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2013 ALBERTA JUDICIAl COMPENSATION COMMISSION
ALBERTA JUSTICF Bill Olthuis Kate Bridgett
Kerry Whittaker
······················-·--·-·-······- ·--··-·········--- . ············································- ····························---···-·····················--·--·--
The Minister of Justice and Solicitor General
in and for the Province of Alberta
-and-
The Alberta Provincial Judges' Association
SUBMISSION OF THE MINISTER OF JUSTICE
AND SOLICITOR GENERAl
IN AND FOR THE PROVINCE OF ALBERTA
MYERS WEINBERG LLP Susan Dawes
Counsel for Tile Mtnistcr of Justice and
So!1cltor C~enc'ral in and h:H· the
Province of t\\bert<!
Counsel for The Alberta Provincial Judges'
Association
TABLE OF CONTENTS
INTRODUCTION .. ~·-- .. _..' ..................................................................................................................................... 1
(: •.. ::\·1 ;:·::.N.SA"IION SUf3M!SSIONS .................................. ., ................................. ·• .............................. 1
JUDICIAL COMPENSATION IN ALBERTA ................................................................................................................... 2
.JUi\i)[)'(T !ON o~
P,\f<TIC!':I\'•fi', if~ •
LtGt\L PgiNCIPl f~ 1-<;
CJovernn;ent
(Ri!f.FU\ .....
·.; C/·!~v11\t11SSIOf\J ..................... , ................................................................................................ 2
PHOCESS ............................................... . .................................................................. 2
fj JUDICIAL COMP[N)ATION ............................................................................................... 3
....................................................... ]
f(l set judicial compensation.... .................... .. .................................................... 7
.. .................................................................................................................................... 7
BACKGROUND AND CONTEXT OF THE 2013 COMMISSION ..................................................................................... 8
............................................................................................................................... 9
2000 C:CM'v1' .s:rl.'J .......................................... . ........................................................... 10
................................................................................................................................ 12
2006 (OMfVIi'iSlON . .. ................................................................................................................................ 14
................................................................................................................................. 17
APPLYING THE CRITERIA ........................................................................................................................................ 18
• • • :JiONAL LAW OF CANADA AND THE NEED TO MAiN"lAIN :NDtYFNDENCf. OF JUDGES AND THE
.................................................................................................................................. 18
CiUiJrtintee )Uti.i( ;~·:(ietJencience ~····~q· .. ·v······---.····~ ............... ~ .... -............... ~ ...................... .. _, ........... n ............. 19
Comtniss!,)tl Pru;t·· ........................................................................................................................ 19
(y 'Li~!O~J C: · OF THE ROLl. 0~ JUDGES .......................................................... . .............................. 20
Ci·\! a !HYJ [) ···· '/>.!N A STHONG PHOViNCiAL (OUHT fW ATTf{ACTIMi !11CiHLY QUAL!HD APFUU\NTS .................... 21
Current stamford ::f exrci!cnce of the Alberta Provincial Court ....................................................................... 22
!he .!udiciof Appo:nuncnt PrrJ(.-e.ss .................................................................................................................. 30
Cornpensmwn comourcd to thot of federally appointed judges ....................................................................... 33
: UU)N E .. THt RU.;1Ui'JEHATION AND BEI'JE!-!T) OTHER JUDGLc) IN CANADA RECEIVE ..................... 33
ftistorical Cnn!Ot'n min/; Comparison- Alberto Provincio! Court Judqes and Other Canadian Provincial Court
.iudQC5.. . ' ............................................................................................................................... 33
Specific )udicir;;f Soi::rv \.·omparisons ................................................................................................................. 40
!\1ointain !--listoncm cornpensation Comparison with Ontario ('Approximate Parity'') Subject to Unique "Made
in AltH::rta ·· roctc)r:; .. , ............................................................................................................................. 42
Any Argurnenr Comr,ens·ation Parity with Federally Appointed Judges Should be Rejected ...... ................. 42
Mointain !--Iiston:: ''f'ercentage Gap'' with Federally Appointed Judges ........................... .............................. 45
CONSIDERATION OF THF ECONOMIC AND FISCAL CRITERIA (CRITERIA F, G, H, AND J) ................. , ........................ 47
Key Alhcrto fc;n('!''!( indicators ................................................................................... .. . ............................ 47
LI\!ON F ·THE GROWTH AND DEC:Uf\Jl. Of\ BOTH, IN HE.f..l. PEH CAPIT.t\ INCOME IN ALBERTA .......... 48
The Reported f?eJ, .. vonr {)atD .............................................................................................................................. 48
Sf'lCit Cor-J'.i!')i 'LF\!ON G- THE NEED TO PROViDE FAIH AND HL!'\SONABL[ COMPENSATiON IN LiCiHT OF THE
Pnr:vA .. ,L·r,Jc. LCO\IOM•( i UNC.1 IN ALBEHTA AND THE OVERALL SlATE OF THl ECONOMY, INCLl.HHJCi !til· FINANCIAL POSITION OF
..................................................................................................................................... 51
An Overvit:·~v of the Lurrcnt and Anticipated Financial Position of the Government of Alberto (GOA) .............. 51
rfiC l;•:sumptions behind the 'Current Growth Projections for the Alberta Economy ............ 55
SPL c;r. •c Cct~<.:uE p,\' 'f f~!ON H ·· lHE ALBE.HT A (OST OF· LiVING INDLX J\ND Tf-il POSiTION m THE JUDG!.S RELATIVE TO iTS
bCi; H ........•.......................................•....•........•.............................................•................. 58
Variety of fncorne utii./ ~'\/oqe Change Measurement Tools ........ .................................................................... 58
The Alberto Consu'''f'! Price Index (Alberto CPI} is Most Appropriate Sa/wy Inflation Protector ...................... 59
5urnrnory of Dutr; Uw Pa.st, Present and Anticipated Cost of Living Increases in Alberto .............................. 60
Averaqe 'v'\lee<·h/ (AWE) is Not an Appropriate Salary Inflation Protector ........................................... 61
Post Present and Anticipated Average Weekly Eaminqs Increases in Alberta ........... 64
St'LC!F!C (OW-Ui.'~:.'. n!ON I- THL NATUPL OF THt JURISDiCTtO.'\l OF JUDGES ...................... , ............................... 66
S;·~L; IC CCN'.:ll!Fu>.: ~~:ON J ·· THL LEVEL Oi· !NCf{LASES OR Df:CHE;\Sf.'.), OR BOTH, P!\OVIDED TO OTHER PROGRAMS AND
P: :-;soN:) F :_!t'JDL D ' {Jr' .f. r:r~rvlf:.N r .......................................................................................................................... 67
Recent Afherto 'vVcuc Settlements .... Unionized Public Sector ............................................................................ 67
Recent Alberto V\/uqe Increases- Non-Unionized Public Sector ........................................................................ 69
!he fi>ca! Obfioatitln\ the GOA ...................................................................................................................... 69
THE MINISTER1S COMPENSATION INCREASE PROPOSAL. ...................................................................................... 70
................................................................................................... , ........................... 70
.................... , .......................................................................................................... 71
An Aqreed for Costing of Any Proposed Salary Increases .. ..................................................... 71
\')C PHOPOSAi.. ......... _. ....................................................................................................... 71
PHOPOS.M WOULD PHOiTC: i JUDiC!J\L SALARIES AG/\INST lNI·LATION ................................... 73
SAL.A.HY INCREASE PROPOSAL TO PUBLIC SlCIOH INCfU:.ASLS ................................................... 73
C.::..NADiAN JUDGLS ......................................................................................................... 74
.Speu{ic Sofmv to Ontario Provincial Court Judges ......................... .............................................. 75
fhe Asso(lotic)n Soi,Jt increase Proposol Should be Rejected ............................................... ......................... 76
-General After Tox Salary Comparison ................................................................. 78
f\1\\N!STEH'S SALARY INCREASE PROPOSJ',L ......................................................................... 79
ASSOCIJ\TION'S SALALW INCREASE PROP05AL ......................................... ,. .................. 80
.,,, ............................................................................................................................. 81
lhe Two Yeur eension Change ............................................................................ ................................ 81
Cosrinq ()f the (,/:r Vesting Pension Change ................... " ........................................................................ 81
lhe Choice Form for Pension Partner Pension Clwnge ................................. .............................. 82
Vt\C.•\'fi(JNC.>: A~·Jf\U/Itl . ............................................................ .. ........................... "'""'' ............................. 82
J~.i[;i(~:;\.i. iNLJ~· \:1r'i v ····~····· .................. ····~·········~··············· .•.•.••...••... , •. , ................ , ........................... ~···· 86
PLH Di!fv1 !·(H IUDCES ...................................................................................................................... 87
PFCH LSS!O~~t:L f\• ............. ····· ........ ' .............................................. ' ......................................................... 87
INDEX OF TABLES
; uurt Appointments April I, 2011 -·May 2014 ....... . . ......................... 22
C;iP~BrJtive Judicial Salary Percentage Ratio~; (2012/:13) .................. __ ........................ 41
Table 3 C :•mparative Judicial Salary Percentage Rations {2009/10 to 2010/11)- Assuming
nf the Minister's Salary Increase Proposi:lt ........................................................ 74
Table 4 .................................................................... 78
fable 5 and Benefit Costs for the Minister's Salary Increase Proposal ......................... 79
Table 6 and BenPfit Costs for the Association's Proposed Judicial Salary Increase
.................................................................................................................................. 81
INTRODUCTION
.fili_~ R EN ~fLS
[AFE #]
[JBA #]
[TAB#]
refers to Tab numbers in the Joint Book of Agreed Facts and Exhibits
t(ders to Tab numbers in the Joint Book of Authorities
r clers to Tab numbers attached to these Submissions
Summary of Minister's Compensation Submissions
1. The Mimstc>? Justice and Solicitor General in and for the Province of Alberta
('/Minister''') submit that the 2013 Judicial Compensation Commission ({(Cornmission") should
recommend the as reasonable compensation and benefits for Provincial Court Judges
and Master~; in Charnbers (referred to collectively hereinafter as "The Minister's Compensation
Increase Proposal'' J
Salaries: Thc1t the s<J for provincial judges ("Alberta Provincial Court Judges'') and masters
in chambers ("A!berld fV1asters") be set for the period April 1, 2013 through March 31, 2017 as
follows. The! judio;.J! ~,JL.nies are to be increased during each year of the said period equal to
the percentage incr 'ds~.::s m the Alberta Consumer Price Index (Alberta CPI) as of December 31
of the previous c::·llc·ncL:n year, to a maximum of 5% per year. (This salary proposal is
hereinafter referrc'd to dS The Minister's Salary Increase Proposal.)
Per Diem for Supernumerary Judges: That in accordance with the Minister's Salary Increase
Proposal .. for the pcr;cy! April 1, 2.013 through March 31, 2.017, supernumerary judges and part
time/ad hoc rr1astcr', c;hould receive increases in their annual per diem rate equal to the above
noted annual salary increases paid to full-time judges, maintaining the ratio of 1/207.5 of a full
tirne puisne judge' sa
Judicial Indemnity Policy: The Minister agrees in principle with the Association regarding
developing and implementing a judicial indemnity that will provide full indemnification for legal
fees and other costs incurred by judges and masters for all proceedings which may affect their
judicial function or hwu capacity as a judge or master. To that end, the parties have developed
1.
a draft Judicitd indcrnnity document and discussions continue in respect of its specific
provisions.
