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S.M. 1999, c. 34
THE COURT OF QUEEN'S BENCH AMENDMENT AND CONSEQUENTIAL AMENDMENTS ACT
(Assented to July 14, 1999)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
The Court of Queen's Bench Act is amended by this Act.
The definition "master" in section 1 is amended by striking out "section 11" and substituting "section 11.1".
Section 11 and the Part heading before it are repealed and the following is substituted:
PART IV
MASTERS OF THE COURT
DIVISION 1
DEFINITIONS
In this Part,
"administrator" means the person appointed as administrator under subsection 11.28(1); (« administrateur »)
"board" means the Judicial Inquiry Board referred to in subsection 11.22(1); (« Commission »)
"council" means the Masters Judicial Council established in section 11.24; (« Conseil »)
"incapacity" means the inability of a master to perform his or her duties as a result of a physical or mental condition or disorder; (« incapacité »)
"misconduct" includes
(a) conduct unbecoming a master, and
(b) neglect of duty by a master; (« inconduite »)
"nominating committee" means the Masters Nominating Committee referred to in subsection 11.3(2); (« Comité de nomination »)
"senior master" means the person appointed under this Act as the Senior Master of the court. (« conseiller-maître principal »)
DIVISION 2
APPOINTMENT, SENIOR MASTER AND GENERAL MATTERS
APPOINTMENT
The Lieutenant Governor in Council may appoint such persons as he or she considers necessary as masters of the court in accordance with the provisions of this Part.
No person shall be appointed a master unless the person
(a) is a member in good standing of The Law Society of Manitoba;
(b) is entitled to practise as a barrister and solicitor in Manitoba; and
(c) has practised as a barrister and solicitor in Manitoba for not less than five years, or has other equivalent experience.
Appointment from list of candidates
An appointment under section 11.1 shall be made from a list of candidates that is recommended by a nominating committee to be known as the Masters Nominating Committee.
The Masters Nominating Committee shall be composed of the following five members:
(a) one person who is a lawyer, retired judge or retired master appointed by the Lieutenant Governor in Council, who shall be the chairperson of the committee;
(b) the president of The Law Society of Manitoba, or a member of The Law Society designated by the president;
(c) the president of the Manitoba Branch of The Canadian Bar Association, or a member of the Manitoba Branch of The Canadian Bar Association designated by the president;
(d) two persons who are not lawyers, judges, masters, retired judges or retired masters, appointed by the Lieutenant Governor in Council.
Convening nominating committee
When an appointment is to be made under section 11.1, the Minister of Justice shall advise the Chief Justice that the nominating committee is being convened and the Chief Justice shall advise the senior master.
Duties of nominating committee
A nominating committee shall
(a) subject to section 11.2, establish criteria for the selection of candidates for appointment under section 11.1, 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;
(b) advertise for applications and nominations of candidates, in such manner as it may decide;
(c) accept applications and nominations, in such form as it may decide, of candidates, and may invite persons to make application;
(d) evaluate, in such manner as it considers advisable, the application of a candidate, and the nomination of a candidate who consents to his or her nomination; and
(e) subject to subsection 11.5(1), provide the Minister of Justice with a list of six qualified candidates who shall not be ranked on the list, in respect of each position.
Provisions applicable to nominating committee
The following provisions of The Provincial Court Act apply to the Masters Nominating Committee, with necessary modifications, in the same manner as those provisions apply to the Judicial Nominating Committee under that Act:
(a) subsection 3.1(5) (interviews and consultations);
(b) subsection 3.1(6) (confidentiality of information);
(c) subsection 3.1(7) (report to minister).
If fewer than six qualified candidates
If, in the opinion of the nominating committee, there are fewer than six qualified candidates, the committee shall certify this to the Minister of Justice and provide a list with the names of the qualified candidates.
Chief Justice and senior master consulted
The Minister of Justice shall provide a copy of the list of candidates to the Chief Justice and the senior master, who may provide comments with respect to a candidate's qualifications and personal suitability for the position, for the minister's consideration.
