First

Session, 50th General Assembly

Elizabeth II, 2022

BILL 44

AN ACT TO AMEND THE

PROVINCIAL COURT ACT, 1991

Received

and Read the First Time ................................................................

Second

Reading ............................................................................................

Committee .....................................................................................................

Third

Reading ...............................................................................................

Royal

Assent .................................................................................................

HONOURABLE JOHN

HOGAN, QC

Minister of Justice

and Public Safety and Attorney General

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Provincial

Court Act, 1991 to

require that the salary of

judges be adjusted annually based on the average annual salary of provincial

court judges in Nova Scotia, Prince Edward Island and New Brunswick, including

retroactive salary increases where applicable;

require that the

Lieutenant-Governor in Council appoint a tribunal to report on salary and benefits

of judges on or before June 1, 2022, on or before June 1, 2026 and on or before

June 1 in every fourth year after that;

prescribe the composition of a

tribunal ;

require that a tribunal submit

a report to the minister and the president of the Newfoundland and Labrador Association of Provincial Court Judges on

or before December 1, 2022, on or before December 1, 2026 and on or before December

1 in every fourth year after that;

allow the minister or the

Newfoundland and Labrador Association of

Provincial Court Judges to apply for clarification from a tribunal

within 7 days of receiving a report;

require that the

Lieutenant-Governor in Council approve, vary or reject a tribunal's report

within 60 days of the minister receiving the report;

provide that where the Lieutenant-Governor

in Council does not approve, vary or reject a tribunal's report within 60 days,

the recommendations of the tribunal shall be considered to be accepted where the

recommendations respecting salary are consistent with

section 27.1; and

incorporate gender-neutral language.

A BILL

AN ACT TO AMEND THE PROVINCIAL COURT ACT,

Analysis

S.2 Amdt .

Definitions

2. S.5 Amdt .

Appointment of judges

S.5.1 Amdt .

Bilingual judges

S.5.2 Amdt .

Part time judges

S.6 Amdt .

Oaths

S.7 Amdt .

Chief judge

S.7.1 Amdt .

Associate chief judge

S.9 Amdt .

Other employment

S.11 Amdt .

Resignation

S.12 Amdt .

Retirement

S.13 Amdt .

Districts

S.14 Amdt .

Transfers

S.16 Amdt .

Judicial council

S.19 Amdt .

Complaints Review Committee

S.20 Amdt .

Judicial complaints panel

S.23 Amdt .

Powers of committee

S.25.1 Amdt .

Guilty plea by respondent

S.25.2 Amdt .

Powers of adjudication tribunal

S.25.3 Amdt .

Filing and publication of decisions

S.26 Amdt .

Director of Court Services, clerks, etc.

S.27 Amdt .

Duties of clerks

S.27.1 Added

Judges' salary

S.28 R&S

Appointment of tribunal

S.28.1 Amdt .

Tribunal to report on minister's request

S.28.2 R&S

Tribunal's report

S.33 Amdt .

Continuance of proceeding

27. Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

SNL1991 c15

as amended

(1) Section 2 of the Provincial Court Act, 1991 is amended by renumbering paragraph (

a) as paragraph (a.1) and by adding immediately before paragraph (a.1) the

following:

(a) " associate chief

judge" means t he associate chief judge appointed

under

section 7.1;

(2) Paragraph 2(

f) of the Act is repealed and the

following substituted:

(f) " judge "

means a Provincial Court judge appointed under this Act and includes

the associate chief judge and the chief judge;

2. Subsection 5(2) of the Act is amended by

deleting the words "he or she" and substituting the words "the

person".

3. Subsection 5.1(2) of the Act is repealed and

the following substituted:

(2) A judge appointed under subsection (1) shall

(

a) hold office for the term set by the Lieutenant-Governor in

Council, but the appointment is subject to the judge remaining a judge of the

provincial court of the province in which the judge was appointed;

(

b) have the powers and duties given by

section 4 to a judge

appointed under

section 5;

(

c) be paid for services as if the judge were a judge appointed

under

section 5, in the proportion that the number of days of service bears to

a full year of service;

(

d) be reimbursed for the expenses incurred in performing the

judge's duties; and

(

e) be subject to the authority of the chief judge set out in

section

(1) Subsection 5.2(2) of the Act is amended by

(

a) deleting the words

"him or her" and substituting the words "the person"; and

(

b) deleting the words

"he or she" and substituting the words "the person".

(2) Subsection 5.2(5) of the Act is repealed and

the following substituted:

(5) A person who is selected under subsection

(3) is not entitled to benefits or remuneration in addition to that provided for in

subsection (4), but may be paid travel and other expenses associated with the

person's work as a judge.