Pension: That there certain specific changes to current pension benefits in accordance with
the joint positior1 the Minister and the Association, as summarized below.
Vacation: That be no change in regard to judicial vacation leave.
Professional Allowance: That part-·time judges be entitled to the full annual professional
development allowance\ of $3,750.
Health Spending Account (HAS): That, as need be, the JCC confirm the HAS already being
provided to judge', part of judicial compensation. The HAS is a non-taxable benefit in the
amount of $9SO per y'car that assists with the payment of health and dental expenses that are
either partially covered or not covered by the group benefits program.
JUDICIAL COMPENSATION IN ALBERTA
Jurisdiction of the Present Commission
The is the sixth in Alberta. It has jurisdiction to conduct an inquiry and
rnake recornrncncbtH)n~) regarding the appropriate compensation for Judges and Masters in
Alberta from April /'0 13 through March 31, 2017. 1
Participants in the Commission Process
3. The following parties are involved in the inquiry:
The Minister vJho is responsible for superintending all matters relating to the
admtntslrat!( c;F 1ustice in Alberta that are within the powers or jurisdiction of the
Legislatu rc: or t l1 Government;<
Alberta Provincio! and Masters in Chambers Compensation Commission Hegu!ation (Commission
Regulation) AR 33/2103 iJBA #15] :_; Pursuant to Schedule 9 nf the Government Organization Act [RSA 2000 e.G 10 i.lS amended] and s 16 of the
Designation and Tmnsfe; F!csponsibility Regulation [AR 38/2008 as amended)
2
The Alberta Provincial Judges Association (the Association L which is incorporated
under it'tics Act and enjoys the membership o'f most, but not all, provincial court
JUdges; ancJ
The Association of Masters in Chambers of the Court of Queen's Bench of Alberta,
which b incorporated under the Societies Act and enjoys the membership of all of the
masters
4. t\s at April .1 2014, there were 132 FTEs or full-time equivalent judicial positions made
up of 116 full··timc i 26 part-time judges (1 FTE for every 2 part-time judges) and three
there were 17 supernurnerary judges and 5 who were receiving Long
Term Disability lr1surdrv:e (LTDI) benefits.
5 As at April J 2014, there were 5 full-time masters, 3 half-time masters, and 2 part-time
per diem n!(JSters
Legal Principles Relevant to Judicial Compensation
6. In 198::>, tlv) Supreme Court of Canada noted that s. ll(d) of the Charter guaranteed
Judicial independcn,:c provincial court judges, and confirmed that the three components of
judicial inclepPnclcncc~ an:> security of tenure, administrative independence and financial
security.,: Ensunng fi:FHKial security required that a provincial judge's right to compensation be
established by law, ;:H!d that the executive branch of government not be able to arbitrarily
interfere with that
7. Building on principles, in September 1997, the Supreme Court of Canada ruled in
PEl Heference that ' protect the judicial branch's constitutional role in Canada and to support
public confidence 1 1 he mdependence of the judiciary, independent, objective and effective
::Source: Ce;~role Yanuw_ ;udiual Selection and Appointments Coordinator, Alberta Justice, Court Services 4
R v Vahmte 1985 C:H•;wcllOnr l29 (SCC) [JBA #3]
3
compensation comrntssions must advise government about the appropriate level of judicial
compensation.
8. The deciS!()ri 1n F'E/ Reference emerged from three separate appeals united by one issue:
whether and how· he Charter guarantee of judicial independence restricts the manner by and
the extent to wh1ch provmcial governments and legislatures can reduce provincial court judges'
salaries.h The ing principles are summarized below [all paragraph references to PEl
Reference]:
[JBA #1}
• It is constitutional imperative that the relationship between the judiciary and
•
branches of government be depoliticized. Courts must be free and appear
tc1 hi, free from political interference through economic manipulation by the
branches of government [131];
judges' salaries can be reduced, increased or frozen as part of an
ovc)rtlil economic measure affecting salaries of same or all persons remunerated
from public funds, or as part of specific measures directed at provincial court
However, any changes or freezes require prior recourse to an
independent, effective, and objective process or body ..... a commission -to avoid
the possibility or appearance of political interference through economic
rnanipulcHion fl33];
• Governnlcnts are constitutionally required to go through the commission
CJI'(-)('",(.:'. .l ') 3) .· t· • • t .·"' .l .. ) . I
• A cc)rnrrlission' s recommendations are not binding on the executive or the
!egis Lit tnc, but should not be set aside lightly. If the executive or the legislature
, of Judges of the Provincial Court {PEl) (PEl Reference} 1997 CarsweiiNat 3038 (SCC)
c PEl Reference at p;~r" J pBt\ ffl/. One of those appeals came out of Alberta [R v Campbell], the others from Prince
Edward Island and f\~<lt 1 >,;h.;
4
to depart from them, it must justify its decision, if need be, in a court of
•~ Tile' tid!\ iary cannot collectively or individually negotiate compensation with the
t'XCCtltive or legislature, although chief judges and organizations representing
judge~; mav express concern or make representations to government regarding
•
the· uacy of judicial compensation [134];
'i<1uction to judicial remuneration, including erosion of salaries by inflation,
compensation below a basic minimum level which is required for the
offici' of ,:1 judge, Public confidence in the independence of the judiciary would
be undermined if judges were paid so little that they could be perceived as
to political pressure through economic manipulation (135].
9, The Court cLJborated on the criteria of independence, objectivity, and effectiveness
pertaining to cornrr themselves, as surnmarized below [all paragraph references to PEl
Rr::·ferenceJ:
• ConHrH\Sions serve as an institutional sieve, to prevent the use of judicial
ren"HJrler;;~tion as a tool to exert political pressure on the judiciary. It would
undc·r 1ninc\ that goal if the independent commissions were under the control of
the e:<c(utive or the legislature [ 170];
• ford
members must have security of tenure, meaning they should serve
term which may vary in length [ 171);
• A cornrrdssion should have members appointed by the judiciary and the
legisi<l ure and the executive so that it isn't entirely controlled by any one of the
br:vvhc·<. government [172];
• A cornrni(;sion's goal is "an objective and fair set of recommendations dictated by
the Interest". It must rnake recomrnendations based on objective criteria
5
included in the enabling legislation or regulation, not political expediencies.
cornmissions should be fully informed before making their
reu)rnrnc·ndationsJ so should receive and consider submissions from the
Jtld ic1;! r "/, the executive, and the legislature [ 173];
• TlJC")t' reqUirements guarantee that commissions are effective [174 -·183]:
Governments are constitutionally obligated not to change or freeze
judicial remuneration until they have received the commission's report;
rn guard against inflation-based reduction in salaries based on
i·;<)vernment inaction, commissions n1ust convene it a fixed period of time
passed since their last report;
Although not binding, commission reports must have a meaningful effect
t:Jn judicial compensation. Judicial independence requires that the
f')<.ecutive or legislature must formally respond to the commission's
rc~c:ornmendations within a specified time. If the executive or legislature
c'HJoses to reject a recommendation, it has to give reasons for doing sol
:JrHl justify its decision, if necessary, in a court of law, on a standard of
':;rrnple rationality.
10. Concerned H1.:1t the commission process in sorne jurisdictions had exacerbated friction
between judges <Jnd government instead of diminishing it and hoping to avoid future conflicts,
the Supreme Court Canada updated and refined these principles in 2005 1n Bodner, focusing
on the standard gcwernment must meet if it chooses to reject a commission's
recomn1endations. I Supreme Court acknowledged that when considering an appropriate
remedy in cdses where.• government has improperly rejected recommendations, courts may not
ProvinCiof Ccurr ./u(J()i>•, · {New Brunswick) v New Brunswick (Minister of Justice) {''Bodner'') 2005 CarsweiiNB
40:i, :?005 SCC 44 [JBA #2j i he short form "Bodner" comes from the fact that, like the decision in the PEl
Reference, this deu,ion the result of a number of separate appeals dealing with similar issues, one of which
was HMO Alberto \l Chert··,Jc Bodner
6
encroach upon provincial legislature's exclusive jurisdiction to allocate funds from the
public purse and set judicial salaries.8
~3o_y.~rnrns:~nX~2,.<:gJthority to set judicial compensation
11. t\s these Cd'>t>~~ clearly show, the power to determine judicial compensation belongs to
govern men but their power is not absolute.9 Government can change or freeze judges'
salaries either as p<i a global measure aimed at some or all persons paid from public funds,
or as a measure ;dfccting judges only, as long as that the government goes through the
cornmission proce~); fnst The Charter does not require that commission recommendations be
binding; decisions dbout allocating public resources belong to the legislature and executive. 10
12. There ~~, inherently irrational about including judges in across-the-board
rneasure.s affecting ()ubstantially every person paid from the public purse, as such measures are
typically connectccl vvtth the government's overall fiscal priorities and aimed at furthering the
I;:Hger public intcn\~x ·' l\s Chief Justice Lamer wrote, 12
\\Jothing vV<Yu\d bt :-r1ore damaging to the reputation of the judiciary and the administration of
just1ct than pen. c:ptlon that judges were not shouldering their share of the burden in difficult
cconorn1c t imc:.
13 Appellate courts in several jurisdictions have cited this authority.13
Criteria
14. The Cornrnisston f?egulation sets out the objective criteria the Commission must
consider in conduct
Bodner at para 4?. IJBA N2j
Bodner at par<l 22 !JBA #2]
1t ~:. Inquiry and in framing its recommendations (the Criteria).14
The
PEl Refr:'rt.::·nce ;rt piFih J 31, 133, 176 [JBA #1]; Bodner at para 20 IJBA #2]
' PEl Rejt:rencc at pard 18<1 (JBA #1] PEl Hefercnce at par a 196 (JBA #1}, followed in Provincial Court Judges' Associotion of British Columbia v British
Colutnbio 2014 BCSC 33() at para 188 [JBA #10] - J For exarrple, Aa!to v (onmio (Attorney General), 2010 FCA 195 at para 13; Alberta v Alberta Provincial Judges'
Association, 1999 C'!rswe!!J\I!t~ 68'7 at para 31; and Ontario Judges' Assn. v Ontario, 2003 Canlll 50088 (ON CA) at
par<"~ 101 · Commission J3{a)- (k) [JBA #15]
7
Criteria. which nearly identical to those considered in the five previous Alberta
a) tile• constitutional law of Canada (Criterion A);
b) the rl to maintain the independence of the judges and the Provincial Court
(Criterion B);.
c) the 1 .. 1n nature of the role of judges (Criterion C);
cl} in the c,)sc of Provincial Court judges, the need to maintain a strong Provincial
rt bv .Jtt:racting highly qualified applicants (Criterion D);
e) the rcrnuneration and benefits other judges in Canada receive (Criterion E);
f) the f!fO\Nth and decline, or both, in real per capita income in Alberta (Criterion F);
g) to provide fair and reasonable compensation in light of prevailing
h)
econonllc conditions in Alberta and the overall state of the economy, including
iH'lcHH::i<:~l position of the Government (Criterion GL
the cost of living index and the position of the judges relative to its
or decreases, or both (Criterion H);
i) the r1 tur c of the jurisdiction of judges (Criterion I);
j) the of increases or decreases, or both, provided to other programs and
person~) I unded by the Government (Criterion J);
k) i)tiy factors considered by the Commission to be relevant to the matters in
issue, ((~rirt~rion K).