SENIOR MASTER
The Lieutenant Governor in Council shall appoint a person as senior master and, where the person is not a master of the court, as a master of the court, from a list of candidates that is recommended by a nominating committee convened under subsection 11.3(3).
Where an appointment is to be made under subsection (1), the Minister of Justice shall advise the chairperson of whether the nominating committee is to recommend only masters, or any person qualified under section 11.2.
A nominating committee referred to in subsection (2) has the duties, and shall proceed in the manner, set out in this Part.
Under the direction of the Chief Justice, the senior master
(a) has general supervisory powers in respect of masters in matters that are assigned to masters; and
(b) is responsible for the judicial functions of masters, including direction over sittings of masters and the assignment of judicial duties.
A person who is designated as a senior master may at any time resign as senior master and thereafter carry out the functions of a master.
GENERAL MATTERS
Every master shall take and subscribe the oath or affirmation of office in accordance with section 7, with necessary modifications.
Master to devote full time to duties
Subject to subsection (4), no master shall
(a) carry on, engage in, practise or conduct a business, trade, profession or occupation; or
(b) act as a commissioner, arbitrator, adjudicator, umpire or mediator on a matter or proceeding, except with the approval of the Chief Justice.
No master shall accept any salary, fee or other remuneration for doing any of the things mentioned in clause (1)(b).
A master acting as a commissioner, arbitrator, adjudicator, umpire or mediator under clause (1)(b) may receive reasonable expenses.
A newly appointed master may with the approval of the Chief Justice be given a reasonable period of time to wind up his or her practice of law or any other business, commercial or professional activities.
Holding office during good behaviour
A master shall hold office during good behaviour and may be removed only in accordance with the provisions of this Part.
A master may resign from his or her office by delivering a signed letter of resignation to the Chief Justice, and the Chief Justice shall deliver it to the Minister of Justice.
Resigning master remains seized, etc.
Subsection 6(1) (continuation of matters before resigning judges) and subsection 6(2) (death etc. of judge) of The Provincial Court Act apply to a master, with necessary modifications.
The senior master shall reside in, or in the vicinity of, The City of Winnipeg.
Upon appointment, a master shall reside in, or in the vicinity of, the judicial centre that the Lieutenant Governor in Council, with the recommendation of the Minister of Justice after consultation with the Chief Justice, may direct.
Where a master establishes a residence in accordance with a direction made under subsection (2), the master shall not afterwards
(a) be directed to move the residence to, or to the vicinity of, another judicial centre unless the master consents to the move; or
(b) move the residence to, or to the vicinity of, another judicial centre unless the Lieutenant Governor in Council, with the recommendation of the Minister of Justice after consultation with the Chief Justice, approves the move.
A master has jurisdiction as provided by statutes, regulations made under statutes or the rules.
Provincial court judge a master
A judge of the Provincial Court of Manitoba (Family Division) is ex officio a master and may, as directed by the Chief Justice, act as a master.
DIVISION 3
COMPENSATION
Provisions applicable to masters
Subsections 11(1) (vacation leave and sick leave) and 11(2) (additional leave) of The Provincial Court Act apply, with necessary modifications, with respect to a master in the same manner as those provisions apply to a judge of the Provincial Court.
Judicial Compensation Committee
The Judicial Compensation Committee established under subsection 11.1(1) of The Provincial Court Act shall, in addition to its duties under that Act, review, determine and report to the Minister of Justice on, the salaries and benefits payable to masters, including pensions, vacations, sick leave, travel expenses and allowances, and the following provisions of that Act apply, with necessary modifications, to the Judicial Compensation Committee:
(a) subsection 11.1(1) (compensation committee established);
(b) subsection 11.1(2) (composition);
(c) subsection 11.1(3) (powers).
