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The Provincial Court Amendment and Court of Queen's Bench Amendment Act

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S.M. 2001, c. 40

THE PROVINCIAL COURT AMENDMENT AND COURT OF QUEEN'S BENCH AMENDMENT ACT


 

(Assented to July 6, 2001)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

THE PROVINCIAL COURT ACT

C.C.S.M. c. C275 amended

1           The Provincial Court Act is amended by this Part.

2(1)        The following is added after subsection 3.1(2):

Criteria

3.1(2.1)    In appointing persons under clauses (2)(b), (d) and (e), the importance of reflecting, in the composition of the nominating committee as a whole, the diversity of Manitoba society shall be recognized.

2(2)        Clause 3.1(3)(a) is replaced with the following:

(a) subject to subsection 3(2), establish criteria for the selection of candidates for appointment under subsection 3(1), which shall include criteria respecting

(i) the assessment of the professional excellence, community awareness and personal suitability of candidates, and

(ii) the diversity of Manitoba society;

3           Section 3.2 is repealed.

4           The following is added after section 8:

Term for Chief Judge

8.0.1(1)    The Chief Judge holds office for a non-renewable term of seven years from the time of his or her appointment.

Salary at end of term

8.0.1(2)    A Chief Judge whose term expires continues to be a judge of the court and shall carry out the functions of a judge of the court.  He or she is entitled to receive the greater of the current annual salary of a judge of the court and the annual salary he or she received immediately before the term expired.

Application

8.0.1(3)    This section applies to a judge appointed as the Chief Judge after this section comes into force.

5           The following is added after section 8.2:

Designation of Acting Chief Judge by the Chief Judge

8.3(1)      The Chief Judge may designate an Associate Chief Judge to act in his or her place during the absence or illness of the Chief Judge.

Designation of Acting Chief Judge by minister

8.3(2)      If a designation under subsection (1) has not been made, or if the office of the Chief Judge is vacant, the minister may designate an Associate Chief Judge or a judge of the court to act in the place of the Chief Judge.

6           The following is added after section 9:

ASSOCIATE CHIEF JUDGES

Term for Associate Chief Judges

9.1(1)      An Associate Chief Judge holds office for a non-renewable term of seven years from the time of his or her appointment.

Salary at end of term

9.1(2)      An Associate Chief Judge whose term expires continues to be a judge of the court and shall carry out the functions of a judge of the court.  He or she is entitled to receive the greater of the current annual salary of a judge of the court and the annual salary he or she received immediately before the term expired.

Application

9.1(3)      This section applies to a judge appointed as an Associate Chief Judge after this section comes into force.

GENERAL PROVISIONS

7            Section 11 is repealed.

8           Section 11.1 is replaced with the following:

COMPENSATION COMMITTEE

Definitions

11.1(1)     In this section,

"associate chief judge's designated average" means, for a year in which a compensation committee is appointed, the average of three annual salary rates, one for each of New Brunswick, Nova Scotia and Saskatchewan, being paid on April 1 of that year to the associate chief judges of the provincial courts of those provinces; (« traitement désigné du juge en chef adjoint »)

"chief judge's designated average" means, for a year in which a compensation committee is appointed, the average of three annual salary rates, one for each of New Brunswick, Nova Scotia and Saskatchewan, being paid on April 1 of that year to the chief judges of the provincial courts of those provinces; (« traitement désigné du juge en chef »)

"compensation committee" means a Judicial Compensation Committee appointed under subsection (2); (« comité chargé de la rémunération »)

"judge's designated average" means, for a year in which a compensation committee is appointed, the average of three annual salary rates, one for each of New Brunswick, Nova Scotia and Saskatchewan, being paid on April 1 of that year to the full-time judges of the provincial courts of those provinces, other than the chief judge or the associate chief judges. (« traitement désigné du juge »)

Compensation committee appointed

11.1(2)     On or before April 1, 2002 and on or before April 1 in every third year after 2002, a compensation committee, to be known as the Judicial Compensation Committee, must be appointed by the Lieutenant Governor in Council in accordance with subsections (5) to (10).