BACKGROUND AND CONTEXT OF THE 2013 COMMISSION
1::1. Before PEl Referc·nce, Alberta judicial compensation was determined in a variety of
ways, including direct negotiations between government and judicial representatives.
8
16. Since PEl Reference and consistent with the legal principles set out above, five previous
Cornmtssions have' rc corn mended judicial compensation for Judges and Masters. 15
17. This is the L·th /\lberta Commission. Each previous Commission conducted a careful and
thorough reviev\t JUdicial compensation in Alberta and made recommendations based on
extensive evidence submissions by the parties.
1998 Commission
18. The first A!bc·rt;J Commission was established by a Framework Agreement dated March
3, 1998. fv1ernbcr:~ the 1998 Commission were Roderick A. Mclennan, Q.C., Louis D.
Hyndman, O.C :>u,,an Evans} Q.C.J who served as chair: Report: and Recommendations of
the 1998 Judicia! :)ation Commission (1(1998 Report") [JBA #20).
19. The 1998 C.ornrnission recommended significant improvements to the compensation of
Alberta Provincial Court Judges:
Salary: !ncrc<bt'~~ from $113,964 to $142,000 and $152,000 effective April 1, 1998 and
1-\pri! 1, r<:<,pcctively.
Administrative Stipend: An increase in the extra salary paid to the Chief Judge and
,'\ssistant .Judges from $14)56 to $15,000, and from $7,288 to $7,500,
respectivc!v.
Pension: St'\/L'r<:d changes, including:
• /\ suppicTnental or unregistered plan t:o deal with the maximum salary cap
dctcrrnirt~ng pensionable salaries in the federaltncon1e Tax Act ("ITA");
J:, 1998 Commission /\•)rii
Commission: /\f.Hil I.
Commission: i\pril L )(i!
J998- March 31, 2000; 2000 Commission: April 1, 2000 ···March 31, 2003; 2003
r·v1arch 31, 2006; 2006 Commission: April 1, 2006 - March 31, 2009; and 2009
f\'LHch 31, 2013 !reports at JBA #20, 21, 22, 23 and 241
9
,. Or1 gel forward basis, an increase in the pension accrual rate increase from 2%
to ,6 per year, and a change in the benefit formula to the best three
corbC'cuUve years in place of the best 5 consecutive years rule;
For ,1998 judicial service, an early retirement penalty of 3% per year for
c·vc>r; vc:n below age 65 or tor every year by which the total of age plus years of
scrv1cc was less than 80; and
• i\ requin::ment that judges contribute 9% of their annual salaries for a maximum
·v·e:~ns, and that rnaximum benefits be accrued after 25 years.
Other Benefits: An extension of LTD I from age 65 to age 70, cmd removal of the $78,000
coverage
20. ThPse recornrnendations were eventually implemented over the Government's
objectiol1S: Provincioi Judges' Assn. (Alberta) v. Alberta16 [JBA #4).
2000 Commission
21. The 2000 Con1rnission was a significant departure from the 1998 Commission as the
Association and tt~, lv'lmister presented a joint submission to a sole Commissioner, Bruce
Dunlop, FCA: Repor\ Recommendations of the 2000 Judicial Compensation Commission
("2000 Report'") (JBA #21\. Also, the 2000 Commission was the first Alberta Commission to be
established by Hegu , a practice which continues to the present.
22. The joint subrnission was a product of the settlement agreed to by the parties following
the governrnent's
"to assist in the
challenge of the 1998 Commission's recommendations. Its purpose was
and efficient discharge of the 2000 Commission's constitutionally
mandated obligation [JBA #21 at p. 4]. Also as part: of the settlement agreement the
1999 C:wwweiiAit<l /2 {0!3 , dffirmed 1999 CarsweiiAita 687 (CA), le;:1ve to ;;1ppeal refused 2000 CarsweiiAita 482
(SCC) 1
} AR 100/2000
10
Government t.o pay the Association's costs incurred in respect of the 1998 Commission,
an issue on which t 998 Commission had been silent.
2.3. VVith one c··.x:c:cption, the recommendations of the 2000 Commission reflected the joint
submission. The' rc·commendations were:
Salary: !ncr
2003.
from $152,000 to $170,000 for the period April 1, 2000 to March 31,
Administrative Stipend: Maintenance at $15,000 and $7,500 for the Chief Judge and
l\ssistant Judges respectively.
Pensions: changes, including:
• Rcduc\l()!l of the contribution rate from 9% to 7% effective Aprill, 2000;
• !nctr\J<JC' 1n the accumulation rate from 2.67% to 3% per year for each year of
j ud 1u (·ll service after April 1, 2000;
• lncre,be of the maxlmun1 ceiling from 66 2/3% to 70% effective Aprill, 1998;
• For who retire after April 1, 2.000, the penalty for early retirement on
benefits earned after April 1, 1998 should be the greater of:
of those benefits for every year of retirement before age 60, or
3'>;) of those benefits for every year less than the total of the judge's age
m years plus the judge's years of judicial service deducted from 80;
• For tt' pc•riod January 1, 1992 to March 31, 1998, removal of:
ITA maximum cap on pensionable salary}
reduction of survivors' benefits below 75%, and
penalties for early retirement after age 55;
11
24.
Contl!'lUat:ion of survivor benefits at 75% fron1 Aprill, 1998 onwards.
Other Benefits: /\ non-taxable annual professional allowance of $2,500 commencing
Apri I 1, 2000 '
Costs: of the Association's costs before the 2000 Commission, calculated in
the <;arne rn.~mner as government compensates external cou_nsel.
The LGC and implemented the recommendations of the 2000 Commission.
2003 Commission
2.5. The Associ.JUcHl ;:n1d the Minister made separate submissions to the 2003 Commission,
which consisted of Stephen Hart Wood, Q.C., David Jonathan Cory, and chair Daniel McKinley,
F .C. A.: Report dnd Recommendations of the 2003 Judicial Compensation Commission ((12003
Report'') [JBA #22L
26. The recornrnc'nciations of the 2003 Commission were as follows:
Salary: !ncr(<Jse to $200,000 from April 1, 2003 to March 21, 2004; to $210,000 from
April 1, 200fl to f\~drch 31, 2005; and to $220,000 from April 1, 2005 through March 31,
2006
Administrative Stipends: Maintain at $15,000 and $7,500 for the Chief Judge and
Assistant Judges respectively.
P1?r Diem for Supernumerary Judges: Increase from $760 per day to $1,000, $1,030,
and $L060 c>fh::~ctive April1, 2003, 2004 and 2005 respectively.
Pension: No cf~Clnges.
Thi~. \Na:, not P<Ht of til i•Wlt submission. lt was based on a submission made by an individual judge.
12
Other Benefits:
lntrcKiuction of indexing LTDI benefits at a rate of 60% ofthe increase in the
St::1t1stics Canada Consumer Price Index for Alberta;
•• lncrca(;c the Professional Allowance from $2,500 to $3,000; and
Rernovc the $300 annual cap on extra vehicle insurance required for ·business
27. Though it ,lcccpted the recommendations regarding pension and other benefits, the
Government d1d n<Jl accept the salary and per diem recommendations. The LGC gave its
reasons for doing set the compensation for judges and masters for the period April 1,
2003 through March 3J. 2006 in Judicial Compensation Order OC 161/2004.
28. ·rhe /\ssocia1 applied for judicial review of OC 161/2004. The Honourable Mr. Justice
MacCallum lound 1 he LGC's reasons for not accepting the Commission's recommendations
were rational, but held that the Court of Appeal's decision in Bodner v Alberta19 required the
reasons to pass :1 ust:ification standard which required demonstration of extraordinary
circumstances, vvh they did not: Alberta Provincial Judges/ Assn. v. Alberta20 [JBA #5].
Accordingly, he that the Government reconsider its position with respect to the 2003
Commission's salarv and per diem recommendations within 90 days and provide reasons
justifying any rejection of the recommendations on the ground of exceptional circumstances,
failing which the rc'cornrnendations would become binding on the Crown.
29. The Clovcrnn did not provide further reasons within the 90-day period. Rather, the
Governrnent corlt lfH!t'd to pay Judges and Masters in accordance with the recommendations of
the 2003 Cornrnis~,;cT;, even though the Compensation Regulation had never been amended to
provide for the paynlt'nt of salaries in such amounts.
:9 2002 Carswe!IAita 145 2002 ABCA 274
10 2004 ABQB 611
13
30. The
decision, but
dppealed and the Government cross-appealed Justice MacCallum's
<ippeal was ever argued. After the appeals were tiled, the Supreme Court
of Canada r cvcrsed the Alberta Court of Appeal in Bodner and affirmed that the test for judicial
review of the reas<nls ot the LGC: for rejecting JCC recommendations is simple rationality, and
that no exception;?\! Circumstances need be shown.21
2006 Commission
31. Botr1 partie"-, \upported a joint submission to the 2006 Commission, which consisted of
sole Commissioner John Moreau, Q.C With one exception, the recommendations by the 2006
Cornrnis,;ion refic,ctr·<J the joint submission: Report and Recommendations of the 2006 Judicial
Compensation Cornrnbsion ("2006 Report") (JBA #23].
32 This joint suhrrussion occurred in the aftermath of the aforenoted ongoing legal dispute
vvhich followed the Commission. The Government viewed the said decision of the SCC in
Bodner as very q favouring its position in regard to its pending appeal of Justice
!he Government knew that if it was successful in that appeal the MacCallum's
practical result would be that the de facto salaries paid to the Alberta Provincial Court Judges
and Alberta Master> ';nKc the 2003 Commission would have represented overpayment.
33. as follows, in the Minister's Written Submissions to the 2006
Commission:
30. Thv. <·:till:, compensation for judges and ma~:,ter::, is usually governed bv the
the Cornpensation Regulation has not been amended to provide for
s01larics or pc·' d:errs for the period after March 31, 2003. The salaries and per diems paid
effective 2003 have in fact been those recommended by the 2003 Commission. as ~.hown
in Table 1 bck)v':
Although Bodner an.ht of the 2000 Alberta Justices of the Peace Compensation Comrnittee, at para. 121 the
SCC rejected dny nDtii.Yi that the principles were different from those applicable to provincial judges [JBA #2}
14
li<bL' '\!herta Judicial Salaries & per diem, 2003 .. 2006 per 2003 Commission
Fiscal Year -------------·-·· .. ·--.. ···--r-----·--
Judge I Chief Judge I Assistant Chief Judge Salary
Supernumerary Per Diem
31 t!::; /\ssociation's position in the Court of Appeal prevail, no adjustments will be
r·,ecc">sary, \:vhct Government success on the Appeals would mean that the Compensation
vJutild br;· Jmended In accordance with OC 161/2004, Schedule 2, to provide that the
an:ounts shn\vn in Table 2 below would be the lawful salaries of judges and masters over the last
3 fiscal \'t<H:< tint judges and masters had been overpaid:
i;d:i• ;\lberta Judicial Salaries & per cltern, 2003 2006 per OC 161/2004
....................... - ....................... --........... ---------------,.--·----Fiscal Year Judge I Chief Judge I Assistant Supernumerary
~~~~ -~i :=~i~~~~~iJ-~~:~01i:~1~~=:t --l~-~t . .. j 2 00 6 ____ \ ....... 5 ~.QQ!.QQ9./ .... ?~!..?..r.9.9..9../ .. $.?.9]~ ~:~.QQ .......... L. . . .. . . . . . ... $.§ 9.~.. .... . ..... ~~.~~~.·-·.·J
34. Ultirnatelv, ir·i n>gc1rd to the 2006 Commission, the Govermrlent, despite its afore noted
view that it chancr· uf :"uccess in the pending appeal was very good) decided to participate in a
joint submission on < ornpensation. This was done in recognition of the SCC' s remark in Bodner
that one o! the purposes of the Commission process is to diminish, rather than
exacerbate, friction bet\,.vcen the executive and the judiciary [JBA #2 at para. 12].
