Manitoba Committee Hansard — 4 April 2024 (Legislative Affairs Committee, Sitting 3, 43rd Legislature, 1st Session)

43-1-la3

Manitoba — Debates (Hansard)

First Session – Forty-Third Legislature of the Legislative Assembly of Manitoba Standing Committee on Legislative Affairs Chairperson Mintu Sandhu Constituency of The Maples Vol. LXXVIII No. 3 - 10 a.m., Thursday, April 4, 2024 ISSN 1708-668X

MANITOBA LEGISLATIVE ASSEMBLY Forty-Third Legislature Member Constituency Political Affiliation ALTOMARE, Nello, Hon. Transcona NDP ASAGWARA, Uzoma, Hon. Union Station NDP BALCAEN, Wayne Brandon West PC BEREZA, Jeff Portage la Prairie PC BLASHKO, Tyler Lagimodière NDP BRAR, Diljeet Burrows NDP BUSHIE, Ian, Hon. Keewatinook NDP BYRAM, Jodie Agassiz PC CABLE, Renée, Hon. Southdale NDP CHEN, Jennifer Fort Richmond NDP COOK, Kathleen Roblin PC CROSS, Billie Seine River NDP DELA CRUZ, Jelynn Radisson NDP DEVGAN, JD McPhillips NDP EWASKO, Wayne Lac du Bonnet PC FONTAINE, Nahanni, Hon. St.

Johns NDP GOERTZEN, Kelvin Steinbach PC GUENTER, Josh Borderland PC HIEBERT, Carrie Morden-Winkler PC JACKSON, Grant Spruce Woods PC JOHNSON, Derek Interlake-Gimli PC KENNEDY, Nellie Assiniboia NDP KHAN, Obby Fort Whyte PC KINEW, Wab, Hon. Fort Rouge NDP KING, Trevor Lakeside PC KOSTYSHYN, Ron, Hon. Dauphin NDP LAGASSÉ, Bob Dawson Trail PC LAMOUREUX, Cindy Tyndall Park Lib. LATHLIN, Amanda The Pas-Kameesak NDP LINDSEY, Tom, Hon. Flin Flon NDP LOISELLE, Robert St. Boniface NDP MALOWAY, Jim Elmwood NDP MARCELINO, Malaya, Hon. Notre Dame NDP MOROZ, Mike River Heights NDP MOSES, Jamie, Hon. St.

Vital NDP MOYES, Mike Riel NDP NARTH, Konrad La Vérendrye PC NAYLOR, Lisa, Hon. Wolseley NDP NESBITT, Greg Riding Mountain PC OXENHAM, Logan Kirkfield Park NDP PANKRATZ, David Waverley NDP PERCHOTTE, Richard Selkirk PC PIWNIUK, Doyle Turtle Mountain PC REDHEAD, Eric Thompson NDP SALA, Adrien, Hon. St. James NDP SANDHU, Mintu The Maples NDP SCHMIDT, Tracy, Hon. Rossmere NDP SCHOTT, Rachelle Kildonan-River East NDP SCHULER, Ron Springfield-Ritchot PC SIMARD, Glen, Hon. Brandon East NDP SMITH, Bernadette, Hon.

Point Douglas NDP STEFANSON, Heather Tuxedo PC STONE, Lauren Midland PC WASYLIW, Mark Fort Garry NDP WHARTON, Jeff Red River North PC WIEBE, Matt, Hon. Concordia NDP WOWCHUK, Rick Swan River PC

33 LEGISLATIVE ASSEMBLY OF MANITOBA THE STANDING COMMITTEE ON LEGISLATIVE AFFAIRS Thursday, April 4, 2024 TIME – 10 a.m. LOCATION – Winnipeg, Manitoba CHAIRPERSON – MLA Mintu Sandhu (The Maples) VICE-CHAIRPERSON – Mrs. Rachelle Schott (Kildonan-River East) ATTENDANCE – 6 — QUORUM – 4 Members of the committee present: Hon. Mr. Wiebe Messrs. Balcaen, Goertzen, MLAs Moroz, Sandhu, Mrs.

