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AR 33/2013 PROVINCIAL JUDGES AND MASTERS IN CHAMBERS 2013 COMPENSATION COMMISSION REGULATION

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ALBERTA REGULATION 33/2013

Judicature Act

PROVINCIAL JUDGES AND MASTERS IN CHAMBERS
2013 COMPENSATION COMMISSION REGULATION

Table of Contents

                1       Definitions

                2       Establishment of 2013 Commission

                3       Composition, etc., of Commission

                4       Role of Commission

                5       Commission expenses

                6       Presentation of report to Minister and Association

                7       Amendment of report

                8       Lieutenant Governor in Council’s decision on the report

                9       Effect of recommendations on Crown

              10       Public notice of inquiry

              11       Pre‑inquiry meeting

              12       Inquiry procedure

              13       Criteria for recommendations

              14       Voluntary meetings

              15       Provision of order in council and legislation to judges

              16       Confidentiality of the report

              17       Association’s costs of making submissions

              18       Judicial review

              19       Service of notices

              20       Expiry

              21       Commencement


Definitions

1   In this Regulation,

                                 (a)    “Association” means the Alberta Provincial Judges’ Association;

                                 (b)    “Commission” means the 2013 Alberta Judicial Compensation Commission established by section 2 and “commissioner” means a member of the Commission;

                                 (c)    “compensation” means the salary, pension, including the contributions of the Government of Alberta and judges, benefits and allowances provided to the judges;

                                 (d)    “inquiry” means the inquiry referred to in section 4(1);

                                 (e)    “judges” means, except in section 13(e), the judges of the Provincial Court and the masters in chambers holding office under the Court of Queen’s Bench Act;

                                  (f)    “reasons” means a written explanation that meets the justification standard under the Constitution of Canada used to evaluate decisions of a government to depart from a recommendation of an independent body regarding judicial compensation;

                                 (g)    “recommendations” means the recommendations referred to in section 4(2);

                                 (h)    “the Minister” means the Minister of Justice and Solicitor General;

                                  (i)    “the report” means the report of the Commission presented or to be presented under section 6 except that, if an amended report is or is to be presented under section 7(2), it means that amended report.

Establishment of 2013 Commission

2   The 2013 Alberta Judicial Compensation Commission is established.

Composition, etc., of Commission

3(1)  The Commission is to consist of

                                 (a)    one commissioner appointed by the Minister,

                                 (b)    one commissioner appointed by the Minister on the nomination of the Association, and

                                 (c)    one commissioner appointed by the Minister on the nomination of the commissioners appointed under clauses (a) and (b).

(2)  The commissioner appointed under subsection (1)(c) is to be the chair of the Commission.

(3)  If a commissioner dies, resigns or is unable or unwilling to discharge his or her responsibilities, the Minister shall appoint a replacement, which appointment, in the case of subsection (1)(b) or (c), is to be made only after receiving the applicable nomination.

(4)  Subject to subsection (5),

                                 (a)    active judges,

                                 (b)    justices of the peace,

                                 (c)    members of the Legislative Assembly,

                                 (d)    members of boards, commissions and other bodies appointed by the Lieutenant Governor in Council or by any minister of the Crown,

                                 (e)    other persons who hold office by way of an appointment by the Lieutenant Governor in Council or by a minister of the Crown, and

                                  (f)    employees within the meaning of the Public Service Act

may not be commissioners.

(5)  A person referred to in subsection (4)(d), (e) or (f) may be the commissioner referred to in

                                 (a)    subsection (1)(b) or (c), or

                                 (b)    subsection (1)(a) if the Association approves the appointment in writing.

Role of Commission

4(1)  The Commission shall conduct an inquiry respecting the appropriate level of compensation with a view to preparing the report, including

                                 (a)    the appropriate level of salary for judges sitting full or part-time or on a supernumerary basis,

                                 (b)    the appropriate design and level of judges’ pension benefits of all kinds,

                                 (c)    the appropriate level and kinds of benefits and allowances of judges, and

                                 (d)    any other issues relevant to the financial security of the judges that the Commission agrees to resolve.

(2)  The Commission shall, in the report, make recommendations respecting compensation for the period April 1, 2013 to March 31, 2017, the effective date of the recommendations, unless otherwise stated, being April 1, 2013.