35. Specificc:d!v, he, parties discussed the possibility that there rnight be common ground
with respect to , ornpensation issues for the purposes of the 2006 Comrnission. This was
based on four cornpC!!H nts: 1) that the salaries and per diem rates paid in accordance with the
decision of the Cornmission would be treated as permanent compensation for 2003 -
2006; 2) that the and cross-appeal of Justice MacCallum's decision be abandoned; 3)
that judicial sal<nie':. ~.;vould rernain at $220,000 for 2006 .. _. 2009; and 4) that certain minor
changes be rnade to he JUdicial pension plan.
36, L1ch partv pr c·pared separate written arguments supporting the joint submission for
different stated
15
•j The (,ovcrnrnent compared provincial judges salaries in Alberta from 1998 -
2006 to all other provincial and territorial jurisdictions and federally appointed
in the same time period, and illustrated that the 2003 Commission's
reccnnrnendations increased Alberta's sai.:Jries significantly in relation to every
ot:ht'\ <H1ddian jurisdiction. The Govcrnrnent also illustrated that if the joint
prclpr.r·<d were accepted, Alberta's salary would be second only to the salary of
ic'dcr;:~!lv appointed judges;
• The /\ssociation argued that the salaries recommended by the 2003 Commission
\Nc·rc: ~Jdequate, suitable and appropriate, that Alberta judges' salaries should
reflect t ''narrowing of any meaningful functional difference" between the
I Court and the Court of Queen's Bench, and that uncertainty over the
federally appointed judges from 2004 - 2008 made it difficult to make
anv ,ubrnission on the extent to which salaries for Alberta provincial judges
he· adjusted for 2006 - 2009 beyond $220,000 per annum. The
As~>o\ ~auon noted that it was in tbe public interest to determine the issue of
i;;l cornpensation for the next three years with certainty, and described its
to maintain salaries for the next three years as "moderate and
37. After considering written and oral submissions by the parties, and after considering the
criteria set out in governing Regulation 72, the Commission made the following
recommendations
Salary: for the period Aprill, 2006 ···March 31, 2009.
Administrative Stipends: For the Chief Judge and Assistant Chief Judges remain at
$15,000 and 7.500 respectively .
. ';Alberto Provmciu! (>,moensotion Commis.sion Regulotion AH 111/2006
16
Per Diem for Supernumerary judges: $1060 per scheduled sitting day and, where a
sitting is with less than 24 hours' notice, the supernurnerary judge who would
have he!d the s1t:ting is entitled to be paid for that sitting, as well as for the allowances
provided all judges in sections 4 and 5 of the Cotnpensat1on Regulation.
Part~time judges: The part-time judges program should continue operating as it has
been since (Jctobcr 1) 2005. For the period April 1, 2006 through March 31, 2009, part
time judge';, \)did a salary of 50% of the amount payable to a full time judge, but if the
aggn!gat:e the part··time judge's annual salary and pension benefits payable during a
12 month t:cnn of appointment exceeds the annual salary of a full time judge for that 12
month term appointment, the annual salary payable to the part-time judge shall be
reduced by the arnount exceeded.
Pension: For Judges' and Masters' retiring on or after April 1, 2006, the pension plan be
enhanced adoption of a universal ''best three consecutive years" rule when
ctiiCtJI;.Jting penslon benefits.
Other benefits: For the period April 1, 2006 ···- March 31, 2009 the other benefits for
Judges and fVLi',,tc·rs be as provided in the Compensation Regulation.
LTDJ: Effccttvc !\pril1, 2006, l.TDI benefits be payable at 70% of the current salary being
paid t.o _judge> pC>rforming regular duties.23
2009 Commission
38. The /\ssociauc;n and the Minister made separate submissions to the 2009 Commission,
which recornrne11dc·d
Salary: lncrc·,Jsc· to $250,000 from April 1, 2009 to March 311 2010, to $255,000 from
April .L 2010 to f\Jl<:1rch 31, 201t and for the next two fiscal years, by the percentage
i This was not part of the· ~.ubrnission. It was based on a subrnission made by an individual judge.
;.1 Report and Recommer,d;)tlc•n~:, of the 2009 Judicial Compensation Commission (2009 Report) fJBA #24]
17
<Jmount rhc vcar-over-year increase, if any, in the Alberta All Items Consumer Price
Index for preceding year.
J\dministrative Stipends: For April 1, 2009 to March 31, 2010 increase to $20,000,
$15/000 ann 10,000 for the Chief Judge, Deputy Chief Judge and Assistant Chief Judges
respectivelv, then starting April 1, 2010, set stipend in these respective categories at an
additional /.ScYt) and 5% of a full time puisne judge's salary.
Per Diem for Supernumerary Judges: Maintain at the current ratio of 1/207.5 of the
salary of a full t puisne judge.
Pensions: tve April 1, 2009 and for all judges retiring on or after that date, index
pension benefit at 100% of the annual Alberta CPI percentage change.
Professional Allowance: Increase to $3,750 per year for full time judges and set at
.$1,875 per vcar for part time judges. Implement specific rules about carrying forward
unreirnbursc,cl arnounts and allowable expenses, and make available an additional $750
per judge for t years 2009 and 2010.
39. The governnlc'r!l accepted and fully implemented all of the recommendations except the
recommQndation to provide a full pension to any judge who has served for 25 years.
APPLYING THE CRITERif!
Criteria A and B- the constitutional law of Canada and the need to maintain independence of
judges and the Provincial Court
40. Because oi the overlap between these two criteria, we address them together in this
section.
41. The fv1irHstc·r submits that the level of compensation proposed in the Minister's
Compensation lncreasc· Proposal is within the constitutional range required to maintain and
enhance 1:hc indepcr,clencc of the Courc Judges and Masters.
18
SJuarante~.s.?J)ufJiciallndependence
42. The key principle guiding the existence and work of this Comrnission is judicial
independence, \AJhich (~merges from Canadian constitutional law. Judicial independence serves
important societal namely maintaining both public confidence in the impartiality of the
judiciary, and the nde law. 25
43. Valente s;:.ry:> that the Charter guarantees judicial independence, and that financial
security is one it>, three components. Both PEl Reference and Bodner reflect the principle
that the design and level of judicial compensation arrangements are one of the key elements in
securing and ma!nt<.nning an independent and in1partial court as required by the constitution.
Therefore/ to meet rhr, guarantee, 1) changes to compensation must be developed through
recourse to <in HHh'pc•ndent commission, 2) governments and judges must not negotiate
compen~;ation, ! compensation must not fall below a minimum standard.
44. The Court in the PEl Reference did not purport to prescribe what an acceptable
minimum level JUdicial remuneration might be, although it acknowledged that "the
Quarantee of o minirnurn acceptable level ofjudicial remuneration is not a device to shield the
courts jron1 the eflects of deficit reduction". 26
4~), Essentially.. 1 111· PEl Reference provides for a constitutional range of judicial
compensation; 1f \dL:H!CS are too low, it may be perceived that judges are tempted to
adjudicate in a part r way in order to secure a higher salary, and if salaries are too high, the
public's view of the ;ust:!ce system could be diminished.
46. The Comn)!:<Ym 1tself meets the constitutional standard:
PEl Refer<':'flCf' at p;;r y, ;)'Hi J0 [JBA #1]
PEl f?eferencc at pan 196 :JBA #lj
19
It is indc·pcndr·nt -·· appointments to the Commission are not cor1trolled by any one
branch go\/Crnrnent and are for fixed terms. n·
It is obJective the Cornn1ission Regulation contains objective criteria to guide its
deliberation and it receives and considers submissions from the Association and the
rJ1inister to r~nsure it is fully informed.28
It is effccti\:"C' the Commission was convened within the timeframe prescribed in the
.Juclicoture Art, government will not alter judicial compensation before receiving this
Cornmisstml'' report, and its recommendations bind government unless the
government takes specific steps to reject them. This procedure requires that
governrnent forrnally respond to the Commission's report within a set time frame and, if
it chooses not tr) i:Kcept some or any recommendations, justify this decision on a simple
r·ationalitv sl;;nciard.29
47. Overall; a(:, c!': Commission and its process constitute a structural separation between
the govcrnrnent and the judiciary} the Commission process fully meets the description of an
"institutional ;;~, envisioned by the Supreme Court of Canada.
Criterion C- the unique nature of the role of judges
48. This crit:c·rior~ reflects the critical role judges play in enforcing the law and protecting the
values of our sonc·tv No other member of our society has the same responsibility and
authoritv_->c lhc~ fv'linister submits that the Minister's Compensation Increase Proposal
recognizes thP singular nature of this role_
PEl Refer-ence at par(l<, 1 1. .:"!nd 172 [JBA #1]
E P£1 Refer;:c.:nce at pzH <:l 1 [JBA #1}
PEl f~efercnce at par~h i 14 and 17.5 [JBA #ll
1998 Report <~t p 2/ ! JBA #20]
20
49. Judges (He: unic1uely subject to public scrutiny, and despite their understanding of the
facts and law m cannot respond to criticism no matter how ill-informed or unfair. 31
Provincial court i spend much of their time adjudicating between the Crown and its
citizens and as ~dJC h, judge is the arbiter of important constitutional rights of citizens and is
the protector of rights against t:he power and expanse of governrnent. 32
50. of a judge does not equate to that of a politician, bureaucrat executive
leader or .Jdvocill!\ judicial compensation ought not to be determined by any direct
relationship to 3'}
t'/ lr;vels of government employees.-·' Similarly, the salaries of private sector
decision-makers ;n c· not ::,uitable comparators.
Criterion D - the need to maintain a strong Provincial Court by attracting highly qualified
applicants
51. The Ministc1 subrnits that the Minister's Compensation Increase Proposal will fully meet
this need.
52. Tile t)xisting court represents an overall high standard of excellence. Without exception,
its rnernbers arc highly experienced, qualified and competent There is no basis upon which
this Commission be at all concerned about the quality of judicial appointments
previously made in .1\ibcrta, nor about the number, or competence, of current judicial
candidates. I regarding recent judicial appointees in Table 1 demonstrates that the
standard of excpiif•ncc· is being carried on: recent judicial appointees represent a balanced
cross-section of /\!b~>rt
from the private.
lawyers; all have been relatively senior, with a balanced proportion
jt; and corporate sectors.
2009 l~eport .it p !JBA #24
2003 Report at p 32 !JBA #22
1998 Report ;1t p 2,1 )JBA #20 2003 Report at p 32. [JBA #22)
;; Thc· information :n !<iLl•> rom a series of GoA News RPieases since Aprill, 2011, copies ot which are at TAB
#1. 21
~JJ~.!1l.?.\51.D~t~;~r~r:Lof excellence of the Alberta Provincial Court
53. Table 1
!' ____________ , ___________ , .... ---·--·--·-·---,--- ·- . 1 Appointment I l Date : '""'""""'""'"""'==--"'"""=-----~----·"'~" ... , .. ( )() 11 .Apnl ·
particulars about the 28 judges appointed since April 1, 2011.
