3. Response to the Report (Cont'd)

3. Response to the Report (Cont'd)

b) Recommendation 3: Salaries for Senior Judges of the North

The Government accepts the Commission recommendation that the Senior Judges of the Northern Territories receive the same salary as provincial superior court Chief Justices.[17] At the same time the Government is pleased to take this opportunity to announce that the Government will also propose that the necessary amendments be made to designate the northern Senior Judges as Chief Justices of their respective courts.

c) Recommendation 4: Salary Differential between Trial and Appellate Judges

The Commission declined to recommend a salary differential between trial judges and court of appeal judges as had been proposed by some members of Court of Appeal.[18] The Government accepts and endorses the Commission's reasons in this regard.

d) Recommendation 5: Division of Annuity on Relationship Breakdown

As proposed by the Government, and supported by the judiciary, the Commission recommended a mechanism to divide the judicial annuity in the event of a relationship breakdown.[19] The annuity scheme for the federally appointed judiciary is unique in failing to provide for such a mechanism.

The Commission's recommendation largely mirrors the Government's own proposal, but for one aspect, the deemed accrual period. Unlike most pension plans, the judicial annuity scheme does not provide for an annual accrual formula. In order to calculate the division of an annuity on relationship breakdown, a "notional" accrual period must be established. The Government had proposed that the deemed period of accrual would cease on the date the judge became entitled to a full annuity.

The Commission's recommendation would calculate the accrual period based on the expected period of judicial service. In the Commission's view, this formula would be fairer for both judges and spouses, as it can accommodate the annuity being shared with a spouse in the circumstances of a second conjugal breakdown.. The Government is prepared to accept that the Commission's recommended approach represents a reasonable, cost-neutral mechanism for dividing the judicial annuity.

e) Recommendation 6: Survivor Benefits for Single Judges

The Commission declined to recommend a change in the provision of survivor benefits for single judges.[20] In doing so, the Commission accepted the Government's submission in this regard.

f) Recommendation 7: Enhanced Annuity for Judges who Retired between 1992-1997

The Commission also accepted the Government's position with respect to, and declined to recommend, proposed changes to annuities payable to judges who retired during the period of fiscal restraint between 1992 and 1997.[21]

g) Recommendations 8-14: Allowances

The Commission recommended that the Incidental Allowance[22] remain unchanged[23]. The Government accepts the reasons given by the Commission in this regard.

The Commission recommended that Regional Senior Judges[24] of Ontario receive a representational allowance[25] of $5,000 per year[26]. In view of Ontario's size and the distribution of its population, Regional Senior Judges take on responsibilities in representing their courts within defined geographical areas of the province that are akin to the duties undertaken by Chief Justices and other senior judges. In light of all of the circumstances, the Government accepts this recommendation.

The Government also accepts the Commission recommendation that a Northern Allowance[27] should be paid to the superior court judge resident in Labrador.[28] This allowance is merited given that the higher cost of living and isolation experienced in Labrador is similar to that experienced by judges currently entitled to the Northern Allowance.

The Commission made a number of recommendations concerning relocation expenses[29] for judges. Presently, the Removal Allowance Order[30] provides a six-month time period for a judge to sell his or her home. In specific circumstances, that six-month period may be extended for "an additional period" which can run up to a year.[31] The judiciary had requested that this period of time be extended. The Commission declined to make this recommendation, but did recommend that the Commissioner for Federal Judicial Affairs have the discretion to provide an additional period time in the case of "unusual" circumstances.[32] In the Government's view, the current Removal Allowance Order guidelines provide sufficient discretion so that such an additional period may be granted where circumstances warrant.

The Government also accepts Recommendation 12,[33] that judges of the federally constituted courts and superior courts in the Northern territories be reimbursed for relocation expenses incurred within two years prior of the judge becoming eligible to retire. Judges of these courts are required to comply with statutory residency requirements when they accept their appointments, and many will incur relocation expenses upon their retirement as they return to the parts of Canada in which they resided prior to appointment. The recommendation is designed to be cost-neutral, and will provide flexibility to these judges to aid their retirement planning. The Government therefore accepts this proposal.

The Commission also recommended that the partners of judges of the federally constituted courts be reimbursed for expenses incurred in an obligatory relocation, up to an accountable $5,000 limit[34]. The Government accepts this recommendation on the understanding that "partners" mean married spouses and common-law partners, and the expenses in question relate to expenses incurred as a result of a disruption in the partner's employment.

The Government accepts Recommendation 14[35], wherein the Commission declined to recommend that all superior court judges be entitled to relocation expenses to permit relocation to any part of Canada upon retirement.

h) Recommendation 15: Supreme Court of Canada Retirement after Ten Years

The Commission recommended that judges of the Supreme Court of Canada should be eligible to retire with 10 years of service on that Court irrespective of age.[36] The Government accepts this recommendation. Service as a member of the Supreme Court of Canada is extremely demanding. As the court of last resort, these judges must not only manage a uniquely heavy case load but are required to do so with the highest level of personal commitment and professional rigour. Also, most Supreme Court judges have already served for extensive periods on courts of appeals prior to their appointment to the Supreme Court. In most cases, members of the Supreme Court of Canada would therefore be eligible to retire under the normal "Modified Rule of 80" retirement rule.[37] As a result, this special retirement provision for Supreme Court of Canada judges will not be used frequently.

i) Recommendation 16: Representational Costs

As indicated above, the Government is not prepared to fully accept the Commission's recommendation that the judiciary's current entitlement to reimbursement of legal representational costs be increased. The Commission recommended that the judiciary be reimbursed for 100% of disbursements and 66% of legal fees.[38]

The current Judges Act provision provides for 50% reimbursement of the judiciary's legal costs on a solicitor-client basis as assessed by the Federal Court[39]. It should be recalled that this formula modified the Drouin Commission recommendation for 80% reimbursement of the judiciary's legal representational costs.[40] In its December 13, 2000 Response, the Government justified its modification of the Drouin recommendation on the basis that it would afford the representatives of the judiciary a largely unchecked discretion in deciding what costs would be incurred for legal counsel, expert witnesses and the like in preparation for a Commission. The concern was that the public would be held responsible for the payment of the significant and unpredictable expenditures incurred by the judiciary.

The Government's 50% formula provided a reasonable contribution to the costs of the participation of the judiciary, while at the same time establishing reasonable limits on such expenditures. The equal sharing of costs by public and the judiciary was regarded as fair, given that the members of the judiciary are the immediate beneficiaries of the Commission's recommendations. It also provided an appropriate financial incentive to ensure that the costs are incurred reasonably and prudently.

The Government continues to hold the view that there should be a financial incentive to ensure that representational costs are prudently incurred. This rationale applies equally to disbursements as well as legal fees, especially given that disbursements in these matters - for example in retaining expert compensation consultants - can be quite significant.

Accordingly, the Government will propose that representatives of the judiciary should be entitled to reimbursement of 66% of representational costs, both disbursements and legal fees. These costs would continue to be subject to assessment as currently required.