Response of the Minister of Justice to the Report of the Special Advisor on Federal Court Prothonotaries' Compensation

This is the Government’s Response to the Report of the Special Advisor on Federal Court Prothonotaries’ Compensation, received on July 26, 2013.

Background

Prothonotaries are judicial officers of the Federal Court (FC) appointed by the Governor in Council pursuant to the Federal Courts Act. They are presently deemed to be public servants for the purposes of the Public Service Superannuation Act (PSSA) and subject to the terms and conditions of employment applicable to all Governor in Council appointees. They hold office until the age of 75 and are removable only for cause. There are currently six prothonotaries.

As judicial officers, prothonotaries enjoy the protections of the PEI Judges Case, which established a requirement that compensation of judges and judicial officers must be subject to periodic review by an “independent, objective and effective” commission: Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; see also Bodner v. Alberta, 2005 SCC 44, [2005] 2 S.C.R. 286. The first review of prothonotaries’ compensation was carried out by the Honourable George Adams in 2007-2008.

In October 2012, a second review process was established by Order in Council, and the Honourable Douglas Cunningham was appointed Special Advisor. In May 2013, Special Advisor Cunningham held a public hearing during which he received submissions from both the prothonotaries and the Government. He also received written submissions from various other individuals and organizations, including the Chief Justice of the Federal Court.

The Report of the Special Advisor was received by the Minister of Justice on July 26, 2013. A list of all his recommendations is attached at Annex 1. The two key recommendations are that 1) prothonotaries’ salary be increased from 69% to 80% of the salary of a puisne Federal Court judge’s salary (current salary would increase from $203,900 to $236,400); and 2) that prothonotaries be eligible for a maximum retirement benefit of 70% of salary after 20 years in office from the date of appointment as prothonotary, which would require an annual accrual rate of 3.5% (currently, the maximum retirement benefit is 70% of salary after 35 years of service, or 2% annual accrual).

Government Response

The Government has given the Special Advisor’s Report and recommendations careful consideration. The Government will propose compensation improvements for the prothonotaries consistent with the objectives of ensuring adequacy of compensation appropriate to the nature of their judicial office and responsibilities. However, not all of the Special Advisor’s recommendations will be implemented as proposed, for the following reasons.

In terms of salary, full implementation of the Special Advisor’s recommendation would result in the prothonotaries being paid more than military judges whose current salary, also reviewed by a separate independent process, is 76% of that of a Federal Court judge. This would be neither fair nor reasonable in light of the weighty responsibilities that military judges bear in determining criminal matters affecting individual liberty and public safety. Accordingly, the Government will propose that prothonotaries’ salaries be established at 76% rather than 80% of a Federal Court judge as the Special Advisor has recommended.

In terms of the pension recommendations, the Government has carefully examined alternative approaches to achieving the objectives of the Special Advisor’s recommendations, given the high administrative costs of providing the recommended benefits under the Public Service Superannuation Act. More broadly, the Government is of the view that the separate administration of other aspects of prothonotaries’ compensation entitlements, including periodic review of their compensation, is inefficient and duplicative.

For this reason, and to better recognize their status as judicial officers, the Government is proposing that prothonotaries’ salaries and benefits be established under the Judges Act. The Act would provide that prothonotaries receive 76%, of a Federal Court judge’s salary, effective April 1, 2012, inclusive of any adjustment for the loss of severance, which shall cease to accumulate as of that date. In addition, prothonotaries would be entitled to an annuity calculated in the same way as a judicial annuity based on the date of their appointment as a prothonotary, and would receive equivalent disability benefits, health and dental coverage. This said, current prothonotaries may opt to remain in the PSSA and continue to accrue service, and disability coverage, as currently provided. For clarity, the Government is not proposing that prothonotaries be entitled to elect supernumerary status.

The Special Advisor also made certain other recommendations, including in respect of incidental allowances and legal representational costs. The Government is not satisfied that adequacy of compensation requires that prothonotaries receive an annual incidental allowance of $3000. Of course all reasonable travel and related living expenses attendant to the exercise of the office of the prothonotary, including education and training costs, will continue to be paid.

The Government also does not regard the recommendation that the prothonotaries receive up to an additional $30,000 reimbursement for legal fees to be reasonable. The Government has already made a generous ex gratia payment in the amount of $50,000 and is of the view that this is appropriately supports their participation in the process.

For reasons of efficiency and to better recognize their status as judicial officers, the Government is further proposing that the prothonotaries be included in the Judges Act for purposes of Judges Act processes and administration. The adequacy of prothonotaries’ compensation will in future be determined by the Judicial Compensation and Benefits Commission, rather than by a separate process.  Complaints about prothonotaries’ conduct will be dealt with under the established discipline processes administered by the Canadian Judicial Council. The overall day to day administration of prothonotaries’ compensation, as well as travel and related expenses, will be assumed by the Office of the Commissioner for Federal Judicial Affairs. Their training and education will be developed and delivered through the National Judicial Institute and other established institutions.

The Government wishes to thank Mr. Cunningham for his report. The Government also wishes to acknowledge the constructive participation of the prothonotaries throughout the current process.

February 27, 2014

Annex 1: Recommendations of Special Advisor Cunningham on Federal Court Prothonotaries’ Compensation

Salary

Salary be set at 80% of the salary of a (puisne) Federal Court judge’s salary, retroactive to April 1, 2012.

Pension

  • That a prothonotary be eligible for a maximum retirement benefit after 20 years in office, taking into account all service from the date of appointment.
  • Maximum full benefit be the average of the three best consecutive years of salary, payable after 20 years in office (pro-rated for a shorter term in office).
  • If within a defined benefit arrangement that a 3.5% accrual rate be applied to the three-year average salary; if through an annuity, then the maximum benefit be pro-rated for service less than 20 years.
  • Contribution rate set at 6.85% up to YMPE and 9.2% over YMPE, with future increases subject to the independent review process.
  • Not integrated with CPP\QPP
  • All other current provisions of the PSSP continue.

Sickness and disability

  • Prothonotaries be eligible for long term disability to age 75 at level currently provided.
  • Time spent in receipt of LTD benefits be counted as pensionable service.
  • Continued entitlement to 15 days of paid sick leave per year, accrued at the rate of 1.25 days per month for each month the appointee earned at least 10 days’ pay, with no limit on the total days accumulated.
  • Chief Justice of the Federal Court may require medical certificate.
  • At the discretion of the Chief Justice of the Federal Court, prothonotaries may be granted up to 130 days of paid sick leave, once in their career, if they have insufficient accumulated sick leave. All sick leave must be exhausted, a medical certificate is required, and it may be granted in several periods.
  • No compensation will be paid for unused sick leave upon retirement/departure.

Allowances

Non-taxable annual allowance of $3,000.

Interest and Costs

Reimbursements of all reasonable legal fees and costs beyond the $50,000 previously advanced, up to a maximum of $80,000 (including the $50,000).

Periodic Review

Future reviews to track the timeframes of the quadrennial commission process.

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