Table 1
provincial Court Appointments Aprill, 2011- May 2014
~- _ J~dge- --- 1 L~~~n J y~;', :i .. ~~--~th~~~~~-~-~-~:.~:~~r -l r; r f ·1d:.on l Edrnonton ·, 21 t Worked (losely v.:ith
1 Crown prosecutor I
oc.
· Criminal ~- vulnerable populations with both Alberta
I including irnrn1grants. lustice and the j
I
~)eniors and adults v.;ith Federal Prosecution i
mental Uness Service; In-house
throughout legal c;:neer,
1
. Corporate Solicitor
I for Alberta Treasury
··lc;;~g~;;-. - -+ zs ···-ls~;~eciir, ~;;;;:;~;;;,~; ······-··· -+ ~;~~J~~~t;z.~~--1 I r:apJcities within the both small (!Vii
I
I ' I
........ -----~--··----·-··········-------···1 ! Medicine !
Hat
I I
'I CBA, including ;v; {Beaurnont Church
_ president of the Alberta LLP) and large
Branch from 2004 to (Thackray Burgess;
2004 Burnet Duckworth
Palmer LLP; Madeod
Dixon LLP) firms -
proctici~d prirnarily in
corporate litigation
and insolvency taw. Most recently the
director of r
professional j
cieve!opment (lnd
1
.
risk managE~ment at
. . . l .. ~f~.~:.l.~<i__[)J xon __ ~:.~£.:_ _______ j Crown Prosecutor I I I Sessional lecturer at
. Athabasca University teaching civillibertie5,
administrative \aw and i the Canadian legal
~;y5tern for 11 years.
Ac.tiveiy invr)lved in his
community: vice-chair
of the Carriage House
The<1tre board of director~, ;md president
of the B\ue ;md White
t\lurnni Association
Crimina\ Defence/ Private Practice in
smal\ firm {Zutter
and Bent) and as a sole practitioner ·
i practiced family and criminal law; youth
uirnina! defence with
the Legal Aid Youth
Office; and at time of
appointrnent wac, a
Crown prosecutor in
\ Lr:~thbridge_
_____ j ________ ---------------··'-- ------------------------ ---------
22
,-·········-Ap·~·i·~ tn~·~;t···-···-r··-··
! Date 1 f:::m:~:::::~~:::::.::o"m!'l:::u.~;::::~::::~:::::::}.::.-;_:-::::
! 20.11 fv1av
2011 August
-····--------,---------.--------. ---;he:~articul:---[·- Public/ -
Judge
·, J\:::Lew, OC:
·=•>=>·"="=·=··=··=· ·~ .. ..!!.ivate Sector faught courses for the 1 Crown prosecutor/
Calgary Police Servic(~, Criminal Defence·····
thP RCMF'. the practiced as defence
Univer~,ity of Calgary,
and the Legal Education
Society of ;\!berta.
coun:.el with Legal
/\id Toronto; worked
as a Crown
Prosecutor in
Ontario; instructor at
both Mount Royal
1 College and the
1 University of
'I Lethbridge; Crown
Prosecutor with the
J j Calgary Crown
I j Prosecutor's Office
1 1 and was Assistant
, I Chief Crown I I I l Prost~cutor at time of
- ~~n>onton. _L ····-~ci"i~~t"Ei~~(;d[i(:~d,;;:-r o-r"th; . ··~ ·~;;~;~~~~;et~-u-to_r_/_ Region I Alberta Law Society for General practitioner
I ······jEd~nonton ..... l.. 35
fi1mily &.
( Youth
i
!
the previous 5 years and (further information
Wil~ a board rnernber of unknown) -practiced
the Hinton Native
Friend~hip Centre
Soctety for the pa<;t 10
primarily criminal
and matrimonial law,
specializing in family
I year:;.
II
'
.t~boriginal justice
1
.
violence and
initiatives; became
Chief Crown
J j Prosecutor for the !
~:~~~~~.~:~~~,~~:~~::+~1~~~~~~~;~~~--~ 1
1
~Society of Alberta . ! ~artnershlp (Andrew I 1 ~ern:nar' .. df· <'cttvE~ 1 ,'?,Donahoe. latl'r
i member of thp C:BA; becoming Andrew
\ voiunteer rnernber of f. ngels zmd Oake LLP;
! the BoMd of Directors ot further information
Edmonton'~; Food Bank unknown) and sole
horn May 2002 until practitioner; 1 May 2009.: volunteer practiced primarily
B<1ard member for CKUA family law for 27
H;1dio Fmmcbtion. years; was an ad hoc
p:·osecutor for five
i years; appointed as a
· Sitting Justice of the
PPace in January
7.009.
............ --··J~ ···-' ·-···--· ................... .i ..•.•.... ·----·······---·· .. ···
23
t==A=p=p=o=~=:~=.:"'."' =en=·t==·*'"·~·"'·""~="'·~·"'··=JL=Jd=g=e===·="'""""+ .. =····-=--L= ... ~-·~ .... :~_~=~·=:I.y~~~·~r-~~-.~;a~culars ·-2011 Augtbt t)inkel, QC Calgary l 22 ~teered with the
Crir~ina! ~~ I Leg<ll Aid. Society of
l Albert.'! Jnd most
!I I recently served a~ a
Edmonton
Crimina!
Calgary
Crirninal
27
28
24
member of H1!:~ Boar(j of
Directors; President of
the Calgary Cr irnina!
Dc·fence Lawyers
Association; sat on numerous court-related
committees and was
most recently the Albert<l Defence Bar
Representative on H1r:• Court Case
Socif~tv of ,o\llwrta:
mentor witl1 the CBA
Mentoring Program with
U of A lilw ~;tudents;
guest lecturer
presenting at nurnerou~
society events and
educational institutions
across the province.
Served in the Canadian
N.wa! Reserves for 23
years (including as
Cornrnanding Officer of
HMCS Tecumseh and HMCS [drnonUHl); in
2005 received the
Albert<' Centennia!
Medal awarded to
Albertans whose
;:~chievernenb h<IVP benefited their fellow
Citizens. their
community and their
province
. Public/ ·---~
Private Sector J Sole Practitioner- (
practiced almost
exclusively in
criminal defence
work
Private Practice
{Nickerson, Roberts
8.. Hilborn and G.
Brent Gawne & Associates}, sole
practitioner and LSA
Counsel- practiced
in the areas of
criminal and civil
iltigation as well as in
administrative law
until joining the Law
Society of Alberta in
2000. Crown prosecutor for
28 years; appointed
Chief Crown
Prosecutor in 2002
I
I
I
2012 i\p;il
)0::: l\ugu~:t
- .!.~~~ -~ _-jr--~~~~~;n}r Ye:~•~r. .. ~~·~~~~"'::_J~~;~%:~ ' .. ,1,; C.~lgdJY 37 letturr>d cornrnt>ro.ial Private Practice
1 Cnrn1na! 1 1
!,1w at the Un1verstty of \further mfo~·m~t1on 1
· ·' leod Crimindl
'
I I I
.... j ..
I
W1twater:;,rand tn Soutn unknown)-- tn1t1ally ! Africa <md civil practiced as a i procedure <1t th!;' U of C:; barrister in Africa I sat on comrnittet>s of focusing on I the CBA and t~lbertd Law international
Society Jrbitration, both
construction and
! comrnercial; joined a firm in Calgary specializing in large
scale commercial,
corporate, oil and gas
I and product liability
~ . lit'1gat'1on. i
2 6 ...... ··~ V~;·~~~;t~>erE~d·~;·::-;; .. g~e;·t ..... ·t .. r.;·~-~~~t~~ .. f;·~~-~·t·~~-~ .. -~-;;-d ....... l I I I I I
speaker or lectured in ;1
nt~rnber of cdpacHie~;,
including at the U of C
Law School Tridl
J\dvocacy law progr<lrn.
dt the federal
Department of Ju)tice
federal Crown
Prosecutor ... initially
in private practice;
then establhhed ttle
Calgary Federal
Departrnent of
Justice Office;
and at the Calgary PolicE' : rl'turrwd to private
Service Chief Crowfoot ~~~ p;actict:~ in mid-size
Trdining Academy. firm {Walsh Wilkins
I Creighton, LLP), specializing in
I ______ j __ _ . ..lidrnonton I
Civi!
I 34 ....... l. I~PceivNl Q.C
j litigation and dispute
! re5olutton --··-·-·t·rr~~te Practice~ .. ---
··············--!
I ···-.. ·---·-····· ... 1
Calg.'lry
Crimin<J!
l designation in 2000;
served as Practice
Heviewer tor the Law
Society ot Albert d:
rnernber of the Paralegal
dnd Unauthorized
Practice Cornmittee and
Civil Practice Advisory
Committee; past
pre~.ldent of t\w Edmonton Aurora~
Synchronized Swimming
... +~---·-:;-] ___ .... --·+-;~~~~~(!~i-~lthr~~~-ye;:l·;: .. ·- ·-1 ,_ ·- term ac, a member of
\ t\w Aga Khan brnai!\
Conciliation and
.Arbitration Bo;Hd of
Carnda
(
l _ .. t_ ..
25 ....... L ... ---- ......... ~-- -~-·····~--·,...,.._ ........ -·~····
practiced in the areas
of civil litigation,
administrative> law, ' labour law, municipal
uw and criminal law; helped establish
I I j
Sr1arek Logan & van l Leenen LLP (further
1
information
unknown} where he !,
practiced until his
appointment. ·!
P;:i·~-~t;rractk~----~ e:,tablished the firm ])!
J\vraj Knight &
Pritchett in 1991 i (further information j'
unknown) and
practiced both civil
litigation and
criminal defence
. J .... --... ____ ........... - ............. .
( ·A·p·p~i~t-~1ent .... l '"=· """""="""~~~~'"""'""'"' "'"""~""''
20J/ N()'JC·rn!r
201 '3 fvl.:nch
7013 1\pr!\
--- ] .. Sltting ]Years at .. ]- - ·····--- ·-·-··-··------ r-·-·---· Public/
J-t~~~-~ ===·-· .. location m .. =-~~ .... - '"""·="'~~~~~: .. ~.~~.~.:~~~-~~~ .... ,.,-=*,.'",..._frivate Sector .:. y'liHL OC I f.drnonton ! 31 J /\ctive in rn;1ny Privatt~ Practice ....
lJonald, OC
Family & I cornmunity and rnid·size firm (Cieall
Youth ! profps•;ional Barrister<.. & organizations and Solicitors)
~,erved il'; a director of
Crirnpstopper'>
!>pecializing in
cornmercial civil
! I I j applications for
1 ntigation; prosecuted
narcotics offences for
Justice Canada and
handled child welfare
········----1· .. f. d n~c> n t ~~~··- 2 0 ....... -.... f .... i .. ~;·;t~:·~;·~·t~~ .. f·~;r ... (;·;·;~~·t· ..... -.. ··· ·J : :.~~:;tt;t; ~; ~~ ~; e __ ... --.
Crimina! ! MacEwan University and ~mall firm (Pringle
I the Can<:.1dian Centre for
1 MacDonald Bottos)
1
1 Professional Legal tor 20 years doing
£duc.at1on; sPrvPd a:; criminal dt.JfenC£~ as ' Chairman of Legal Aid well as legal counsel
J I , /\!berta's Board of , 'or the Edmonton ,
,;,\ nkc1 r :oc- -+N~rt;;~;;;- + ·· ·· 26 t-~~tf;,~o~~n;t;;r-;;;~;~,- ) f,~~:~::;~~~~c~ j Region I · cornmurutv; served as ' (further information I
High Prairie
I
----· --l c:;igJry
I !
