Vol. 141, No. 8 — April 18, 2007

Registration
SI/2007-48 April 18, 2007

JUDGES ACT

Order Amending the Judges Act (Removal Allowance) Order

P.C. 2007-435 March 29, 2007

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 40(2) of the Judges Act, hereby makes the annexed Order Amending the Judges Act (Removal Allowance) Order.

ORDER AMENDING THE JUDGES ACT (REMOVAL ALLOWANCE) ORDER

AMENDMENTS

1. The definition "new residence" in section 2 of the Judges Act (Removal Allowance) Order (see footnote 1) is replaced by the following:

"new residence" of a judge means the residence

(a) at the place or in the area where the judge is required to reside to assume or perform the judge's functions and duties as a judge, or

(b) to which

2. Section 3 of the Order is amended by adding the following after subsection (2):

(3) For greater certainty, the travelling costs referred to in paragraph (1)(a) do not include those incurred by the judge after the establishment of the judge in the new residence during one of the periods referred to in subparagraph (b)(i) of the definition "new residence" in section 2 or those incurred by the judge in order to visit from time to time members of the judge's household during one of those periods.

COMING INTO FORCE

3. This Order comes into force on the day on which subsections 9(1) and (2) of An Act to amend the Judges Act and certain other Acts in relation to courts, being chapter 11 of the Statutes of Canada, 2006, come into force.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

An Act to amend the Judges Act and certain other Acts in relation to courts, S.C. 2006, c. 11 added new entitlements under paragraphs 40(1)(c) and (e) of the Judges Act to permit certain judges to receive a removal allowance (reimbursement of their moving and other expenses) when they relocate in the two-year period preceding their actual date of retirement. These new entitlements were in addition to an existing entitlement to a removal allowance when the judges relocated in the two-year period following their actual date of retirement.

The new entitlements were added to the Judges Act as a result of a recommendation made by the 2003 Judicial Compensation and Benefits Commission (Quadrennial Commission) which was accepted by the Government. The Quadrennial Commission is part of a constitutionally mandated process for preserving the independence of the judiciary by ensuring the financial security aspect of judicial independence. In this case, the 2003 Quadrennial Commission recommended the new entitlements for judges of the Supreme Court of Canada, Federal Courts, Tax Court and northern trial superior courts in order to assist those judges with their retirement planning. The recommendation was accepted as it was designed to be cost neutral and facilitate effective retirement planning (see Government Response to the 2003 Judicial Compensation and Benefits Commission, May 29, 2006, p. 1).

The Judges Act (Removal Allowance) Order, made under the authority of subsection 40(2) of the Judges Act, prescribes the moving and other expenses that may be reimbursed. In order to ensure the cost neutrality of the new entitlements in paragraphs 40(1)(c) and (e), it is necessary to amend the Order.

Judges making a claim under paragraphs 40(1)(c) or (e) would continue to receive full reimbursement of their moving and other expenses as currently provided in the Order. At the same time, minor amendments are being made to the Order to clarify that there is no reimbursement of travel, accommodation, and meal expenses for travel from the new residence to the former residence when the judge relocates in one of the two-year periods set out in paragraphs 40(1)(c) and (e). For example, if a Tax Court judge moves to a new residence in Montréal during the two-year period preceding retirement, the judge would not be entitled to claim travel, accommodation and meal expenses incurred by the judge when commuting from Montréal (new residence) to Ottawa (former residence) to fulfill his or her judicial function prior to actual retirement.

Alternatives

Section 100 of the Constitution Act, 1867, requires that Parliament "fix and provide" the salaries, pensions and other benefits of superior court judges. Accordingly, judicial remuneration, including benefits such as the removal allowance, must be established through statute and subordinate legislation. There is no other constitutionally valid alternative.

Benefits and Costs

The amending Order supports the independence of the superior court judiciary by ensuring the financial security aspect of judicial independence. The Supreme Court of Canada has held that judicial independence is not the private right of judges, but rather serves important societal goals such as the maintenance of public confidence in the impartiality of the judiciary (Reference re: Remuneration, [1997] 3 S.C.R. 3 at 34, s. 9, 10). The amending Order thus benefits all Canadians as it contributes to the preservation of an independent and impartial judiciary.

The amending Order achieves cost neutrality by ensuring that judges who make a claim under paragraph 40(1)(c) or (e) receive full reimbursement – no more and no less – of their moving and other expenses. The Office of the Commissioner for Federal Judicial administers the salaries and other benefits provided under the Judges Act and would continue to administer the removal allowance (reimbursement of moving and other expenses) within current resources.

Consultation

The 2003 Quadrennial Commission invited and received written submissions from a broad range of interested persons, including representatives of the judiciary and Government. Two days of public hearings were conducted in February 2004, with extensive oral argument provided by representatives of the Canadian Superior Court Judges Association, the Canadian Judicial Council, Government and other interested persons.

Thus the amendments to the Order emanate from a constitutional, public process in which the judiciary actively participated and made submissions in support of the new entitlements under paragraphs 40(1)(c) and (e) of the Judges Act. The amendments to the Order make minor clarifying changes that affect a very small, well informed class – judges of the Supreme Court of Canada, Federal Courts, Tax Court and northern trial superior courts.

Contact

Karen Cuddy
Counsel
Judicial Affairs, Courts and Tribunal Policy
Public Law Sector
Department of Justice Canada
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Telephone: 613-957-7949
FAX: 613-941-4088

Footnote 1

C.R.C., c. 984; SI/2003-143

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