The Judicial Compensation Committee shall review and report to the Minister of Justice with respect to masters under subsection (1) at the same time as it does so with respect to judges of the Provincial Court under subsection 11.1(1) of The Provincial Court Act, and the following provisions of that Act apply with necessary modifications to the report of the Judicial Compensation Committee with respect to masters:
(a) subsection 11.1(4) (minister to table report);
(b) subsection 11.1(5) (referral of report to committee);
(c) subsection 11.1(6) (implementation of report).
DIVISION 4
COMPLAINTS ABOUT MASTERS
Any person may make a complaint to the Chief Justice alleging misconduct by a master or the incapacity of a master and the complaint shall be dealt with in accordance with this Part.
A complaint shall be in writing and signed by the complainant.
Upon request, the administrator shall arrange for the provision of assistance to any person in the preparation of a complaint.
Chief Justice may designate judge
The Chief Justice may designate a judge, other than a judge who is a member of the board, to deal with the complaint as set out in this Part.
Within seven days after receiving the complaint, the Chief Justice shall give a copy of the complaint to the master who is the subject of the complaint and advise the master as to the name of the judge who shall deal with the complaint.
The Chief Justice may reassign a master who is the subject of a complaint to administrative duties or to a different judicial centre until the complaint is finally disposed of.
Investigation of other matters
In addition to investigating a complaint received under subsection 11.18(1), the Chief Justice or the judge designated by the Chief Justice, may, on his or her own initiative, investigate any matter respecting misconduct by a master or the incapacity of a master that comes to his or her attention, and the matter shall be dealt with as a complaint under this Part.
After receiving a complaint, the Chief Justice, or the judge designated by the Chief Justice, may
(a) resolve the complaint, if he or she obtains the written agreement of the complainant and the master;
(b) if he or she is of the opinion that there is no basis for the complaint or that a more appropriate avenue should be pursued by the complainant, advise the complainant of that fact; or
(c) refer the complaint in writing to the board for investigation.
Complaints referred directly to board
Despite subsection (1), the Chief Justice, or the judge designated by the Chief Justice, shall refer a complaint to the board if
(a) the complaint alleges that a master has been charged with an indictable offence; or
(b) in the opinion of the Chief Justice, or the judge designated by the Chief Justice, the alleged misconduct by the master may amount to conduct prejudicial to the administration of justice that brings the judicial office into disrepute.
The Chief Justice, or the judge designated by the Chief Justice, shall give the complainant and the master who is the subject of the complaint notice in writing of the decision under subsection (1) within 60 days after the date the complaint was received, and the notice to the complainant shall include information about referring the complaint to the board under subsection (4).
Referral to board by complainant
A complainant who is dissatisfied with a decision made under clause (1)(b) or who has not been notified within the time period referred to in subsection (3) may, in writing, refer the complaint to the board within 30 days of receiving a copy of the decision, or of the expiry of the time period, as the case may be.
INVESTIGATION BY JUDICIAL INQUIRY BOARD
The Judicial Inquiry Board established under section 32 of The Provincial Court Act shall, in addition to its duties under that Act, also investigate complaints alleging misconduct by masters or incapacity of masters and conduct proceedings before the Masters Judicial Council when charges are laid.
Section 32 of The Provincial Court Act applies when the board is investigating complaints about masters.
On referral of a complaint under this Part, the board shall consider the matter and may conduct such investigation as it considers appropriate.
Section 33 (preliminary investigation) and section 34 (investigation of other matters) of The Provincial Court Act apply, with necessary modifications, to an investigation by the board on referral of a complaint about a master in the same manner as those sections apply to an investigation by the board on referral of a complaint about a judge of the Provincial Court, and in those provisions
(a) a reference to the Chief Judge shall be read as a reference to the Chief Justice;
(b) a reference to a judge shall be read as a reference to a master; and
(c) a reference to the council shall be read as a reference to the Masters Judicial Council established under subsection 11.24(1).