Family &
Youth
i ...... l ...
I
29
Chair of the Peace ! unknown) -·focused
Regional Victim Services i on matrimonial and
SociHy <md <h a criminal litigation
member of the Lega! Aid ,
-~-P.-.PJ~~~~S:~.r:!~ m ittE;_::__ .. ··-t~· :·-........ _ ...... _ ......... _ ......... ~ · Served as Presiding 1 Private Practice 1 I JL~:>t:ice of the Peace for I (further information j 1 Alb~~rta; Judg€~ Advocate li unknown).. i
for the United practiced crimina!
Kingdom's turned I litigation
Services; mentor for
Junior criminal lawyers
and was on the Calgary
Legal GuidiHlC.e board of i director', for over/
...... + ye<~.~s ......... -.. -· ..... -.... --·-·--·- -· Active in the community
<..erving as d senior
rnprnber of thP Wetaskiwin Ki~vani•;
Ciub, tht~ \/v'etaskiwin
Big Brothers and Big
Sisters Club, Wt:taskiw!n
Farnily and Community
Social Service~>;
, Chairman of thr-: Executive Cornrn:ttee of
the Sutter fund and the
Horizons CentrE~ for the Mentally Disadvantaged
Children
Crown Prosecutor
\provincial) and Private Practice
(further information
unknown)
I I
I I
____ _i .... l .... _. __ ........ L. ......... _. ___ j 26
r~.~ppE;::J . __ Judge -~-r-L!~!~~~-- . -~[ -~;~.: Pa~•cu;:--t=·-=-P,.,riv ... : ... ~ .... :_1~ .... ~ ... ct .... o .... r_·--"1==41
! 201.3 June hJ•'i' '; 11 hllm;trorn, otfrdrnonton . 30 "', A~t;;rnedi~.,~~="' Private Practice
7013 DecFrnbc:-
I Farni\y & \ a;; one of the top·r;;mked (further information
' Youth I insurance lawyers in unknown)-···
i i
P:;yf;l)l·j r.~;)-ci~~~;~ek, 6c-r--r"d~·~;·~t·~;·~~ ... --t Crlrnlnal
Northern
Region
Hegion
I
I ..... L .. 27
l Canacid by a peer- practiced primarily in
revh~Wl'd ~;urv;;•y the area of civ\1
I publtshed by the litigation witt1 an
Nation;:d Post in 2001 emphasis on risk
l and !>ubsequent vears in rnan<.tgernent and
Rl'S1 Lawyer~.: insurance defence
volunteered with the
Ltw Soci~'..'ty of AlbPrta
and as a coach of rnany
different youth athletic ! I program~; .... .\..---........ ---- ·
... -27·----1, A u~ited.\v·,;y .. :~~-j~~;teer; · Public Sector- ----1 co-chair of the Canadian worked with Alberta I Cf•ntre for Court Justice for rnost of
Technology and a his career; Deputy
I'TH~Inber of the National
Action Committee on
!1ccess to Justin' in Civil
Mini::.ter of Justice
(since 2008)
, and Famiiy matters , · ..... ____ .......... -t ....................................................................... -·-····---t ..... _ .. ____ ..... __ ......... - ......... _j 27 SPrved his community Private Practice--· I
on the Albt:•rta Legal Atd practiced in a firm
1\ppeah. Cormnittee ::ince 1990 and was
chair of tf)f.:' comrnittE•e
for five ye,Hs
33 'l" I
I
I I
1 and as a sole
practitioner in rural
1-'\lberta (further
information
I unknown) in a i ....... J .... ~~.:..~.~E .. ~.~~~-~~l~J
I Private Practice (in '
Carnrose, further
information
unknown)/Public
Sector ..... practiced in
the areas ot tarnilv !ti\.N, personal injury
<mel wills ~ind estates; then worked with the
, Farnily Law Office in
Edmonton, a
prograrn of Legal Aid
Alberta, until 2007
when she became
president and CEO of
Lt~gal Aid Alberta
. .. 1 .................................... - ... -
Appointrne~t ..... l
h014"J~;~;~7 J - ·l-- · -·-s·;ttlng ··--·-]···-y;~~-;·;·t]··----·· ·-- ~-··--···1-- · Public/
-, .. !.u"~~:.""~""'"·--'""·'" ,,,.J .. ~~s~ti~.~.-~·· ,.,. -m •. ·~~r. ,.,.,, lN """'"m~ .• ~~)~l -~~~:..~.~.~~~-~-"" ., o+mm_!,rivate Sector ·!+l~Wau, OC Edmonton ! 24 I Involved n educdtlng . Crown prosecutor-·-
Criminal . ,I; :.~~~~;c~::~·:€~~t~~~~;;~~~;w \ ;r::~:c~:~r~ appellate
and the public on a wide counsel and most
variety of topics; was on f1:!cently as the Chief
the [xpcutive of the Crown Prosecutor for
. --~-~ .... -----····---J '.V:n·~~ .. :rg. O.C Edmont~~~······· .. (
Region
I 1,
,, ,, .. lo:uc---f~t~~ "1
)
i
28
£drnonton Bar the Alberta Crown
!\ssociatton and variOl.h
cornrnittees of the law Society of J\lbert;;
Prosecution Service's
Edmonton
Prosecutions Branch;
created the province·s
rybercrime ! I prosecutions unit he !_
1
I. ~~~ contributed to
significant I I developments in law j
I 1
1
. and legislation that l <!ddress internet
···--j-------·-·········-···········-·············.-" j .. :f~r;·~-~a0--~t~~=P!~r1.:a' rc~t.h1.-ci·.e1
d. __ j 28 Worked for nearly two · v <~ ! decades with l.<':gal Aid I (criminal defence,
29
'j Alberta and served as further information
Pres1dent of the unknown) and Public
I Cmnm<ll rr,al LdWVe' ~. Sector dS Crown I
l 1'\•,soclathd't prosecutor and then
' D1rector of the Civil
~ .. __ _ ___ ----~orfeit~~?fftc.~-····l l /\P dVIO <:-ducat.on arted j Crown prosecutor
,Js an mstructo· .:lt t~1e {fo:.>derdl and
Canadian Centre for provincial)/
1 Professional Legal Public Sector--
Education and for
several iegal education
programs: ds~;isted in
important innovations in
Alberta's legal system
with his work on the
Court Case~;
Mi~nagement Project
and Mental Health
Diversion
served as an
Assistant Chief
Crown Prosecutor,
the Director of
Enforcement with the Alberta Securities
Commission; his
latest position was as
thE• Director of Policy '
at the Appeals, , 1.!
Education and
Pros(:•cution Policy
Branch with the
J-'\lberta Crown
Prosecution Service
····-·--······J
Appointment · ··-si-tting·····-,-· vear;·;t ----·- .---·--·c--PublicT _____ _
f"""~=""""==D,,a,,t""e,, ...... ,,.~,,,,,,,,,,_,J,,,,,,..,,,,..= ........... , ..... , .•• ""'J"' u"'"d"=g=e··,===''"==f=~l;;,o;;;ca~t;..;,;,ion Bar ~~~e.~ Pa ~:.~~~"~= .. ,.,.,. Private Sector 2014 fV1i1V J.:Jn'''· G1.;c:<;, OC Red Deer 26 i\n LSA Bencher since j Private Practice (mid·
Region 2008; mad additional
1
. me firm, Duhamel
Edmonton
Region
Edmonton
Hegion
30
24
contributions to Manning Feehan
Alberta's legal I Warrender Glass LLP)
comrnunity through hi~; ·····practiced in the
coordindtion and <lfeas of criminal .. civil
promotion of continuing and famiiy law
~::·ducat.ion and
proft>s~.ional
development of hi\
w\ieagues; voluntC'ered
with the Central Alberta
Refugee Eifort and as a
past president <md current board member
of the Parkland Hurnane
SPC/\. Alberta Civil Trial
Lawyers A5sociation and
the CBA.
Co founder cJf Kid',
Kottage, recipient of
C{ueen EliZ<lbeth II Diamond Jubilee 1\'ledal, the Alberta Civil Trial
Lawyers Association
President's Award and
the Kevin Carr ~~eurnan
Theological Award, has
servf~d on boards of
numerous charities
Recognized ;1s an expert
on the topic of the
oversight and
investigation of police
t:tnd has 11-::'ctured across
Cmada ;wd thf' U.S
Private Practice (mid
~;ize finn, Biamonte
C.Jiro & Shortreed
LLP)- pr.Jcticed in
the areas of
corporate
commercial
litigation, fatal
accident law, medical
rnalpractice, general
insurance law,
ernp!oyment and farnily and crirninal
iaw
Crown Prw... t(l
Public l..aw-
in a wide variety of
roles throughout his
career; last position
vv·a.s as the Executive
Director of the
:\lberta Serious
Incident Response
'ledrn; served as an organized crirne
prosecutor and was the lead prosecutor
assigned to the
RCMP KARE program
S4. As shown in fable 1, the 28 appointees were senior practitioners, with an average 27.6
years at the bar ~/lclst of the appointees (19 out of 28) were Queen's Counsel, and were
significantly mvolvcd in one or more of a wide variety of significant community, professional,
29
and charitable act\\'it The appointees represent a good cross-section o·f Alberta lawyers,
in their professional practices. 13 came from or had experience in the with considerable
public/corporate ·)(.~:ctcJr, and the rest from a mix of larger and smaller private sector firms. 11
out of the 2.8 had bc~~r> Crown prosecutors; 3 spent most of their careers doing criminal defence
work.
::;s. /\FE # 1 ~>et t HJt • •. ome basic demographic information about the currently active full-time
and part~tirnc a r 1d Masters. Their average age at appointment was 54.79 years.
.56. i\pplicants lor provincial bench must first be approved by the Judicial Council.35
Once approved. d :.dndidate must be interviewed and approved by the Provincial Court
Nominating Cornrrdttf~(· (PCNC), which consists of eleven members from the Alberta Provincial
Court LSA .. the c:zm Bar Association (Alberta Branch) and other members of the legal
profession and the'
57. Candidates <lpproved by the PCNC are placed on a list of candidates deemed eligible for
appointment. fv1inister selects from the appointment eligibility list and makes a
recommendation tc Cabinet. If Cabinet agrees, the Lieutenant Governor issues an Order in
Council appointing t nc•w judge.
58. /\FE #2 SE>ts out information about the pool of judicial applicants, with statistics at
different points rn t1n1c' including April 4, 2011, April16, 2012, May 28, 2013 and June 11, 2014.
It shows that as <Jt 4, 2011:
See TAB #2 tor iniorrr:·!tiun available on the Alberta Courts website, including a brief description of the judicial
appointment pron~ss Judkial Council consists of the Chief Justices of the Court of Appeal and the Court of
Oueen's Bench or thc1r the Chief Judge of the Provincial Court or designate, the President of the Law
Society, and two pers\1n·, ,q:,pointed by the Minister.
30
•
•
The
f'C'COIT!