Review by compensation committee

11.1(3)     A compensation committee shall investigate, report and make recommendations with respect to the following:

(a) the salaries to be paid to

(i) the Chief Judge,

(ii) an Associate Chief Judge, and

(iii) a judge of the court, other than the Chief Judge or an Associate Chief Judge; and

(b) the benefits to be paid, including pensions, vacations, sick leave, disability benefits, travel expenses and allowances, to the Chief Judge, an Associate Chief Judge and a judge of the court.

Effective period of recommendations

11.1(4)     The recommendations of a compensation committee must be made for the fiscal year of the government that begins on April 1 of the year in which the compensation committee is appointed, and for each of the next two fiscal years.

Composition of compensation committee

11.1(5)     A compensation committee consists of the following three members appointed by the Lieutenant Governor in Council:

(a) one person designated by the minister;

(b) one person designated by the judges of the court;

(c) one person, who shall act as chairperson, designated by the members who are designated under clauses (a) and (b).

Prohibition re members

11.1(6)     No judge or retired judge of the court, or of any other court, and no person employed in the civil service of the government or by a crown corporation, or retired from such employment, shall be appointed as a member of a compensation committee.

Minister designates a member

11.1(7)     On or before January 15 of a year in which a compensation committee must be appointed, the minister must notify the judges of the court that a compensation committee will be appointed and designate a member under clause (5)(a).

Judges designate a member

11.1(8)     On or before January 31 of a year in which a compensation committee must be appointed, the judges of the court must designate a member under clause (5)(b).

Designation of a chairperson

11.1(9)     On or before March 1 of a year in which a compensation committee must be appointed, the persons referred to in clauses (5)(a) and (b) must designate a chairperson under clause (5)(c).

If no agreement re chairperson

11.1(10)    If the persons referred to in clauses (5)(a) and (b) are unable to agree on a chairperson, the Dean of the Faculty of Law of the University of Manitoba, after consultation with the minister and the judges, shall designate the chairperson on or before March 31.

Term of committee member

11.1(11)    The term of a member of a compensation committee ends when the compensation committee's report is submitted.

Member absent or incapable

11.1(12)    In the event of the absence or incapacity of a member, the Lieutenant Governor in Council may, in accordance with subsections (5) and (6), appoint a substitute member for the unexpired portion of the term.

Conduct of review by compensation committee

11.1(13)     To the greatest extent possible, a compensation committee must conduct its review in an inquisitorial manner, assessing evidence it determines is relevant and necessary to enable it to make the recommendations referred to in subsection (3).

Powers of compensation committee

11.1(14)    A compensation committee

(a) may interview persons, examine records and documents and make inquiries as the compensation committee considers necessary;

(b) may establish its own rules of practice and procedure for the inquiries, interviews and examinations referred to in clause (a) and for the conduct of hearings; and

(c) has the powers, protection and privileges of commissioners under Part V of The Manitoba Evidence Act.

Remuneration and expenses

11.1(15)    A member of the compensation committee is entitled to receive remuneration and reimbursement for expenses, as determined by the Lieutenant Governor in Council.

Factors to be considered

11.1(16)    In making its report and recommendations, the compensation committee must consider the following factors:

(a) the nature of the judges' role and the independence of the judiciary;

(b) the need to attract and retain excellent applicants to the judiciary and the statistics with respect to the recruitment, retention, resignation and retirement of judges;

(c) the need to provide fair and reasonable compensation for judges in light of prevailing economic conditions in Manitoba and the overall economic and financial state of the Manitoba economy;

(d) the principle that public resources must be managed efficiently and effectively in the context of the government's current financial position;

(e) the cost of living and the growth or decline in real per capita income in Manitoba;

(f) the manner in which the compensation package paid to judges in Manitoba compares to judicial compensation packages in other jurisdictions in Canada, having regard to the differences between jurisdictions.

Salary information required in the report

11.1(17)    The compensation committee's report must set out the following information as to salaries paid to judges on April 1 of the year in which the compensation committee is appointed:

(a) with respect to the provincial courts of New Brunswick, Nova Scotia and Saskatchewan, the salary of the chief judge, the salary of an associate chief judge, and the salary of a full-time judge, for each of those courts;

(b) the chief judge's designated average;

(c) the associate chief judge's designated average;

(d) the judge's designated average.