Schott Substitutions: MLA Moroz for MLA Maloway PUBLIC PRESENTERS: Kristen Worbanski, Provincial Judges Association of Manitoba MATTERS UNDER CONSIDERATION: Report and Recommendations of the Judicial Compensation Committee, dated November 21, 2023 * * * Clerk Assistant (Ms. Katerina Tefft): Good morning. Will the Standing Committee on Legislative Affairs please come to order. Your first item of business is the election of a Chairperson. Are there any nominations? Hon. Matt Wiebe (Minister of Justice and Attorney General): I'd like to nominate MLA Sandhu. Clerk Assistant: MLA Sandhu has been nominated.

Are there any other nominations? Hearing no other nominations, MLA Sandhu, will you please take the Chair. The Chairperson: Good morning, everyone. Committee Substitution The Chairperson: I would like to inform the committee that, under rule 84(2), the following member substitution has been made for this com - mittee, effective immediately: MLA Moroz for MLA Maloway. * * * The Chairperson: Is the committee ready? Our next item of business is the elect ion of a Vice-Chairperson. Are there any nominations? MLA Mike Moroz (River Heights): I'd like to nominate MLA Schott. The Chairperson: Mr. Schott has–sorry. Ms.

Schott has been nominated. And–is there any other nominations? Hearing no other nominations, Ms. Schott is elected Vice-Chairperson. This meeting has been called to consider the Report and Recommendations of the Judicial Com - pensation Committee, dated November 21, 2023. Before we begin, I would like to provide the com- mittee with some back ground infor mation on the process following in the past when dealing with the JCC report. At the previous meetings, a repre sen- tative from the Prov incial Judges Association of Manitoba have appeared by leave for the com mittee. Ms.

Kristen Worbanski of the Prov incial Judges Association of Manitoba has been asked–has asked permission to speak to the committee. Is there agreement from the committee to hear a presentation from Ms. Worbanski? [Agreed] I would like to remind members that, prior to concluding consideration of this report, pursuant to the provision of

section 11.1(27) of The Prov incial Court Act, a motion will be required in order to adopt or reject some or all of the recom mendations in the JCC report. Are there any sug gestions as to how long the committee this morning sits?

34 LEGISLATIVE ASSEMBLY OF MANITOBA April 4, 2024 Mr. Kelvin Goertzen (Steinbach): Until the work of the committee is complete. The Chairperson: Can you repeat that again, please? An Honourable Member: Until the work of the committee is complete. The Chairperson: It has been suggested that –until the report of the committee is completed, we sit then. Agreed? [Agreed] * (10:10) I will now call on Ms. Worbanski to make her presentation. Ms. Worbanski, do you have any written material to be distributed? Kristen Worbanski (Provincial Judges Association of Manitoba): Pardon me?

The Chairperson: Do you have any written material to be distributed? K. Worbanski: I do. Yes. Thank you. Good morning, Mr. Chairperson and members of the committee. I am Kris Worbanski, counsel for the Prov incial Judges Association of Manitoba. You have before you for consideration the report and recom mendations of the 2023 Judicial Compensation Committee. I'll refer to it as the 2023 JCC. The 2023 JCC made recommendations about ap- propriate compensation for judges for the period of April 1, 2023 to March 31, 2026. This JCC process is required by our constitution.

It has been recognized that whenever the expendi- ture of public funds is involved, the decision is inherently political. The Supreme Court of Canada has determined that in orde r to ensure the inde pen- dence of the judiciary, the setting of compensation for judges must be depoliticized. In order to remove the politics to the greatest extent possible, each province must put in place an institutional sieve, a filter, to depoliticize the setting of compensation for judges.

The gov ernment must make its proposals to an inde pendent, objective and effective tribunal, a JCC, which then makes recom - mendations about what constitutes appro priate com- pensation for judges. In Manit oba, this standing com mittee, and ultimately the Legislature, then considers the JCC's report and recom mendations and may choose to implement or vary them. If the decision is to vary the recommendations, the Legislature must justify its decision by providing legitimate reasons for doing so, which are based upon a reasonable factual foundation. The Provincial Court Act sets out the JCC process for Manitoba.

It requires the appoint ment of a three - person panel with a nominee by each of the asso- ciation and the Province, who then agree on a chair - person. The 2023 JCC was chaired by Mr. Blair Graham, who is a very well -respected labour lawyer and arbitrator in Manitoba. This was the first JCC to be chaired by Mr. Graham. He had the benefit, however, of working with nominees of both the association and the Province, each of which have sat on multiple successive past committees.