()f the·
rc)commended 91 candidates for appointment, including 34 as highly
(38%) and 57 as recommended (62%);
recornmended candidates, 55 carne from private practice and 36 from the
public or corporate sectors;
• Of the' 3:.1 h1ghly recommended candidates, 18 carne frorn the private sector and 16
from the ~JU!Jiic or corporate sectors;
• The: avl.~r dgc "vears at bar" of PCNC approved candidates was 27.62;
• 'The ;aver ;Jge of PCNC highly recommended candidates from private practice was
~)5.44, dlLi 4f:, from the public and corporate sectors.
59. AFE #2 shows H•<H as at April16, 2012:
• recommended 94 candidates for appointment, including 44 as highly
r(~cornrrH'rH:lc'd (47%) and 50 as recommended (53%);
• Of the t:Jli recommended candidates, 57 came from the private practice and 37 from
the pub!k or rorporate sectors;
• Of the 41\ highly recommended candidates, 28 came from the private sector and 16
frorn the or corporate sectors;
• The: aver ,'lgc 'years at bar" of PCNC approved candidates was 27.53;
• The aver age of PCNC highly recommended candidates from private practice was
56.64; and S2 .81 from the public and corporate sectors.
60. AFE #2 shovJ<, t lldt <1s at May 28, 2013:
• The PCNC recommended 92 candidates for appointment, including 48 as highly
rccornrnendcd (52%) and 44 as recommended (48%);
31
61.
62.
•
•
Of the rc~commended candidates, 54 came frorn the private practice and 38 from
the pub!,c or corporate sectors;
Of the· liS highly recommended cand~dates, 29 carne frorn the private sector and 19
frorn th1) public or corporate sectors;
• 'The average "years at bar" of PCNC approved candidates was 27.65;
• The average age of PCNC highly recommended candidates from private practice was
S'7.44, 52 from the public and corporate sectors.
AFE N2 as at June 11, 2014:
• The PCNC had recommended 65 candidates for appointment, including 33 as highly
recormncrHied (51%) and 32 as recommended (49%);
• Of the 6_') recommended candidates, 33 came from the private practice and 32 from
the publ1r or corporate sectors;
• Of thr· !Hghly recommended candidates, 17 carne from the private sector and 16
frorr1 t nub!ic or corporate sectors;
• The average· '·ypars at barn of PCNC approved candidates was 27 .08;
• The average age of PCNC highly recommended candidates from private practice was
58.17, and 1) :L8 7 from the public and corporate sectors.
At dny g1vcrt rd.: in time, there are a good number of recommended and highly
recommended judici;tl candidates on the PCNC's list [AFE #2]. As was the case before the
previous C:omrnisston, H1c' present flow of excellent: candidates remains strong. There is no
reason to believe thi situation will change.
32
Cornpec!5:.~1i..QJ.L .. ~;ompared to that of federally appointed judges
63. Because ,di iudicial appointments in Alberta come from the same pool of lawyers,
previous Comrr~~~J\nn have acknowledged that the salary gap between federally and
provincially appointed judges should be harrow enough so as to not economically dissuade
prospective jucl!ci<ll candidates from selecting the court to which they are best suited. 36
64. However. r1c· 2009 Commission stated that distinguishing pay levels for federally and
provincially appoir'ltc'd JUdges is justifiable. Their roles and jurisdictions are different, and there
is a recognized within the judiciary.37
65. The Min supports this view, but consistent with his position before other
Commissions, poir1 ·. CHit that regardless of the level of compensation, there will always be
lawyers who prefer . 38 n ;Jpporntment to another court.·
66. The Minister'', Compensation Increase Proposal represents a reasonable balance
between the relevant LKtors.
Specific Consideration of Criterion E • the Remuneration and Benefits Other Judges in Canada
Receive
67. Remuneration and Benefits Other Judges in Canada Receive".
Historicai __ ConJJ.:!ensation Comparison -- Alberta Provincial Court Judges and Other
Canadian F:..r9.\0.Dsial Court Judges
68. It has been generally accepted by previous Commissions that, as judges play a unique
role in society, ,: pr nn<1ry consideration in the determination, at any particular time, of an
2003 Report ,;t pp 3() 7 jJBA #22] and 2006 Report p 12 [JBA #23]
2009 Report at p 33 lJBA #24
2003 Report Jt p 3 7 lJBA #22
33
appropriate level cd compensation for judges is a review of comparable compensation paid to
other judges.
69. The 1998 Cornrnission specifically looked at where Alberta Provincial Court Judges
"ranked'' as
Report) the
#20].
other Judges in Canada (including Federally Appointed Judges). In its
included a comparative judicial salary table: 1998 Report p.10. [JBA
10. In ib Report. Hit:' 1998 Commission included the following comment:
horn our p 1 • at the risk of generalizing, a comparative analysis of other jurisdictions is
ch::<Jriy instr u:: uut not determinative of the appropriate compensation for our Provincial
C:oun ,, number of reasons.
1998 Report p. 31 [JBA #20]
71. ThE? 2000 Cornrnission Report also specifically included a table comparing judicial
salaries acros<:> Can:Kl · 2000 Report pp.ll and 12 [JBA #21].
72. In it-; Report the 2003 Commission noted that it had) " ... carefully considered the
compensation oi JUdges in Canada": 2003 Report p. 37 [JBA #22]. Further on, the 2003
Commission stated that} " ... we recommend that an Alberta Provincial Court judge continue to
be paid r1ear the the salary scale of Provincial Court judges in Canada": 2003 Report p. 53
[JBA #22J.
73. The Report the 2006 Commission once again included a Table comparing judicial
salaries across Canada: 2006 Report p. 13 [JBA #23].
74. In its Report, t 2009 Commission also specifically noted the relative importance of this
criterion. For instance· it stated the following: 2009 Report p. 53 [JBA #24].
34
75. \Nhdt masters performing similar functions in other jurisdictions are being
paid can provide gu1dance with respect to the adequacy of their remuneration in this province,
and offer a rncasurc assurance that the key constitutional requirements associated with the
compensation of as previously articulated, are being met.
76. Past cornn11<,sions have all identified this criterion as one of the more important ones
rE·garding dPvc!op\ng recommendations. /\t the same time, past commissions have also
expressed the c<.lutu;r;_ which we adopt, to not let this one criterion completely overshadow
othPr factors t ht1t properly to be taken into account to arrive at our conclusions.
T7. The 2009 Cun1mission also took the time to review and analyze in some detail the
differing submisslU<i·; the Association and the Minister in respect to this criterion and its
specific significance m ,Jpplication to the circumstances with which the 2009 Commission was
dealing with: 2009 Hcport pgs. 19- 21 [JBA #24].
78. l n this the 2009 Commission specifically noted that while both " ... parties
agreed~ genert1IIV: th:lt _Alberta appointees, when compared to other provincial judges ... should
receive compensdt icH1 'ncar the top~~ in Canada (that) this general consensus· did not translate
into agreement ( has happened in the past ... to Jointly support specific salary
recommendations. · The 2009 Commission further stated that '' .. while expressing a similar
sentiment, it w?.s <~pparent from the written briefs and the oral submissions we received that
there was significant divergence about how this common general observation should translate
into concrett~ salarv positions": 2009 Report pg. 19 [JBA #24].
79. The 2009 Conm11ssion further noted in regard to these issues the Association that both
the Association ano t.h.c f\~inister referred to Ontario as being an important or key comparative
jurisdiction. It notc'd that the Association also referred to the ~~federal jurisdiction" as especially
important.
35
80. in regard tel it referred to as "--· undertaking comparisons of judicial compensation
between jurisd1ct , , the 2009 Commission referred to onE.~ of lithe challenges" in doing so as
resulting fron1 l .Hl that ~· ... parallel compensation review processes take place federally and
in other province~ t different times (with the result that the) ... periods for which
compensation r:HT.:.lngc'n!ents are in place in one jurisdiction will not necessarily align with
periods for which pay has been fixed in another jurisdiction/,>: 2009 Report pg. 20 [JBA
#24].
81. The 2009 CiHnrnission noted that the parties had made I' competing submissions" in this
regard and
compensation
d:na on
-'><pressed its preferred way to make such comparisons of judicial
jurisdictions as follows: 2009 Report pg. 20 [JBA #24]:
: ,1dc~ress the vagaries of timing of different compensation-setting processes in
ic.qs is to consider trends that the comparators exhibit, rather than isolating
This will tend to even out year-to-year variations.
82. Applying th;;n rnethodology to the data presented to it, the 2009 Commission then went
on to make the fc;l!owing specific observations in regard to what it referred to as "inter
jurisdictional cornpadson:;" of judicial salaries previous to that titne: 2009 Report pg. 20 [JBA
#24]:
Rro<Jdiv
folloviing: ki'V trends that we derive from an examination of the data . ., include the
Salaries of federally··appointed superior court judges have typically
exceeded salaries of Alberta Provincial Court judges; in the p(~riod that
independent cornpensation cornmissions have been operating, since
1998, up to April, 2009, the gap has r angecl betwE~en 7% and 19%,
averaging 13% over this time frame;
Pay of Ontario and Alberta Provincial Court judges has historically been
aligned more closely; since 1998 differences have varied between 0%
and 14%, averaging 5% (with Ontario salaries exceeding Alberta salaries)
over this full period;
!n 2000, 2003 and 2006, when the past three Alberta Judicial
Compensation Commissions issued their respective reports, they
recommended salaries for Alberta judges and rnasters equating to 99%,
97% and 100% of Ontario salaries in place at those respective times; the
36
trend has been to more closely match pay between these jurisdictions
over the last decade.
83 Included in its C'Xplanation with respect to its specific judicial salary recommendations,
the 2009 Comml~!slcHJ recognized the validity of the traditional ''gap" between the respective
salaries of federd! rdld provincial judges. Specifically it stated the following: 2.009 Report pg. 33
f.JBA ff24]:
"v.;c <:KcepT cor1·~:.,\stent view expressed by past Comrnissions that there rernains justification
t•J di~:.,tingubh n;xy L;:·vels for federally and provincially appointed judges. There is a recognized
hierarchy VJitJw: the Judiciary, and there remain differences in the roles of judges of the superior
and provinc·i;;li courts. Our salary recommendation is Intended to pre~erve what we consider to
be .1 c;uitab!c <:die! ence between salaries for judges of these courts. While opposing arguments
werP ildvanc(<! before us <lbout whether or not retaining this compensation gap between
superior :met puv:nci,!l court judges was still justified, in reality no one advanced the position
that the g;_J;J L• -kr inated.
84. Included 1n !J. P><planation with respect to its specific judicial salary recommendations,
the 2009 Cornmissicm <dso recognized the validity of maintain what it agreed was a traditional
linkage between rc·spective salaries for Alberta and Ontario provincial judges, which it
referred to as "appr<)xnnate parity". More specifically it stated the following: 2009 Report pg.
34 [JBA #24]:
Maintairilng <'JP;)rn>inJate parity between Alberta and Ontario provincial judges over the term of
over the tern1 iA our mandate reflects the pattern of recommendations tron'l judicial
compensation missions in Alberta over the last decade. There have been individual years
when one ct t provincial comparators has diverged from the other; primarily, it seems,
bPcau;e of thr, >.<Jg;vir:s of the timing of compensation review processes in the two jurisdictions.
However. nvcr;i\!, \Vf' detect a strong linkage between pay levels in these courts which we think
reasonablt" to n::mnair;.
