw from the experience and expertise of judges from across Canada.
  • As the number, complexity, and location of hearings may change in the future, it would not be prudent to restrict judges by legislation to sit primarily in a particular centre.
• Flexibility for administrative support, offices, and law clerks are best left to the Chief Justice and should not be dealt with by way of legislation: While judges do require these supports and facilities, those matters are best left to the Chief Justice of the respective court in consultation with the particular judge and should not be legislated to require a judge appointed to sit primarily in a particular centre.

Q3. If changes should be made to the NCR residency requirement for the judges of the FC and TCC, what criteria should be used to determine which centres should qualify as centres to which judges can be appointed and/or required to reside?

• The CBA Sections are of the view that judges of the FC and TCC should not be subject to any legislated residency requirements, beyond being resident in Canada.
  • The survey question assumes that residency of a judge of the FC or TCC should be based on certain criteria to determine which centres should qualify as to where a judge can be appointed or required to reside. The CBA is of the view that there should be no legislated requirement regarding the residency of a judge (including appointing a judge to sit primarily in a particular centre) to solicit applications from the best, most qualified lawyers.
• Please see discussion in answer to Q2.
• No merit-based reason to legislate a requirement for a judge to be appointed and/or required to reside in a particular centre: There is no merit-based reason to legislate a requirement for a judge to be appointed and/or required to reside in a particular centre. Such a legislated requirement may have the unfortunate consequence of decreasing the number of applications to be a judge of the FC and TCC from certain groups who are unwilling or unable to relocate to that particular centre.
• If particular centres are mandated by legislation, then judges of the FC or TCC should be able to reside in any hearing location, or, failing that, in any location where the respective court has appropriate court facilities: If, however, the government legislates a requirement for judges of the FC and TCC to be appointed and/or required to reside in a particular centre, then judges of the FC should be able to reside in any location where the FC hears matters (currently general sittings are in Ottawa, Toronto, Montreal, Vancouver, Calgary, Edmonton, St. John’s, Charlottetown, Halifax, Fredericton), and judges of the TCC should be able to reside in any location where the TCC hears matters (currently the Tax Court sits at 59 hearing locations). In the further alternative, if the government legislates a requirement for judges of the FC and TCC to be appointed and/or required to reside in a particular centre and it is determined that the range of centres cannot cover all hearing locations of that particular court, then such requirement should permit judges to reside in any location where the respective court has appropriate court facilities to serve this purpose.

Q4. On the understanding that regardless of whether and how the current residency requirement is revised, judges of the FC and TCC will continue travelling to hear cases to ensure access to justice, what approach, if any, to judicial residency might encourage members of the following equity-seeking groups to apply to be a judge of these courts?

• The CBA Sections are of the view that judges of the FC and TCC should not be subject to any legislated residency requirements at all as any legislated requirement would only discourage and not encourage members of the above equity-seeking groups to apply.
• Any legislated requirement to judicial residency would discourage meritorious individuals from applying: Any legislated requirement that limits or restricts the residency of a judge of the FC or TCC will discourage members of any of the above equity-seeking groups to apply to be a judge of the FC or TCC.
  • Any residency requirement is a barrier to entry for many potential applicants, including those who have family responsibilities, care for elderly parents, care for a spouse or child with disabilities, or have existing support structures or community ties. For example, an Indigenous lawyer on a reserve may not apply to be a judge of the FC or TCC if they would be required to relocate to the NCR or a particular centre. On the other hand, such candidates may be well positioned to fulfill the requirements of judicial office by residing where they choose but travelling to attend hearings/other required judicial activities.
  • The existing published data suggests that there are still significant barriers for the above equity-seeking groups to be federally appointed judges.
    • The following are the number of applications for newly appointed federal judges (including for superior courts and not just the FC and TCC) for each of the equity-seeking groups above for the period October 2016 to October 2024 (last 8 years):²

• The following are the number of women and racialized judges appointed to the FC, TCC, and FCA³:

• Other ways to lower barriers to increase applicants instead of legislated judicial residency are preferred: Allowing for more flexible working arrangements and better investment in technology (secure videoconferencing, encrypted case management systems) may also assist in further lowering barriers, especially for candidates with disabilities or dependants.

Q5.  Would a change to the NCR residency requirement that allows judges to reside in centres other than the NCR raise any issues not canvassed by the foregoing questions?

• The following issues may be created by removing any legislated residency requirement:
  • A need to reallocate resources away from Ottawa to provide administrative support and an office for a judge who resides outside the NCR.
  • Travel costs may increase or decrease depending on the assignment of cases by the Chief Justice.
  • A need for greater technological infrastructure, as well as cybersecurity protections.
• The following additional issue may be created by creating a legislated requirement for judges of the FC and TCC to be appointed and/or required to reside in a particular centre:
  • Please see discussion in answer to Q2 under the point: There should be no legislated requirement for a judge of the FC or TCC to be appointed to sit primarily in a particular centre. Specifically, concerns about judge shopping and the effectiveness of the judicial system if cases are assigned only to judges appointed to a particular centre.

We look forward to working with you and your officials. Many thanks for acting so quickly on this consultation.

Yours truly,

(Original letter signed by Julie Terrien for the CBA Residency Working Group)

CBA Residency Working Group