The 2023 JCC held hearings in the summer of 2023 and the association and the Province each provided detailed written submissions to the JCC, and the committee then heard oral argument from both the Province and the association. The association provided an expert report–expert economic report from Dr. Trevor Tombe, who is a professor in the department of economics at the U ni- versity of Calgary. Dr. Tombe attended the hearing and was cross - examined by the Province's counsel. The Province also provided the JCC with significant economic data as part of its own submission.

The Province's repre - sentatives, both its counsel and the civil servants who were tasked with preparing the Province's sub- missions, worked diligently to advance the Province's position as to what compensation was appropriate for judges during the years in question. Following its deliberations, the 20 23 JCC provided a unanimous report as between the chair - person, the Province's nominee and the association's nominee.

The JCC report makes it clear that all of the submissions it received were carefully considered by the committee in light of the factors that are identified in The Provincial Court Act for their consideration. I'll focus on the most sig nificant recom men- dation, which concerns judicial salaries for the three fiscal years beginning April 1, 2023. The JCC recom mended a salary of $327,000 effective April 1, 2023, with increases based on the percentage increase in the average weekly earnings for Manitoba in each of 2024 and 2025 for the three years of the mandate period.

The JCC determined that the salary for 2023 was a fair, reas onable and appro priate increase based on

April 4, 2024 LEGISLATIVE ASSEMBLY OF MANITOBA 35 all of the objective evidence presented to it and in light of the six factors identified for its consideration in The Provincial Court Act. One sig nificant con sideration in the act is the three-province or a designated average. The act provides that if the salary figure recommended by the JCC for a given year is less than or equal to the designated average certified by the chairperson of the JCC, then it is binding. The designated average is the average of salaries paid to judges in the three provinces of Nova Scotia, New Brunswick and Saskatchewan.

For 2023, the designated average was $322,503. I have provided you today with an updated chart which shows the most cu rrent informa tion about judicial salaries across the country–that's the handout that was just circulated. You will see that justices of the Court of King's Bench are paid $396,700 for 2024, up from $383,700 in 2023. For 2023, Nova Scotia's judges are paid a salary equal to 80 per cent of the federal salary, and likewise for New Brunswick, judges there are paid 80 per cent of the federal salary.

Saskatchewan judges are paid 95 per cent of the prior year's federal salary, $353,590, substan tially more than what has been recommended for judges by the 2023 JCC in Manitoba. The recom mendation for $327,000 means Manitoba's judicial salary would rank fifth among the 10 provinces, only very slightly ahead of PEI, which pays the national average, and below the judicial salaries in the Yukon and the Northwest Territories.

Notably, this recommendation is consistent with the government's own position before the JCC, that Manitoba judges should be paid a salary that ranks in fifth place among the salaries of judges in other provinces. All indications are that the same will be true in 2024 and 2025, based on the JCC's recommendations for increases to Manitoba judicial salaries on the percentage increases in average weekly earnings.

Consistent with many successive JCCs, the com- mittee also recom mended the continuation of the percentage salary differential payable to the associate chief judges and the chief judge, as well as interest on retroactive salary recommendations. And finally, the JCC recommended a freeze in the amount of the Province's contribution to the asso - ciation's costs for the process. In other words, the same amount as had been recom mended by the 2020 JCC, which was the prior committee. In closing, I would like to make just some general comments about the importance of the judicial compensation process.

As I said at the outset, both parties put forward extensive written and oral sub- missions to the JCC. It is critical that these recommen- dations are respected or all that work is for naught. I will reiterate some thing counsel says each time counsel for the association speaks to these JCC reports. The–there are 43 judges. If you imple - ment something other than what was recom mended, it's not going to impact the Province's bottom line in any meaningful way. As such, whatever you decide, your decision is symbolic more than anything else, and there are two types of symbolism to choose from, we would submit.

The first is respect for the in dependence of the judiciary and the sig nificance of the constitutionally mandated Judicial Compensation Committee process. The second is the desire of gov ernment to send a message to groups with which the Province is engaged in collective bargaining. The very purpose of the com mittee process is depoliticize the process of setting judicial compen - sation. Now is not the time to look at this politically. The Province's position was carefully considered by the JCC, and all of its arguments were taken into account in issuing the JCC's r ecommendations.