After considering the complaint, the board may
(a) resolve the complaint, if it obtains the written agreement of the complainant and the master;
(b) decide that no further action is required with respect to the complaint; or
(c) formulate a charge of misconduct or incapacity against the master, stating the grounds for the charge.
If a charge is formulated under clause (3)(c), the board shall lay the charge before the council.
The following provisions of The Provincial Court Act apply, with necessary modifications, if a charge is formulated under clause (3)(c), in the same manner as these provisions apply if a charge is formulated against a judge of the Provincial Court:
(a) subsection 35(3) (charge public, subject to exception);
(b) subsection 35(4) (notice of decision);
(c) subsection 35(5) (board's decision final);
(d) subsection 36(1) (reassignment or suspension);
(e) subsection 36(2) (appeal of suspension without pay);
(f) subsection 36(3) (stay pending appeal);
(g) subsection 36(4) (powers of court on appeal);
and in those provisions
(h) a reference to the Chief Judge shall be read as a reference to the Chief Justice;
(i) a reference to a judge shall be read as a reference to a master; and
(j) a reference to the council shall be read as a reference to the Masters Judicial Council.
MASTERS JUDICIAL COUNCIL ESTABLISHED
The Masters Judicial Council is established to adjudicate charges that are laid against masters under subsection 11.23(4).
The council shall be composed of the following six members:
(a) three persons, each of whom is a judge of the court, as designated by the Chief Justice;
(b) the President of The Law Society of Manitoba, or another member of the Law Society designated by the President;
(c) two persons who are not lawyers, judges or retired judges, masters or retired masters, appointed by the Lieutenant Governor in Council on the recommendation of the Minister of Justice.
The following persons are not eligible to be members of the council:
(a) a judge designated by the Chief Justice under subsection 11.18(4) with respect to the complaint in question;
(b) a member of the board;
(c) an employee in the civil service as defined in The Civil Service Act.
A member of the council under clause (2)(a) or (b) holds office until the council completes all matters with respect to a particular charge or set of charges against a master.
A member of the council appointed under clause (2)(c) shall hold office for a three-year term and may be reappointed for one further three-year term.
A member of the council appointed under clause (2)(c) continues to hold office after the expiry of his or her term until the member is reappointed or a successor is appointed.
Judicial member to be chairperson
The members of the council shall choose a member designated under clause (2)(a) to be the chairperson of the council.
The chairperson is entitled to vote, and may cast a second deciding vote if there is a tie.
Six members of the council constitute a quorum and a decision of the council may be made by a majority of the votes cast.
The following provisions of The Provincial Court Act apply, with necessary modifications, to the Masters Judicial Council:
(a) subsection 37(12) (participation by phone);
(b) subsection 37(13) (engagement of counsel);
(c) subsection 37(14) (powers and protection under Evidence Act);
(d) subsection 37(15) (remuneration and expenses).
ADJUDICATION BY MASTERS JUDICIAL COUNCIL
When a charge against a master is laid before the council under subsection 11.23(4), the council shall hold a hearing to adjudicate the charge in accordance with this Part.
On receiving a copy of the charge, the administrator shall
(a) ensure that the Chief Justice is promptly notified that the council is being convened; and
(b) promptly notify all members of the council that the council is being convened.
The following provisions of The Provincial Court Act apply, with necessary modifications, to an adjudication of a charge against a master by the Masters Judicial Council in the same manner as those provisions apply to an adjudication of a charge against a provincial court judge by the Judicial Council:
(a) subsections 39(3) to (11) (hearing);
(b) section 39.1 (dispositions);
(c) section 39.2 (costs);
(d) section 39.3 (reasons for decision);
(e) section 39.4 (retirement or removal);
(f) section 39.5 (costs if resigns or retires);
and in those provisions
(g) a reference to a judge shall be read as a reference to a master;
(h) a reference to the council shall be read as a reference to the Masters Judicial Council; and
(i) a reference to the Chief Judge shall be read as a reference to the Chief Justice.