Chairperson to certify salary comparisons for three year period

11.1(18)    In the report of the compensation committee, the chairperson must certify, for the fiscal year in which the compensation committee is appointed and for each of the next two fiscal years,

(a) the salary recommended for the Chief Judge for each year, and whether that salary is equal to or less than the chief judge's designated average, or whether it is more than the chief judge's designated average;

(b) the salary recommended for an Associate Chief Judge for each year, and whether that salary is equal to or less than the associate chief judge's designated average, or whether it is more than the associate chief judge's designated average;

(c) the salary recommended for a judge of the court, other than the Chief Judge or an Associate Chief Judge, for each year, and whether that salary is equal to or less than the judge's designated average, or whether it is more than the judge's designated average.

Reasons for recommendations required

11.1(19)    The compensation committee must give reasons for each of its recommendations.

Report given to minister and judges

11.1(20)    Within 180 days after the compensation committee is appointed, it must give its report, including recommendations, to the minister, the Chief Judge, the Associate Chief Judges and the judges of the court.  Until the report is tabled in the Legislative Assembly, it is confidential and must not be made public or disclosed to a person outside the government or the provincial judiciary.

Request to clarify report

11.1(21)    Within seven days after the report of the compensation committee is submitted, the chief judge, an associate chief judge, a judge of the court or the minister, may request the compensation committee to clarify the report or a part of it.  The compensation committee must consider the request and provide any clarification to the persons who received the report under subsection (20) within 15 days after the request is made.  The report is not considered to be submitted until the clarification is provided.

Minister to table report

11.1(22)    The minister shall table the report of the compensation committee in the Assembly within 15 days after it is submitted if the Assembly is sitting, or if it is not, within 15 days after the beginning of the next sitting.

When recommendations re salaries are binding

11.1(23)    For each year for which the compensation committee makes recommendations, the following recommendations are binding on both the government and the judges:

(a) the salary recommended for the Chief Judge for the year, if the chairperson of the compensation committee certifies with respect to that year that the recommended salary is equal to or less than the chief judge's designated average;

(b) the salary recommended for an Associate Chief Judge for the year, if the chairperson of the compensation committee certifies with respect to that year that the recommended salary is equal to or less than the associate chief judge's designated average;

(c) the salary recommended for a judge of the court other than the Chief Judge and an Associate Chief Judge, for the year, if the chairperson of the compensation committee certifies with respect to that year that the recommended salary is equal to or less than the judge's designated average.

Referral to standing committee

11.1(24)    Within 20 days after the report of the compensation committee is tabled, the recommendations of the compensation committee, except those that are binding on the government under subsection (23), must be referred to a standing committee.

Completing report

11.1(25)    The standing committee must complete its report to the Assembly within 120 days after the date of referral.

Reporting to Assembly

11.1(26)    The chairperson of the standing committee must present the report to the Assembly within five days after the report is completed if the Assembly is sitting, or if it is not, within five days after the beginning of the next sitting.

Report of standing committee re recommendations

11.1(27)    With respect only to those recommendations of the compensation committee that have been referred to it, the standing committee may in its report

(a) accept one or more of the recommendations;

(b) reject one or more of the recommendations; or

(c) reject one or more of the recommendations and set the salaries or benefits that are to be substituted for the salaries or benefits proposed by the rejected recommendations;

and if the standing committee rejects a recommendation, it must provide reasons for each recommendation rejected.

Implementing recommendations if vote in Assembly

11.1(28)    If a vote of concurrence takes place in the Assembly within 21 days after the standing committee's report is presented, the recommendations respecting salaries and benefits that are contained in the report of the standing committee and concurred in by the Assembly must be implemented in accordance with the vote.

Implementing recommendations if no vote in Assembly

11.1(29)    If no motion of concurrence is voted on in the Assembly within 21 days after the standing committee's report is presented, the recommendations of the compensation committee respecting salaries and benefits must be implemented.

Adjusting time periods

11.1(30)    Any time period within which the standing committee or the Assembly must act under this section

(a) shall, if the Assembly is dissolved, be suspended until 15 days after the beginning of the first session of the next Assembly; and

(b) may be extended, by resolution of the Assembly, for a period of time that is reasonably necessary to respond to dire and exceptional circumstances confronting the Assembly or the government.

Implementation by government

11.1(31)    The government must, with due diligence and reasonable dispatch, take whatever steps are necessary to implement the recommendations referred to in subsections (23), (28) and (29).