(3)  The Commission shall determine issues relating to compensation independently, effectively and objectively.

(4)  The Commission shall contribute to maintaining and enhancing the independence of the Provincial Court and the judges through the inquiry process and the report.

Commission expenses

5(1)  The Crown shall pay the Commission all reasonable expenses incurred by the Commission in conducting the inquiry and preparing a report under this Regulation.

(2)  A commissioner is entitled to remuneration and reimbursement for expenses as determined by the Minister.

Presentation of report to Minister and Association

6   The Commission shall present its report or its initial report, containing its recommendations, to the Minister and the Association on the date determined by the Minister and previously notified to the Commission.

Amendment of report

7(1)  The Commission may amend a report presented under section 6 after reviewing any submissions made by the Minister and the Association if

                                 (a)    the Commission is satisfied that that report

                                           (i)    failed to deal with an issue raised during the inquiry, or

                                          (ii)    contains an obvious error,

                                     and

                                 (b)    the Minister or the Association requests that the Commission amend that report within 30 days after receiving that report under section 6.

(2)  Within 30 days after receiving a request under subsection (1)(b), the Commission shall either present an amended report to the Minister and the Association or inform them that there will be no amended report.

(3)  An amended report under subsection (2) may differ from the report presented under section 6 only so far as is necessary to deal with the matters referred to in subsection (1)(a).

(4)  Nothing requires the Minister or the Association to make a request under subsection (1)(b).

Lieutenant Governor in Council’s decision on the report

8(1)  On receiving the report, the Minister shall present it to the Lieutenant Governor in Council in adequate time for subsection (2) to be met.

(2)  Within 120 days after the presentation of the report under section 6 or, where that report is amended under section 7, that amended report, the Lieutenant Governor in Council shall make an order containing the decisions on the recommendations made by the Commission and, if any of those recommendations are not accepted, providing reasons for the non‑acceptance.

Effect of recommendations on Crown

9(1)  Subject to subsection (2), a recommendation made by the Commission is binding on the Crown.

(2)  A recommendation made by the Commission is not binding on the Crown if or to the extent that

                                 (a)    it is not accepted, with reasons given, by the Lieutenant Governor in Council, and

                                 (b)    the Minister provides a copy of the order in council containing the non‑acceptance and reasons to the Association within 14 days after the making of the order.

Public notice of inquiry

10   The Commission shall give such public notice as it considers necessary of the commencement of its inquiry and of the closing date for written submissions.

Pre‑inquiry meeting

11   At the earliest reasonable opportunity before the commencement of the inquiry, the Minister and the Association shall meet with the Commission to address any preliminary matters that may arise and any other matters that the Commission considers advisable.

Inquiry procedure

12(1)  Subject to this section, the Commission may determine its own inquiry procedure.

(2)  Section 17(2)(a) and (c) of the Interpretation Act do not apply.

(3)  The full membership of 3 commissioners provided for in section 3(1) constitutes the quorum at a meeting of the Commission.

(4)  The Minister and the Association shall make every endeavour to arrive at an agreed statement of facts and an agreed list of exhibits to be filed and, to the extent that they have been able to agree them, shall provide them to the Commission.

(5)  The Commission may record any inquiry proceedings and, if it does, shall provide transcripts to those who request them and pay the fee required by the Commission.

(6)  The Commission may accept such evidence as is relevant to the determination of the issues and is not required to adhere to the rules of evidence applicable to courts of civil or criminal jurisdiction.

(7)  Any member of the public is entitled to attend the inquiry proceedings and, subject to section 10, to make written submissions to the Commission.

(8)  The Commission may

                                 (a)    grant leave to any member of the public to make oral submissions, or

                                 (b)    notwithstanding section 10, limit to written submissions any submission from an individual judge,

after hearing submissions made by the Minister and the Association on whether or not to do so.

(9)  The Commission may require the attendance of any person who has filed written submissions and may require that person to respond to any questions from either the Minister or the Association, or both, as well as from the Commission, and if the person fails to appear or to respond to any of those questions, the Commission may ignore those written submissions.

(10)  The Commission may, on application, direct the Minister or the Association, or both, to produce any documents that are not subject to privilege.

(11)  The testimony of witnesses must be under oath or affirmation.

(12)  The Commission may not award costs for written submissions but may award the reasonable travel, accommodation and meal expenses of anyone required by the Commission to attend.