The master against whom a decision was made or the board may, on a question of law, appeal to The Court of Appeal a decision of the council under the following provisions:
(a) clause 11.25(3)(b) (dispositions by council);
(b) clause 11.25(3)(c) (costs);
(c) clause 11.25(3)(f) (costs if resigns or retires).
Subsections 39.6(2) and (3) of The Provincial Court Act apply to an appeal to The Court of Appeal, with necessary modifications, and
(a) a reference to a judge shall be read as a reference to a master; and
(b) a reference to the council shall be read as a reference to the Masters Judicial Council.
COMPLAINTS ABOUT SENIOR MASTER
Suspension of senior master during investigation
If the board lays a charge against the senior master before the council, the Chief Justice may, in addition to exercising the powers referred to in clause 11.23(5)(d) (reassignment or suspension), suspend the senior master as senior master
(a) with pay; or
(b) without pay, if in the opinion of the Chief Justice, the alleged misconduct may amount to conduct prejudicial to the administration of justice that brings the judicial office into disrepute;
until the council makes a decision with respect to the charge.
If the senior master is suspended under clause (1)(b), he or she may appeal the suspension to The Court of Appeal, and clauses 11.23(5)(f) and (g) apply, with necessary modifications.
Suspension of senior master after hearing
In addition to making a disposition referred to in clause 11.25(3)(b) or (c) with respect to the senior master as senior master, the council may also
(a) suspend the senior master as senior master with pay for any period, or without pay for a period up to 30 days; and
(b) recommend to the Minister of Justice that the appointment of the senior master as senior master be revoked and, in that case, suspend the senior master until his or her appointment as senior master is revoked under subsection (4).
Revocation of appointment as senior master
If the council makes a decision under clause (3)(b) and an appeal from the suspension has been dismissed, or the time allowed for an appeal has expired, the Lieutenant Governor in Council shall revoke the appointment of the senior master as senior master.
DIVISION 5
MISCELLANEOUS MATTERS
The Minister of Justice may appoint a civil servant as administrator for the purpose of performing the duties of the administrator under this Part, including
(a) providing administrative services for the Masters Nominating Committee;
(b) providing administrative services relating to the complaint process as set out in this Part, as the Chief Justice, his or her designate, the board or the council may require;
(c) providing information to the public about the complaint process; and
(d) receiving and giving notices and other documents on behalf of the Chief Justice or his or her designate under this Part.
Administrator also for Judicial Council
The administrator appointed under subsection (1) may be the administrator referred to in section 38 of The Provincial Court Act.
Section 39.8 of The Provincial Court Act applies, with necessary modifications, with respect to a complaint about a master.
Annual report by Chief Justice, board and council
The Chief Justice, the board and the Masters Judicial Council shall each report annually to the Minister of Justice with respect to complaints about masters, and section 39.9 of The Provincial Court Act applies, with necessary modifications, with respect to these reports.
Section 39.10 of The Provincial Court Act applies, with necessary modifications, with respect to giving notices or other documents under this Part.
The following heading is added before section 12:
PART IV.1
OTHER OFFICERS OF THE COURT
The centered heading "GENERAL PROVISIONS" is added before section 14.
A person appointed as a master or senior master, as the case may be, before the coming into force of this section, is deemed to have been appointed a master or senior master, as the case may be, under this Act.
Until the report of the Judicial Compensation Committee with respect to masters is implemented, a master or senior master shall continue to be paid the salary and receive the benefits as established under The Civil Service Act.
Consequential amendment, C.C.S.M. c. F175
Clause (e) of the definition "judicial administration record" in section 1 of The Freedom of Information and Protection of Privacy Act is amended by striking out "or the Judicial Council established under The Provincial Court Act" and substituting ", the Judicial Council established under The Provincial Court Act or the Masters Judicial Council established under The Court of Queen's Bench Act".
This Act comes into force on a day fixed by proclamation.