The JCC report is unanimous, well reasoned and takes into account the reasoning of past JCCs in Manitoba, as well as the position advanced by the Province. We urge you to respect the process and the need to protect judicial in dependence and to depoliticize the setting of judicial remuneration. You can do that by accepting in full the recommendations of this very experienced, independent and objective panel. On behalf of the association, I want to thank the committee for granting us leave to speak on this im - portant matter, and if there are questions, I would do my best to answer them. Thank you.

The Chairperson: Thank you for your presentation. Are there any questions from the committee? No questions.

36 LEGISLATIVE ASSEMBLY OF MANITOBA April 4, 2024 Thank you, Ms. Wo rbanski, for your pre senta- tion. We will now consider the report and recom men- dations of the JCC. Does the hon ourable minister have any opening statement? Mr. Wiebe: I want to acknowl edge first that we are meeting today on Treaty 1 territory, th e ancestral lands of the Anishinaabe, the Inuit, the Dakota and the national homeland of the Red River Métis people. * (10:20) Today and every day, we are committed to working in partnership with Indigenous peoples in the spirit of truth and reconciliation.

I'm pleased to offer these short intro ductory comments on the Judicial Compensation Com mittee report. Let me start by thanking Ms. Worbanski for making herself available to present to the com mittee and offering to answer any questions that folks might have. It's truly ap preciated by members of the com - mittee and all members of the Legislature. The 12th Judicial Compensation Com mittee was formed pursuant to The Prov incial Court Act in the spring of '23. It consisted of Mr. Blair Graham, Mr. Robert Simpson and Mr. David Shrom.

Briefs were exchanged in June and July of '23 and oral submissions were completed on July 18 and 19, 2023. The report was tabled intersessionally with the Clerk of the Legis lative Assembly on December 21, 2023, and it is now being placed before the Standing Committee on Legislative Affairs. The Judicial Compensation Com mittee follows the rules set out in The Prov incial Court Act.

The committee is designated to –sorry, the com mittee is designed to ensure the protection of judicial indepen- dence, prevents governments from negotiating directly with judges and creates an independent body to make recommendations to the Legislature. Courts have ruled that legis lation that affects judges' compensation affects judicial in dependence. As a very serious matter, we respect the principle of an in dependent judiciary, and therefore support the work of the committee. This–do I do the motion now? [interjection] No. Okay. Thank you very much to the committee.

The Chairperson: We thank the honourable minister. Does the official op position critic have an opening statement? Mr. Goertzen: I'm not the official opposition critic; that role is being filled very well by my friend from Brandon West, but he is –offered to cede the floor to me briefly for some–from comments on this before we move forward. So I welcome my friend from Concordia to the long list of ministers of Justice who have now dealt with this process, which is sometimes unusual and sometimes a little awkward.

Because it can be awkward when we're setting salaries for those who are officials who can't in other ways advocate for their own salaries or strike or have other sort of labour rights that are often inherent to workers. In some wa ys it's analogous –although not perfectly–to the process by which MLAs go through for their own salaries.

I think that in Manitoba we've found the right place for MLA salaries in that it's independent and it's hands -off from MLAs determining their own s alaries, and I think, by and large, people appreciate and support that up until the point that there's a recommendation for an increase of MLA salaries, and they want us to inter fere and to change it. But, generally, I think that the process is well respected and regarded. In a similar light, there's been lots of jurisprudence and decisions around judicial compensation.

I seem to recall in the 1990s a case out of the Maritimes, that the province might have been an intervener in–regarding judicial compensation, and a lot of the result of that case–I think it was a reference case to the Supreme Court –resulted in how we're dealing with judicial compensation now. Now this com mittee does –or the gov ernment does, I suppose –have the ability to challenge the recommendations; past gov ernments have. I believe Minister Chomiak was the minister when there was a challenge; I don't think that landed well in terms of the ultimate outcome, but a challenge was undertaken.

