Residency Requirements for Federal Adjudicators – Time to Reassess?

If you want to be a full-time member of a federal tribunal, one of the conditions of employment for many of those tribunals is that you must live within commuting distance of the National Capital Region (NCR), otherwise known as Ottawa-Gatineau. There was a time when this requirement made some sense – in the days before reliable telecommunications, especially video technology. However, today it acts as a significant barrier to a geographic diversity of appointments to tribunals. It also significantly limits the pool of available candidates for specialized tribunals.

Not all federal tribunals have this residency requirement. Some tribunals have regional structures, with offices in urban centres across the country (the Immigration and Refugee Board and the Parole Board, for example). However, many of the tribunals without a regional presence have residency requirements. For example, the statutory provision applicable to the Canadian Radio-television and Telecommunications Commission (CRTC) states:

10.1 (1) Subject to subsection (2), the members of the Commission shall reside in the National Capital Region as described in the schedule to the National Capital Act or within any distance of it that may be determined by the Governor in Council.

(2) If a regional office of the Commission is established under subsection 10(1.1), a member of the Commission who is designated for that region by the Governor in Council shall reside in that region and within any distance of that regional office that may be determined by the Governor in Council.

Although appointment practices by the federal Cabinet have varied over the years, an initial appointment to a tribunal can range from 2 to 5 years, with no guarantee of a reappointment. Reappointment practices have also changed in recent years. When I was first appointed, there was an understanding (although still not a guarantee) that if you did a decent job, you would be reappointed. Those days are long gone, and a reappointment can depend on many factors outside the control of the tribunal member (that’s a topic for another column).

So, ask yourself – would you uproot your family, sell your home and move to the NCR for 2 to 5 years of a guaranteed job?

The answer, anecdotally, has been no. I know many tribunal members from outside of Ottawa-Gatineau who rent an apartment to meet the residency requirements and travel home regularly. Those rental and travel expenses are personal expenses, however. Rents have been rising in Ottawa-Gatineau just as much as in the rest of the country.

The federal government in Budget 2024 recognized the impact of residency requirements on the diversity of the Federal Court and Tax Court:

Budget 2024 also announces the government’s intention to launch consultations on repealing the residency requirements for Federal Court and Tax Court judges. Eliminating residency requirements would allow for a wider and more diverse pool of applicants.

This announcement may demonstrate the influence of the Canadian Bar Association, which passed a resolution calling for this change at its 2024 annual meeting:

24-06-A — RESIDENCY REQUIREMENT FOR FEDERAL COURT AND TAX COURT JUDGES

WHEREAS section 7(1) of the Federal Courts Act and section 6(1) of the Tax Court of Canada Act require a judge of these courts to reside within 40 km of the National Capital Region;

WHEREAS the Federal Court and Tax Court are itinerant courts sitting in 18 and 59 municipalities respectively across Canada, with judges expected to travel away from their residence for significant amounts of time;

WHEREAS the Federal Court was created as a court of plenary jurisdiction, with specialized judges and the Tax Court was created as a specialized court with judges who specialize in tax law;

WHEREAS lawyers with the requisite specializations for these courts reside across Canada;

WHEREAS the residency requirements were enacted when technology did not exist to permit judges and court staff to work remotely;

WHEREAS the residency requirement dissuades or prevents qualified individuals from across Canada from applying to be judges of these courts;

WHEREAS eliminating the residency requirement will invite a wider and more diverse pool of applicants who have the specializations to be judges of these courts;

BE IT RESOLVED THAT the Canadian Bar Association urge the federal government to repeal of section 7(1) of the Federal Court of Canada Act (as it pertains to the Federal Court) and section 6(1) of the Tax Court of Canada Act.

The rationale for the CBA resolution stated:

…Research conducted by the CBA Intellectual Property Section showed that the majority of Federal Court judges were male (61%), Caucasian (87%) and from Ontario (54%)…

Of the current 23 Tax Court Judges, only five are women.

In March 2023, the CBA conducted a ThoughtExchange on perceived barriers to applying for judicial appointment. Residency requirements were identified as one top theme.

The Tax Court of Canada Act came into effect in 1983, replacing the Tax Review Board (TRB). Subsection 6(2) provided that TRB members who became Tax Court judges at that time and who did not reside in the National Capital Region were exempt from the residency requirement imposed by subsection 6(1). This is precedent for Tax Court judges to effectively adjudicate cases while residing outside the National Capital Region – at a time when technology wasn’t as good as today.

The CBA did not mention federal specialized tribunals with the same residency requirements and Budget 2024 makes no mention of federal tribunals either. It appears that the CBA neglected to consider this issue – or does not share a concern about barriers to appointments to federal tribunals. Of course, more lawyers aspire to an appointment to the bench than to a federal tribunal so there may be self-interest at play as well.

Of course, the same concerns raised by the CBA about specialized courts such as the Federal Court and the Tax Court apply with equal force to tribunals:

• lawyers with the requisite specializations for these tribunals reside across Canada;
• the residency requirements were enacted when technology did not exist to permit tribunal members and staff to work remotely;
• the residency requirement dissuades or prevents qualified individuals from across Canada from applying to be members of these tribunals
• eliminating the residency requirement will invite a wider and more diverse pool of applicants who have the specializations to be members of these tribunals

Residency requirements do not apply to part time members and many tribunals have had part time members in various regions of Canada for decades – so, similar to the Tax Court, there is a history to draw upon.

Removing residency requirements and allowing for more geographic representation in tribunals comes with challenges that are more critical than for courts, however. Collegiality is a key component of administrative justice and requires more work to achieve in a fully remote setting. The remote work of all organizations during the pandemic has given us the experience of the challenges and the tools needed to facilitate collegiality over long distances.

We could also learn best practices in encouraging collegiality from tribunals with part-time members across the country.

Budget 2024 only promised a consultation on residency requirements for the federal courts and expanding the terms of reference of the consultation to include federal tribunals with residency requirements is an easy fix to what was a simple oversight.