(3) Subsection 5.2(9) of the Act is amended by

(

a) deleting the words

"his or her" and substituting the words "the person's"; and

(

b) deleting the words

"him or her" and substituting the words "to the person".

5. Subsection 6(1) of the Act is amended by

deleting the words "his or her".

6. Subsection 7(3) of the Act is amended by

deleting the words "his or her office".

(1) Subsection 7.1(2) of the Act is amended by

deleting the words "to him or her".

(2) Subsection 7.1(3) of the Act is amended by

(

a) deleting the words

"his or her" wherever they appear and substituting the words

"the chief judge's"; and

(

b) deleting the words

"he or she" and substituting the words "the chief judge".

(3) Subsection 7.1(7) of the Act is amended by

deleting the words "his or her" and substituting the words "the

chief judge's".

8. Subsection 9(1) of the Act is repealed and the

following substituted:

Other employment

(1) A judge shall not engage in a business, trade or occupation

but shall devote the judge's whole time to the performance of duties as a

judge.

9. (1) Subsection 11(1) of the Act is amended by

deleting the words "his or her" and substituting the words "the

judge's".

(2) Subsection 11(2) of the Act is amended by

deleting the words "his or her" and substituting the words "the

chief judge's".

10. (1) Subsection 12(2) of the Act is amended by

deleting the words "his or her".

(2) Subsection 12(3) of the Act is amended by

deleting the words "his or her" and substituting the words "the

judge's".

11. Subsection 13(2) of the Act is amended by

deleting the words "his or her" and substituting the words "the

judge's".

12. Subsection 14(1) of the Act is amended by

deleting the words "his or her" and substituting the words "the

judge's".

(1) Paragraph 16(5 )(

b) of the Act is amended by deleting the words "he or she" and

substituting the words "the member".

(2) Subsection 16(5.1) of the Act is amended by

deleting the words "his or her" and substituting the words "the

bencher's".

14. Subsection 19(2) of the Act is amended by

deleting the words "his or her" and substituting the words "the

chief judge's".

15. Subsection 20(5) of the Act is amended by

(

a) deleting the words

"his or her" and substituting the words "the member's"; and

(

b) deleting the words

"he or she is".

16. Subsection 23(3) of the Act is amended by

deleting the words "his or her" and substituting the words "the

judge's".

17. Paragraph 25.1(2 )(

f) of the Act is amended by deleting the words "his or her" wherever

they appear and substituting the words "the judge's".

18. Paragraph 25.2(3 )(

f) of the Act is amended by deleting the words "his or her" wherever

they appear and substituting the words "the judge's".

(1) Paragraph 25.3(3 )(

b) of the Act is amended by deleting the words "his or her" and

substituting the words "the judge's".

(2) Paragraph 25.3(4 )(

c) of the Act is amended by deleting the words "his or her name" and substituting

the word "it".

20. (1) Subsection 26(3) of the Act is amended by

deleting the words "his or her".

(2) Subsection 26(4) of the Act is amended by

deleting the words "his or her" and substituting the words "the

person's".

(3) Subsection 26(5) of the Act is amended by

deleting the words "his or her" and substituting the words "the

person's".

(4) Subsection 26(6) of the Act is amended by

deleting the words "he or she" and substituting the words "the

person".

Section 27 of the Act is amended by deleting

the words "his or her" wherever they appear.

22. The Act is amended by adding immediately after

section 27 the following:

Judges' salary

27.1

(1) Effective

July 1, 2021, and on July 1 in every year after that, the annual salary of

judges, not including the chief judge and the associate chief judge, shall be

adjusted to an amount equal to the average annual salary of provincial court

judges in Nova Scotia, Prince Edward Island and New Brunswick as determined on

April 1, 2021 and on April 1 in every year after that, as applicable.

(2) Effective July 1, 2021, and on July 1 in every

year after that, the annual salary of the chief judge shall be adjusted to an

amount equal to the average annual salary of chief judges in Nova Scotia,

Prince Edward Island and New Brunswick as determined on April 1, 2021 and on

April 1 in every year after that, as applicable.

(3) Effective July 1, 2021, and on July 1 in every

year after that, the annual salary of the associate chief judge shall be

adjusted by a percentage equal to the percentage by which the annual salary of

the chief judge is adjusted under subsection (2), with retroactive effect where

applicable.

(4) For the purposes of subsections (1) and (2) where

it is determined that the average annual salary of judges or chief judges in

Nova Scotia, Prince Edward Island and New Brunswick for a prior year or years

has increased as a result of a retroactive salary increase, the adjustment of

salary shall include, with retroactive effect, an amount equal to the

difference between

(

a) the increased average

annual salary for that year or years with retroactive application; and

(

b) the average annual

salary as calculated under subsection (1) or (2).

