Provincial Judges and Applications Judges 2021 Compensation Commission Regulation

(Consolidated up to 76/2023) ALBERTA REGULATION 65/2021 Judicature Act PROVINCIAL JUDGES AND APPLICATIONS JUDGES 2021 COMPENSATION COMMISSION REGULATION Table of Contents 1 Definitions 2 Establishment of 2021 Commission 3 Composition, etc., of Commission 4 Role of Commission 5 Commission expenses 5.1 Association’s costs of making submissions 5.2 Inquiry procedure 5.3 Criteria for recommendations 5.4 Presentation of report to Minister and Association 5.5 Amendment of report 5.6 Confidentiality of the report 5.7 Effect of recommendations on Crown 5.8 Lieutenant Governor in Council’s decision on the recommendations 5.9 Judicial review 6 Expiry 7 Commencement Definitions 1 In this Regulation, (a) “applications judge” means, except in section 5.3(2)(g), an applications judge as defined in Part 6 of the Judicature Act ; (a.1) “Association” means the Alberta Provincial Judges’ Association; (b) “Commission” means the 2021 Alberta Judicial Compensation Commission established by section 2 and “commissioner” means a member of the Commission; (c) “compensation” means remuneration and benefits; (d) “inquiry” means the inquiry referred to in section 4(1); (e) “judge” means, except in section 5.3(2)(g), a judge as defined in Part 6 of the Judicature Act ; (f) repealed AR 136/2022 s9; (f.1) “reasons” means written explanations that meet the justification standard under the Constitution of Canada used to evaluate decisions of a government to depart from a recommendation of an independent body regarding judicial compensation; (g) “recommendations” means the recommendations referred to in section 4(2); (h) “the Minister” means the Minister of Justice; (i) “the report” means the report of the Commission presented or to be presented under section 5.4 except that, if an amended report is or is to be presented under section 5.5(2), it means that amended report. AR 65/2021 s1;171/2021;136/2022;216/2022 Establishment of 2021 Commission 2 The 2021 Alberta Judicial Compensation Commission is established. Composition, etc., of Commission 3 (1) The Commission is to consist of (a) one commissioner appointed by the Minister, (b) one commissioner appointed by the Minister on the nomination of the Association, and (c) one commissioner appointed by the Minister on the nomination of the commissioners appointed under clauses (a) and (b). (2) The commissioner appointed under subsection (1)(c) is to be the chair of the Commission. (3) Subject to subsection (4), the following may not be commissioners: (a) active judges; (b) active applications judges; (c) active justices of the peace; (d) members of the Legislative Assembly; (e) members of boards, commissions and other bodies appointed by the Lieutenant Governor in Council or by any minister of the Crown; (f) other persons who hold office by way of an appointment by the Lieutenant Governor in Council or by a minister of the Crown; (g) employees within the meaning of the Public Service Act . (4) A person referred to in subsection (3)(e), (f) or (g) may be the commissioner referred to in (a) subsection (1)(b) or (c), or (b) subsection (1)(a) if the Association approves the appointment in writing. AR 65/2022 s3;136/2022 Role of Commission 4 (1) The Commission shall conduct an inquiry respecting the appropriate level of compensation for judges and applications judges with a view to preparing the report. (2) The Commission shall, in the report, make recommendations respecting compensation for judges and applications judges for the period April 1, 2021 to March 31, 2025, the effective date of the recommendations, unless otherwise stated, being April 1, 2021. (3) The Commission shall carry out its mandate, established in subsections (1) and (2), in accordance with the following principles: (a) the need for an independent, objective and effective process for determining judicial compensation; (b) the need to present an objective and fair set of recommendations dictated by the public interest; (c) the constitutional guarantee of judicial independence. AR 65/2021 s4;171/2021;136/2022 Commission expenses 5 (1) The Crown shall pay the Commission all reasonable expenses incurred by the Commission in conducting the inquiry and preparing the report under this Regulation. (2) A commissioner is entitled to remuneration and reimbursement for expenses as determined by the Minister. AR 65/2021 s5;171/2021 Association’s costs of making submissions 5.1 (1) The Crown shall pay the reasonable costs, or a portion of the reasonable costs, incurred by the Association in making its submissions to the Commission in accordance with the order referred to in subsection (2). (2) The Minister may make an order prescribing (a) a portion of the Association’s reasonable costs that shall be paid by the Crown, (b) a maximum amount that shall be paid by the Crown to the Association for the Association’s reasonable costs, or (c) both clauses (a) and (b). (3) An order referred to in subsection (2) must be made within a reasonable period of time before the date set by the Commission for the commencement of its inquiry. (4) If the Minister does not agree with the costs incurred by the Association for the purposes of subsection (1), including lawyers’ charges and other costs of the proceedings before the Commission, then, on the Minister’s application, the reasonableness of those costs may be reviewed by a review officer, in which case Rule 10.46, including the right of appeal under Rule 10.46(4), of the Alberta Rules of Court (AR 124/2010) applies. AR 171/2021 s5 Inquiry procedure 5.2 (1) Subject to this section, the Commission may determine its own inquiry procedure. (2) Section 17(2)(a) and (c) of the Interpretation Act do not apply. (3) The full membership of 3 commissioners provided for in section 3(1) constitutes the quorum at a meeting of the Commission. (4) The Commission may record any inquiry proceedings and direct that a transcript be prepared. (5) The Commission may accept such evidence as is relevant to the determination of the issues and is not required to adhere to the rules of evidence applicable to courts of civil or criminal jurisdiction. (6) Any member of the public is entitled to attend the inquiry proceedings and to make written submissions to the Commission. (7) The Commission may (a) grant leave to any member of the public to make oral submissions, or (b) limit to written submissions any submission from an individual judge or applications judge, after hearing submissions made by the Minister and the Association on whether or not to do so. (8) The Commission may require the attendance of any person who has filed written submissions and may require that person to respond to any questions from either the Minister or the Association, or both, as