BILL NO. 68

1st Session, 57th General Assembly
Nova Scotia
47 Elizabeth II, 1998

Government Bill

Provincial Court Act
(amended)

The Honourable James A. Smith, M.D.
Minister of Justice

First Reading: November 6, 1998

(Explanatory Note)

Second Reading: November 13, 1998

Law Amendments Committee: November 16, 1998

Third Reading: November 17, 1998 (WITH COMMITTEE AMENDMENTS)

This Bill establishes a tribunal to make recommendations with respect to the salary and other benefits to be paid to judges of the Provincial Court and judges of the Family Court. The recommendations of the tribunal are binding on the Crown unless otherwise provided for in this Bill.

Be it enacted by the Governor and Assembly as follows:

1 Section 21 of Chapter 238 of the Revised Statutes, 1989, the Provincial Court Act, is repealed and the following Sections substituted:

21 In Sections 21A to 21N,

(a) "Association" means the Nova Scotia Provincial Judges' Association;

(b) "Minister" means the Minister of Justice.

21A (1) There shall be a tribunal to determine the salaries and benefits for judges of the Provincial Court and judges of the Family Court, including the chief judge and the associate chief judge of each court.

(2) A tribunal shall be composed of three persons,

(a) one of whom shall be appointed by the Association;

(b) one of whom shall be appointed by the Minister; and

(c) one of whom shall be appointed by the persons referred to in clauses (a) and (b).

(3) The person referred to in clause (c) of subsection (2) is the chair of the tribunal.

(4) Unless the Association and the Minister agree otherwise, no active or retired Provincially appointed or federally appointed judge, no member or former member of the House of Assembly, no elected member of a municipal council or school board and no employee, as defined in the Public Service Superannuation Act, shall be appointed pursuant to subsection (2).

(5) Where the members appointed pursuant to clauses (a) and (b) of subsection (2) cannot agree on a member to be appointed pursuant to clause (c) of subsection (2), the Dean of Dalhousie Law School, after consultation with the Minister and the Association, shall appoint the chair of the tribunal.

(6) Subject to subsections (7) and (8),

(a) a member of the first tribunal holds office for a term that expires on the thirty-first day of October, 2001; and

(b) a member of a subsequent tribunal holds office for a term that expires on the thirty-first day of October of the third year after the year of the member's appointment.

(7) Where a vacancy exists on a tribunal, the person or persons who appointed the member whose position is vacant may appoint a replacement member for the unexpired portion of the member's term.

(8) Where a term of the members of a tribunal expires before the members have completed a report, the members may complete the report as though the term had not expired.

(9) The members of a tribunal are entitled to such remuneration and reimbursement for such reasonable expenses as determined by the Minister.

21B The members of the first tribunal shall be appointed on or before the first day of December, 1998, and the members of each subsequent tribunal shall be appointed on or before the first day of November of the year in which the tribunal is established.

21C The persons appointed to a tribunal pursuant to Section 21A have all the powers, privileges and immunities of a commissioner appointed pursuant to the Public Inquiries Act.

21D (1) Subject to this Section, a tribunal may determine its own procedures, including procedures for the making of submissions to the tribunal.

(2) Any member of the public or interested group is entitled to attend a hearing of a tribunal and submit a written submission to the tribunal.

(3) A tribunal may limit submissions, except those from the Minister or the Association, to written submissions only.

(4) Any person is entitled to receive a copy of a written submission made to a tribunal upon paying a reasonable fee for copying.

21E (1) A tribunal shall inquire into and prepare a report containing recommendations with respect to

(a) the appropriate level of salaries to be paid to judges of the Provincial Court and the Family Court, including the chief judge and associate chief judge of each court;

(b) the appropriate level of per diem payments made to judges for presiding in the Provincial Court or the Family Court where those judges are not receiving salaries;

(c) the appropriate vacation and sick-leave benefits to be provided to judges of the Provincial Court and the Family Court;

(d) pension benefits, long-term disability benefits or salary continuation, life insurance and health and dental benefits for judges of the Provincial Court and the Family Court and the respective contributions of the Province and the judges for such benefits; and

(e) other non-discretionary benefits for judges of the Provincial Court and the Family Court.

(2) Where there is a dispute as to whether a benefit referred to in clause (e) of subsection (1) is a non-discretionary benefit, the Minister or the Association may, within thirty days of receipt of the report, appeal to the Nova Scotia Court of Appeal to have the question determined.

(3) Where the Minister and the Association agree, a request may be made to the tribunal to inquire into and make recommendations with respect to discretionary benefits or any other matter of importance to the Minister or the Association.

(4) A recommendation made by a tribunal pursuant to subsection (3) is not binding on Her Majesty in right of the Province.