Section 28 of the Act is repealed and the

following substituted:

Appointment of

tribunal

(1) The

Lieutenant-Governor in Council shall, on or before June 1, 2022, appoint a

tribunal consisting of 3 persons to prepare a report on the adequacy of the

salaries payable to judges, the associate chief judge and the chief judge under

this Act and on the benefits of judges, the associate chief judge and the chief

judge for the period of April 1, 2021 to March 31, 2027.

(2) The Lieutenant-Governor in Council shall

(

a) on or before June 1, 2026, appoint a tribunal

consisting of 3 persons to prepare a report on the adequacy of the salaries payable

to judges, the associate chief judge and the chief judge under this Act and on

the benefits of judges, the associate chief judge and the chief judge for the

period of April 1, 2027 to March 31, 2031; and

(

b) on or before June 1 in every fourth year after

2026, appoint a tribunal consisting of 3 persons to prepare a report on the

adequacy of the salaries payable to judges, the associate chief judge and the

chief judge under this Act and on the benefits of judges, the associate chief

judge and the chief judge for each subsequent 4 year period.

(3) A tribunal appointed under subsections (1) and

(2) shall consist of

(

a) one member designated

by the minister;

(

b) one member designated

by the judges' association; and

(

c) one member designated

by the members appointed under paragraphs (

a) and (b).

(4) The member appointed under paragraph (3 )(

c) shall be the chair of the tribunal.

(5) Where the members appointed under paragraphs (3)(

a) and (

b) are unable to agree on a member to be appointed under paragraph (3)(c),

the Lieutenant-Governor in Council shall appoint a member who shall be the chair

of the tribunal.

(6) The term of office of the members of the

tribunal appointed under this

section is 4 years.

(7) T he

Lieutenant-Governor in Council shall appoint a member to fill a vacancy on the

tribunal and that person shall serve for the balance of the term of the member

being replaced.

(8) The persons

appointed to the tribunal under this

section have the powers, privileges and

immunities of a commissioner under the Public Inquiries Act, 2006.

(9) In this

section and

sections 28.1 and 28.2, "tribunal" means the salaries and benefits

tribunal appointed under this section.

24. Subsection 28.1(3) of the Act is repealed and

the following substituted:

(3) Subsections 28.2(2)

to (6) apply to a report submitted to the minister under subsection (2).

Section 28.2 of the Act is repealed and the

following substituted:

Tribunal's report

28.2

(1) Notwithstanding

section 28.1,

(

a) the tribunal appointed under subsection 28(1)

shall review and report on the adequacy of the salaries payable to judges, the

associate chief judge and the chief judge under this Act and on the benefits of

judges, the associate chief judge and the chief judge and shall present its recommendations

together with reasons to the minister and the president of the judges'

association on or before December 1, 2022;

(

b) the tribunal appointed under subsection 28(2)

shall review and report on the adequacy of the salaries payable to judges, the

associate chief judge and the chief judge under this Act and on the benefits of

judges, the associate chief judge and the chief judge and shall present its

recommendations together with reasons to the minister and the president of the

judges' association on or before December 1, 2026 and on or before December 1

in every fourth year after that.

(2) The minister or the judges' association may

apply to the tribunal for a clarification of a matter in the report or in

respect of a matter the tribunal did not address in the report within 7 days of

receiving the report referenced in subsection (1).

(3) Where an application is made under subsection

(2), the tribunal shall consider the application and provide any clarification

within 15 days after the application is made, and the report is not

considered to be received until the clarification is provided.

(4) The

Lieutenant-Governor in Council shall approve, vary or reject a report within 60

days of the minister receiving the report under subsection (1).

(5) Where the Lieutenant-Governor in Council

varies or rejects a report under subsection (4), the Lieutenant-Governor in

Council shall provide reasons to the tribunal and to the president of the judges'

association.

(6) Where the Lieutenant-Governor in Council does

not approve, vary or reject a report within the time period prescribed in

subsection (4), the recommendations of the tribunal shall be considered to be

accepted and judges are entitled to

(

a) the salary proposed

by those recommendations, where the recommendations respecting salary are

consistent with the salary determined under

section 27.1; and

(

b) the benefits proposed

by those recommendations.

26. Subsection 33(1) of the Act is amended by

deleting the words "his or her" and substituting the words "the

judge's".

Commencement

Section 22 is considered to have come into

force on April 1, 2021.

Queen's Printer