well as from the Commission, and if the person fails to appear or to respond to any of those questions, the Commission may ignore those written submissions. (9) The Commission may, on application, direct the Minister or the Association, or both, to produce any documents that are not subject to privilege. (10) The testimony of witnesses must be under oath or affirmation. (11) The Commission may not award costs for written submissions but may award the reasonable travel, accommodation and meal expenses of anyone required by the Commission to attend. (12) The recommendations must be based solely on the evidence accepted by the Commission. (13) If the Commission makes any recommendation by a simple majority on any matter, the commissioner in the minority may make a minority recommendation on that matter. AR 171/2021 s5;136/2022 Criteria for recommendations 5.3 (1) In this section, “generally accepted current and expected economic conditions” in respect of a jurisdiction includes, without limitation, (a) real gross domestic product, (b) real gross domestic product per capita, (c) the employment rate, (d) the unemployment rate, (e) the labour force participation rate, and (f) the consumer price index. (2) The Commission, in making the recommendations, shall consider the following criteria: (a) the constitutional law of Canada and the need to maintain the independence of judges and applications judges; (b) the generally accepted current and expected economic conditions in Alberta, and the resulting impact on the price of labour in Alberta; (c) the change in the cost of living in Alberta; (d) the current and expected financial position of the Government over the fiscal years that are the subject of the recommendations; (e) the level of increases or decreases, or both, provided to other programs and persons funded by the Government; (f) the roles, duties and jurisdiction of judges and applications judges; (g) compensation provided to judges and applications judges in other Canadian jurisdictions, having regard to the differences between those jurisdictions and Alberta, especially as they relate to differences in the matters referred to in clauses (b), (c) and (d) in respect of those other jurisdictions; (h) the need to attract highly qualified applicants as judges and applications judges. (3) The report of the Commission must explain how each criterion relates to its recommendations. (4) The Commission may consider additional criteria, but if it does so, the report of the Commission must explain the relevance of the additional criteria. AR 171/2021 s5;136/2022 Presentation of report to Minister and Association 5.4 (1) The Commission shall present the report containing its recommendations to the Minister and the Association on the date set by the Minister. (2) The Association may distribute the report to any judges or applications judges affected by the report. (3) The Minister may distribute the amended report to the Lieutenant Governor in Council and Government officials as required for the purpose of obtaining the order under section 5.8. AR 171/2021 s5;136/2022 Amendment of report 5.5 (1) The Commission may amend the report presented under section 5.4 after reviewing any submissions made by the Minister and the Association if (a) the Commission is satisfied that the report (i) failed to deal with an issue raised during the inquiry, or (ii) contains an obvious error, and (b) the Minister or the Association requests that the Commission amend the report within 30 days after the date set by the Minister under section 5.4. (2) If the Commission decides to amend the report pursuant to subsection (1), it must present the amended report to the Minister and Association within 30 days of receiving a request under subsection (1)(b). (3) The Association may distribute the amended report referred to in subsection (2) to any judges or applications judges affected by the report. (4) The Minister may distribute the amended report to the Lieutenant Governor in Council and Government officials as required for the purpose of obtaining the order under section 5.8. (5) An amended report under subsection (2) may differ from the report presented under section 5.4 only so far as is necessary to deal with the matters referred to in subsection (1)(a). (6) Nothing requires the Minister or the Association to make a request under subsection (1)(b). AR 171/2021 s5;136/2022 Confidentiality of the report 5.6 Subject to sections 5.4 and 5.5, every person having access to the report or any proposed recommendations in it shall not disclose it or them to any other person, unless pursuant to an order of a court, until the order referred to in section 5.8(1) has been made or the recommendations are deemed to have been accepted under section 5.8(2). AR 171/2021 s5 Effect of recommendations on Crown 5.7 (1) Subject to subsection (2), a recommendation made by the Commission is binding on the Crown. (2) A recommendation made by the Commission is not binding on the Crown if or to the extent that it is not accepted, with reasons given, by the Lieutenant Governor in Council in accordance with section 5.8. AR 171/2021 s5 Lieutenant Governor in Council’s decision on the recommendations 5.8 (1) The Lieutenant Governor in Council shall make an order containing the decisions on the recommendations made by the Commission and, if any of those recommendations are not accepted, providing reasons for the non‑acceptance. (2) Notwithstanding subsection (1), if the Lieutenant Governor in Council does not make an order under subsection (1) within 120 days after the date set by the Minister under section 5.4, or within 120 days after the date an amended report is presented to the Minister and Association under section 5.5, whichever is later, the recommendations of the Commission in the report or amended report, as the case may be, are deemed to have been accepted. AR 171/2021 s5 Judicial review 5.9 (1) If (a) the Lieutenant Governor in Council decides, with reasons, not to accept any of the recommendations in whole or in part, (b) the Association or any judge or applications judge brings an application for judicial review of that decision, and (c) that application is successful, the Court may not make the recommendations binding on the Crown but may refer the recommendations to the Lieutenant Governor in Council or to the Commission for a reconsideration. (2) If the Court makes the reference under subsection (1), the Lieutenant Governor in Council or the Commission, as the case may be, has 120 days from the day that the application was granted to reconsider the recommendations in accordance with the directions, if any, of the Court. AR 171/2021 s5;136/2022 Expiry 6 This Regulation expires on March 31, 2027. Commencement 7 This Regulation comes into force on April 1, 2021.