(13)  Any person requesting copies of any written submissions to the Commission is entitled to receive a copy of the submissions on payment of such reasonable fee as the Commission decides.

(14)  The recommendations must be based solely on the evidence submitted to the Commission.

(15)  If the Commission makes any recommendation by a simple majority on any matter, the commissioner in the minority may make a minority recommendation on that matter.

Criteria for recommendations

13   The Commission, in making the recommendations, shall consider the following criteria:

                                 (a)    the constitutional law of Canada;

                                 (b)    the need to maintain the independence of the judges and the Provincial Court;

                                 (c)    the unique nature of the role of judges;

                                 (d)    in the case of Provincial Court judges, the need to maintain a strong Provincial Court by attracting highly qualified applicants;

                                 (e)    the remuneration and benefits other judges in Canada receive;

                                  (f)    the growth or decline, or both, in real per capita income in Alberta;

                                 (g)    the need to provide fair and reasonable compensation in light of prevailing economic conditions in Alberta and the overall state of the economy, including the financial position of the Government;

                                 (h)    the Alberta cost of living index and the position of the judges relative to its increases or decreases, or both;

                                  (i)    the nature of the jurisdiction of judges;

                                  (j)    the level of increases or decreases, or both, provided to other programs and persons funded by the Government;

                                 (k)    any other factors considered by the Commission to be relevant to the matters in issue.

Voluntary meetings

14   The Minister and the Association may meet at any time to discuss improvements to the Commission inquiry process.

Provision of order in council and legislation to judges

15(1)  The Association shall, forthwith after receiving the copy of the order made under section 8(2) provide a copy of it to the judges.

(2)  The Minister shall, as soon as practicable, provide the Association with a copy of any legislation implementing the report and the order referred to in subsection (1) and the Association shall provide the judges with copies of the legislation forthwith after receiving it.

Confidentiality of the report

16   Subject to sections 6, 7(2) and 8(1), every person having access to the report or any proposed recommendations in it shall not disclose it or them to any other person, unless pursuant to an order of a court, until the order in council referred to in section 8(2) has been made.

Association’s costs of making submissions

17(1)  The Crown shall pay the reasonable costs incurred by the Association in making its submissions to the Commission in an amount not exceeding the amount set by order of the Minister, which order must be made within a reasonable period of time before the date set by the Commission for the commencement of its inquiry hearings.

(2)  If the Minister does not agree with the costs incurred by the Association for the purposes of subsection (1), including lawyers’ charges and other costs of the proceedings before the Commission, then, on the Minister’s application, the reasonableness of those costs may be reviewed by a review officer, in which case Rule 10.46 (including the right of appeal under Rule 10.46(4)) of the Alberta Rules of Court (AR 124/2010) applies.

Judicial review

18(1)  If

                                 (a)    the Lieutenant Governor in Council decides, with reasons, not to accept any of the recommendations in whole or in part,

                                 (b)    the Association or any judge brings an application for judicial review of that decision, and

                                 (c)    that application is successful,

the Court may not make the report binding on the Crown but may refer the report to the Lieutenant Governor in Council or to the Commission for a reconsideration.

(2)  If the Court makes the reference under subsection (1), the Lieutenant Governor in Council or the Commission, as the case may be, has 120 days from the day that the application was granted to reconsider the recommendations in accordance with the directions, if any, of the Court.

Service of notices

19(1)  A notice that is required by this Regulation to be given to the Minister must be given

                                 (a)    by leaving a written copy of the notice at the legislative office of the Minister, or

                                 (b)    by service on counsel as provided for in the Alberta Rules of Court (AR 124/2010), if the Minister has given notice in writing of the appointment of counsel.

(2)  A notice that is required by this Regulation to be given to the Association must be given

                                 (a)    by leaving a written copy of the notice at its registered office, or

                                 (b)    by service on its counsel as provided for in the Alberta Rules of Court (AR 124/2010), if the Association has given notice in writing of the appointment of its counsel.

(3)  Notwithstanding anything in this section, a document may be served, for the purposes of this Regulation, in accordance with any manner agreed in writing by the Minister and the Association with respect to such a document.

Expiry

20   This Regulation expires on March 31, 2019.

Commencement

21   This Regulation comes into force on April 1, 2013.