(5) When making recommendations pursuant to this Section, a tribunal shall take into consideration the following:

(a) the constitutional law of Canada;

(b) the need to maintain the independence of the judiciary;

(c) the need to attract excellent candidates for appointment as judges;

(d) the unique nature of the judges' role;

(e) the manner in which salaries and benefits paid to judges in the Province compares to judicial compensation packages in other jurisdictions in Canada, including the federal jurisdiction, having regard to the differences between those jurisdictions;

(f) the provision of fair and reasonable compensation for judges in light of prevailing economic conditions in the Province and the overall state of the Provincial economy;

(g) the adequacy of judges' salaries having regard to the cost of living and the growth or decline in real per caput income in the Province;

(h) the relevant submissions made to the tribunal;

(i) the nature of the jurisdiction and responsibility of the court; and

(j) other such factors as the tribunal considers relevant to the matters in issue.

21F The report of the first tribunal shall contain recommendations covering the period from the first day of April, 1999, to the thirty-first day of March, 2002, inclusive, and the report of each subsequent tribunal shall cover a similar three-year period.

21G (1) The report of the first tribunal shall be submitted to the Minister on or before the first day of March, 1999.

(2) The report of each subsequent tribunal shall be submitted to the Minister on or before the first day of February of the year following the year in which the tribunal is established.

21H (1) Where a tribunal is not able to deliver a unanimous report, the report of the majority of the members of the tribunal is the report of the tribunal or, where there is no majority report, the report of the chair is the report of the tribunal.

(2) The report of a tribunal, including any minority report, shall be delivered immediately to the Minister and the Association.

(3) Copies of the reports referred to in this Section shall be made available, upon request, to any person.

21I (1) The Minister shall introduce in the House of Assembly the necessary legislation to implement, on or before the first day of April, 2000, the recommendations contained in the report of the first tribunal that require legislation.

(2) All recommendations contained in the report of the first tribunal, other than those referred to in subsection (1), shall be implemented and shall take effect on the first day of April, 1999, or such later date as determined by the tribunal.

21J (1) Recommendations made in the reports of the second and subsequent tribunals, other than those that require legislation, take effect on the first day of April immediately following the year in which the tribunal is appointed, or such later date as determined by the tribunal.

(2) Where recommendations of a tribunal require legislation for implementation, the Minister shall, within one year of the report of the tribunal, introduce in the House of Assembly the necessary legislation to implement the recommendations.

21K (1) Upon receipt of the report from a tribunal, the Minister shall forward the report to the Governor in Council and the Governor in Council shall cause the recommendations contained in the report pursuant to subsection (1) of Section 21E to be implemented and the recommendations have the same force and effect as if enacted by the Legislature and are in substitution for the provisions of this Act or the Family Court Act or any regulations made pursuant to this Act or the Family Court Act relating to those matters.

(2) Where the Governor in Council does not accept a recommendation made by the tribunal pursuant to subsection (3) of Section 21E, the Minister shall, where requested to do so by the Association, provide reasons for the decision within thirty days of the request.

21L (1) The Minister shall forward to a tribunal for review and comment any proposed legislation that deals with those matters referred to in subsection (1) of Section 21E and that may affect judges of the Provincial Court or the Family Court.

(2) The tribunal shall provide the Minister with its comments within twenty days of the referral to the tribunal.

21M (1) The Minister or the Association may, within fifteen days of the receipt of a report of a tribunal, request that the tribunal amend, alter or vary its report where the Minister or the Association are of the view that the tribunal failed to deal with a matter arising from an inquiry or that the tribunal made an error that is apparent on the face of the report.

(2) Where the tribunal amends, alters or varies its report pursuant to subsection (1), the tribunal shall, within fifteen days, deliver to the Minister and the Association the amended, altered or varied report.

(3) The amendments, alterations or variations in the report referred to in subsection (2) shall only deal with matters referred to the tribunal pursuant to subsection (1).

(4) The decision of the tribunal pursuant to this Section is final and binding on the Minister and the Association.

21N (1) In this Section,

(a) "current judges" means any sitting judges, other than retired judges, appointed before a new plan becomes effective;

(b) "existing plan" means the pension plan in effect for the judges on the coming into force of this Act;

(c) "future judges" means any judges appointed after a new plan becomes effective;

(d) "new plan" means any alternative plan or amendments to the existing plan recommended by a tribunal and brought into effect by an Act of the Legislature.

(2) Where a new plan is brought into effect, any current judges may, within thirty days of the date the new plan becomes effective, elect in writing, in the form approved by the Superintendent of Pensions, to become members of the new plan.

(3) Any current judges who do not elect in writing to become members of the new plan in accordance with subsection (2) remain members of the existing plan.

(4) Any future judges shall be members of the new plan.