I think one–there might be a challenge right now under–out of British Columbia, where they're chal - lenging a J-J-C report in BC currently. Ultimately , it becomes a decision of whether or not the government feels that the recommendation is so far out of balance that it's worth undertaking that judicial process. I listened –and my colleagues did –to the sub - mission that was made, an articulate submission about

April 4, 2024 LEGISLATIVE ASSEMBLY OF MANITOBA 37 how there was a reasoned discussion and ultimately a unanimous decision by this JCC. I assume that the minister has received –with his hat as the Attorney General on–advice about whether or not it would be worth a challenge, or whether or not this was a well and balanced decision, and I suppose on that basis he's proposing that we move forward in recommending this recommendation go to the Legislature for approval, and we are prepared to see that happen exactly in that way. The Chairperson: We thank the member. Are there any questions on the report?

Seeing no further questions, does the honourable minister have a motion? Mr. Wiebe: I move THAT the Standing Committee on Legislative Affairs: accept the recommendations in

Schedule A; and recommend the same to the Legislative Assembly.

SCHEDULE A Recommendations of the Judicial Compensation Committee accepted by the Standing Committee on Legislative Affairs 1. That the annual salaries for puisne Judges of the Provincial Court of Manitoba are: (

a) April 1, 2023 to March 31, 2024 is $327,000; (

b) April 1, 2024 to March 31, 2025 – a cumulative adjustment equal to the annual percentage change in the average weekly earnings for Manitoba on April 1, 2024; (

c) April 1, 2025 to March 31, 2026 – a cumulative adjustment equal to the annual percentage change in the average weekly earnings for Manitoba on April 1, 2025. The percentage change in the average weekly earnings shall be calculated based on the percentage change over the preceding calendar year. This recommendation should apply to all who were judges as of April 1, 2023, including those who retire or otherwise leave the bench prior to implementation. 2. That the salary differentials for the chief judge and associate chief judges remain in place as of April 1, 2023.

This will mean a salary of $353,160 for the chief judge and $343,350 for the associate chief judges for the 2023 fiscal year. This recommendation shall apply to all judges who were either a chief judge or an associate chief judge as of April 1, 2023, including those who retire or otherwise leave the bench prior to imple- mentation. 3.

Simple interest shall be paid from April 1, 2023, to the date of retroactive payment of salary increases including the differentials for the administrative judges and related per diems for senior judges, in accordance with the relevant pre-judgment and post-judgment interest rates as set out in The Court of King's Bench Act; 4. Pre-judgment interest shall be payable from April 1, 2023, to the date the recommendations are imple mented, whether by vote of the Legislature or by virtue of

section 11.1(29) of the act, and post-judgment interest should be payable from that date to the date that the judges are paid the resulting retroactive adjustments. 5. Interest shall be paid within 60 days of the date that judges are paid the resulting retroactive adjustments. 6. The Province shall pay 75 per cent of the asso - ciation's reasonable legal costs to a maximum aggregate of $55,000. 7. The Province shall pay 100 per cent of the asso - ciation's disbursements, including the costs of experts, to a maximum of $30,000. The Chairperson: It has been moved by Honourable Mr. Wiebe THAT the Standing Committee on Legislative Affairs: accept the recommendation in

Schedule A; and recommendation–recommend the same to the Legislative Assembly. An Honourable Member: Dispense. The Chairperson: Dispense. Is the committee ready for the–[interjection] The motion is in order. * (10:30) The floor is open for the question. Is there any question? Seeing no questions , is the com mittee ready for the question?

38 LEGISLATIVE ASSEMBLY OF MANITOBA April 4, 2024 An Honourable Member: Question. The Chairperson: Shall the motion pass? Some Honourable Members: Pass. The Chairperson: The motion is accordingly passed. If there are no further questions or comments, is it the will of the com mittee to report to the Hou se that it has completed its con sideration of the Report and Recommendations of the Judicial Compensation Committee, dated November 21, 2023? [Agreed] The hour being 10:30, what is the will of the com- mittee? Some Honourable Members: Rise. The Chairperson: Committee rise. COMMITTEE ROSE AT: 10:30 a.m.

The Legislative Assembly of Manitoba Debates and Proceedings are also available on the Internet at the following address: http://www.manitoba.ca/legislature/hansard/hansard.html

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Collection	Manitoba — Debates (Hansard)
Citation	43-1-la3
Type	hansard
Volume / chapter	43rd 1st hansardpdf la3.pdf
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	0f85c09fb271cfdf9c09c0be0c4dadddee0125a2

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