Costs of compensation committee process

11.1(32)    The judges of the court are entitled to costs prescribed in the regulations with respect to their participation in the compensation committee process. The Lieutenant Governor in Council may make regulations prescribing costs under this subsection and may set a total limit on the costs.

ANNUAL REPORT

Annual report re administrative accountability to the public

11.2(1)     Within three months after the end of each fiscal year of the government, beginning with the fiscal year ending on March 31, 2003, the Chief Judge must prepare an annual report about the activities and functioning of the court during the year.

Information to be included in annual report

11.2(2)     The annual report must contain the following information:

(a) the number and type of cases and proceedings according to categories of accused;

(b) the number and type of cases and proceedings, including final dispositions, reviews and inquests;

(c) the availability of trial dates;

(d) the contingent liability of the government for public funds that results from unused vacation leave or retirement allowances of the judges;

(e) the effective utilization of the court, including the average daily use of courtrooms by the Provincial Court in Winnipeg and in locations outside Winnipeg;

(f) any other information that, in the opinion of the Chief Judge, should be made available to the public to promote public understanding of the courts and the role of the judiciary;

(g) any other information that may be required by the regulations concerning the operation, functioning and administration of the court, including statistical information.

Annual report submitted to minister by Chief Judge

11.2(3)     The Chief Judge must submit the annual report to the minister who must table it in the Assembly within 15 days after receiving it if the Assembly is sitting, or if it is not, within 15 days after the beginning of the next sitting.

Annual report made available to the public

11.2(4)     The minister shall ensure that the report is made available to the public after it has been tabled in the Assembly.  If the Assembly is not sitting when the minister receives the report, the minister must make it available to the public within 15 days after receiving it.

Regulations

11.2(5)     The Lieutenant Governor in Council may make regulations

(a) respecting information that is required to be included in an annual report under clause (2)(g);

(b) respecting the form and manner in which the information required to be included in an annual report is presented.

Meetings of judges

11.3        The Chief Judge shall, whenever necessary and at least once in each year, convene a meeting of the judges for the purpose of dealing with matters relating to the administration of and practice in the courts or for any purpose relating to the administration of justice.

9           Section 48 is amended by striking out "judge and".

10          Clause 55(1)(d) and subsection 55(2) are repealed.

PART 2

THE COURT OF QUEEN'S BENCH ACT

C.C.S.M. c. C280 amended

11(1)       The Court of Queen's Bench Act is amended by this Part.

11(2)       Section 11.16 is repealed.

11(3)       Section 11.17 is replaced with the following:

Masters' compensation

11.17(1)    Masters, other than the senior master, are entitled to receive the same salary and benefits, including pension plans, vacations, sick leave, disability benefits, travel expenses and allowances, as judges of the Provincial Court of Manitoba.

Senior master's compensation

11.17(2)    The senior master is entitled to receive the same salary and benefits, including pension plans, vacations, sick leave, disability benefits, travel expenses and allowances, as an Associate Chief Judge of the Provincial Court of Manitoba.

PART 3

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENT AND COMING INTO FORCE

Transitional: definition

12(1)       In this section, "former Act" means The Provincial Court Act as it read immediately before the coming into force of this Act.

Transitional: existing entitlements

12(2)       For greater certainty, despite the repeal of section 11 of the former Act by section 7 of this Act, existing entitlements as to vacation leave, sick leave and severance allowances remain applicable to judges until the recommendations of the Judicial Compensation Committee established under section 11.1 of the former Act, by Order in Council No. 62/2001, are dealt with by the Assembly.

Act does not apply to existing compensation committee

12(3)       The provisions of The Provincial Court Act enacted by this Act do not apply to the Judicial Compensation Committee established under section 11.1 of the former Act by Order in Council No. 62/2001 or to the report or recommendations of that compensation committee.

Consequential amendment (unproclaimed provision)

13          Section 79 as enacted by section 18 of The Provincial Court Amendment and Consequential Amendments Act, S.M. 1997, c. 42, is amended by striking out "judge and".

Coming into force

14(1)       This Act, except section 13, comes into force on royal assent.

Coming into force:  section 13

14(2)       Section 13 comes into force on the day The Provincial Court Amendment and Consequential Amendments Act, S.M. 1997, c. 42, comes into force.