85. 'The 2009 (JJrnmission rejected the Minister's submissions that based on a historic
cornparative analy·::,!~. H1C' Alberta judicial salaries had usually been at a level of 95% of the
Ontario judicial salaries. And the 2009 Commission further noted that ('the relative economic
standing of these two JUrisdictions as it has evolved over the last decade" was additional
justification for the· of /'approximate parity". Specifically in that regard it stated the
following: 2009 RC'PCH l pgs-.. 34- 35 [JBA #24]:
37
·,;·,;e v,_:1r h the submission of legal counsel for the Minister that a longer-term view of the
!'elationship '' Tvv1:en Alberta and Ontario cornpensation levels supports keeping salaries
for /\!bert.: at 95% of Ontario salaries. The notion of a persistent S%1 gap in judges' pay is
not rc~flccU'ci ,n the recommendations of the past several Judicial Cornpensation Commissions.
Nor is P<lV for judges in Alberta compared with Ontario in keeping with what we
perceive to tif' the relative economic standing of these two jurisdictions as it has evolved over
the LJ~;t dcc;1cc ur more. Alberta, despite difficult economic times that impacted the province
and the countrv (indeed, the global economy) in 2009, is still, by rnany rneasures, in an enviable
fi~;c ai po~;!tinn '· 11 ·p<~red to Ontario and other jurisdictions. Quite simply, Alberta can well afford
to rn,1tch O!i'. • 1 ( (o·rnpensation levels.
86. It is, howc·vc·r, critical to also note that the 2009 Commission expressly remarked that
Alberta should not \Imply base its judicial compensation on that In Ontario. It noted that a
consideration of the judicial compensation in other jurisdictions was only one of the "criterion//
upon which Alberta judicial compensation was to be based. And it further emphasized that the
basis for the of Alberta judicial compensation should be one "made in Alberta".
Specifically in that regard it stated the following: 2009 Report pg. 35 [JBA #24]:
\:\/c· c.L> no:
(~Xt'f(',Sf: Iii
r hat the only criterion for setting pay for Judges in this province should be an
Ont~:~rio's lead. We can, and should, have "rnade in Albert~( sal~nies fp_r
f2.CQ..Y..!rlciaj_(,l}t:Jr 1 j_t.IS,i_g_es .. Q .. nd rn . .9_5ters. Our salary recommendations. overall, are intended to
dcnicve thi:·, n;:,,_,!: \Emphasis Added]
87. In face and Vi::>rv notably, a review of the specific judicial salary recommendations which
the 2009 Commiss10r'1 rnade to apply over the entire four year period it was mandated to deal
with is dearly iliustr of its allegiance to both of the above noted objectives. Specifically,
those recommendations sought to maintain overall an ''approximate parity/) of salary between
the Alberta and Ont judges over the said term but such objective was subject to certain
(/made in Alberta"' considerations which inevitably led to variances in such parity over the said
term.
88. In th<:tt , the following comments of the 2009 Commission are notable: the 2009
Report pg. 34 [JBA #24j:
The increases we recornmend for 2009-2010 and 2.010-2011 will put judges more or less on a par
again with thr-n Ontario counterparts, when viewed over the time frame for which we have
CO!Tlparativc· d ltd ;waiiable. As of April 1, 2009 the salary of $250,000 we recommend for
38
./\!bertd cc'lnp;;~res to a $248,057 salary in Ontario. As of April 1, 2010 the ;\lberta salary
would incre<:l ;;· ro ~;255,000, while the Ontario salary was fixed as of that date (subject to
rcccFnmerHi;''iurL, (d a judicial compensation commission in that province thf.lt we understand
hdvc yc:i bt at $252,274.
\/1/c! havt.' vc:r\
effeCT IV•
S2r.1/550 Price Indo
rnechanisrn used in Chn;1r
been informed by the parties that judge!>' salaries in Ontario increased
1, 2011 to $262,113. Our recommendations do not contemplate Alberta
to match this Ontario pay level in 2011; instead they would only increase to
beGJuse of our recommendation to utilize changes in the Alberta Consumer
tngger salary adjustments in 2011 and 2012, as opposed to adopting the
increases in the Industrial Aggregate Income Index for Canada, which is
89. Those spec 1c comments of the 2009 Commission are very significant. Despite the
acknowledgcmc:.nt the 2009 Commission that it was a reasonable objective to attempt to
n1aintain ";:.:~ppnJx.m~::ltc parity" in compensation between Alberta and Ontario provincial judges}
the 2009 Cornrnts',i(Jn ::)pecifically emphasized that it was not prepared to, in striving for such
objective, follow Ontario practice of'··-- adopting the mechanism (for annual judicial salary
adjustments) of tracking mcreases in the Industrial Aggregate Income Index for Canada" ("the
Ontario Mechanisrr~ fen Annual Judicial Salary Adjustments"). Instead, as also noted above, the
2009 Commission rn the contrary recommendation " ... to utilize changes in the Alberta
Consumer Price• lndt';>( to trigger {annual judicial) salary adjustments." It is evident that this
determination W(J' 1 t11e 2009 Commission a key part of reaching a distinctive "made in
Alberta'~ dccisicnt 1n rt?gard to determining the most appropriate mechanism for annual judicial
salary adjustment
90. In th1s regar , sorne background information as to the specifics of the components of
the Ontario Mech(Hlhrn For Annual Judicial Salary Adjustments is important. It is firstly
important to note thdt the Ontario Mechanism For Annual Judicial Salary Adjustments is
specifically set c1ui Hl ;J :1995 Framework Agreement ((Jthe Ontario Framework Agreement")
which had evolved out of the recommendations of the 1994 Ontario Provincial Judges
Remuneration Ccwnrnis:,ion. The Ontario Framework Agreement was specifically incorporated,
as an Appendtx, into the Ontario Courts of Justice Act and so is of statutory effect.
39
9L The spPcihc~, of the Ontario Mechanism For Annual Judicial Salary Adjustments are set
out in section <l 1:1 of the Ontario Framework Agreement. In simple terms, the Ontario
Mechanisrn For /\nnu<d Judicial Salary Adjustments consists of the implementation of annual
mandatory statuton!v prescribed salary adjustments for Ontario provincial judges in lock step
with changes crvc·r d specific year of the average weekly wages and salaries as reported in the
Industria! Aggregate Index for Canada {IAI Canada) published by Statistics Canada: The Ontario
Framework Agreenv:'nt, section 45 [JBA #26].
92. The reo?ntlv 1ssued Report of the Eighth Ontario Provincial Judges Remuneration
Commiss1on {"the K Comn1ission Reporf') provides <:1 good illustration of how the Ontario
Mechan1srn For l\!l''iLJ Judicial Salary Adjustments works in actual practice: The Kaplan
Cornrnission f\eport UBA #27].
93. The Kaplan ( nrrHnission Report contains recommendations for the compensation of
Ontario judges for the period of April 1, 2010 to March 31., 2014. In addressing the specific issue
of judicial salaries. the Kaplan Commission Report referred to certain specific salaries for each
of the four yedrs in the above noted period and then stated the following: The Kaplan
Commission Report Par.J. 1 [JBA #27].
IJ!S:_~;,~:.srs'.Jt~ t: > .Ji,J'-'~'? .. ;l_U~'-~.r~ a sed a !JlQD.Jat i ca lly J:~Y .. t~J~JP.J..~;,~1.p .. ~ d a i!,~ .. Pf.9..Yi d eci Q.y the Courts of \\:' .. i,inderst<:lnd that these salaries have already been implernented. (Emphasis
94. At AFT rtS i:, fdble entitled The Puisne Judges Salaries Across Canada C'The Puisne
Judges Comparative Salaries Table"). This Table contains comparative judicial salary data, in so
far as it is presen tlv available for Canadian Judges in the period from 2003/04 to 2016/17 ("The
Puisne Judges Compa rat 1ve Salaries Table" at AFE #5),
95. Attached
Provincia! Terr
at Tab #3 is a document containing a series of 10 Tables ranking Judicial
Salaries for each year from 2003/04 to 2012/13 r'The Comparative
40
Provinci;:d Judici<.d
Salary Rankings
Hankings Tables"). Each Table in The Cornparative Provincial Judicial
compares the salaries for judges in each jurisdiction for a specific year
and also "ranks' Cdch of the provinces in comparison to all of the others for that year ("The
Comparative Provinu;::d Judicial Salary Ran kings Tables" at TAB #3).
96. /\ review
that Hlt::' sali1ry
Comparative Provincial Judicial Salary Rankings Tables demonstrates
Alberta Provincial Court Judges has, in the above-noted 10 year time
period, usually bcc'rt ':)t'cond (in five of the years) in the overall rankings. In 2008/09, Alberta
judicial salaries ran in a tie for fourth but since the salary increases implemented by the
GOA on the recomrnenddtion of the 2009 Commission took effect the Alberttl judicial salaries
have ran ked eithc·r or second amongst the Canadian provincial judges.
97. Tab #4 is ,J oocurnent consisting of a series of 12 Tables, each comparing the salaries of
Alberta Provincid! (J<!Ii Judges for each year from 2003/04 to 2012/13 to the salaries of other
judges in each tF·r jUrisdiction in Canada, including federally appointed judges (11The
Comparative AlberL1 :md Other Jurisdictions Judicial Salaries Tables at TAB #4).
98. Included in information contained in The Comparative Alberta to Other Jurisdictions
Judicial Salaries Tables !S a percentage comparison in each Table between the Alberta Judicial
Salary, at a given nne. and that of the specific comparative jurisdiction. For instance, the
following percentage cornparative information is therein set out for the timeframe of 2012/13:
Table Two
Average Comparative Judicial Salary Percentage Ratios {2012/13)
T. ·lble J ... ,.
/\lberta/B.C. 114%
1ble 2 Albert aIM ani to b a 1.18%
Jblc Alberta/New Brunswick 126%
Jble ~.1 T<: Alberta/Newfoundland & Labrador 122%
Ta ble ::) Alberta/Northwest Territories 106%
1ble 6 Alberta/Nova Scotia 122%
41
99.
Table 7
Average Comparative Judicial Salary Percentage Ratios (2012/13}
Alberta/Ontario
Alberta/Prince Edward Island
/':l.lberta/Quebec
Alberta/Saskatchewan
Alberta/Yukon
Alberta/Federal Judges
99%
114% ... ······--······-···-·········i·····································--······································· ...... j
106%
105%
92%
.[y1ain1.airLJ=ii~~I..9X1CC!I Compensation Comparison with Ontario ("Approximate Parity}/)
.?:JQli:ctj_g_~Jf}t_q_~L~L.:'Made in Alberta'' Factors
f.\s is noted there has been specific comment by previous Alberta Commissions to
the effect that Ont:-nio is the most relevant comparator province: 2000 Report p. 14 (JBA #21];
2003 Report p. 43 IJBA #22).
100. As 1::; <1lso liCU<l above (see paragraphs 84- 85L the 2009 Commission notably described
the historic:,! lin bc·tween the respective salanes for Alberta and Ontario provincial judges
as one "approx~ri:Hc· parity''. This was after the 2009 Commission had expressly noted that
since 1998 the ·' .. p;:n; Ontario and Alberta Provincial Court judges has historically been
aligned . , closely l differences ... averaging 5% (with Ontario salaries exceeding Alberta
salaries)"' and further that 11 ... the trend has been to more closely match pay between these
jurisdictions over decade''.
AQY_Argu_!:fL~~.~.:~t ... L<:? . .r. Compensation Parity with Federally Appointed Judges Should be
Rei e cJ.Q.Q.
101. In prc~viou:;, C.nrr:rnissions, the Association has argued that the compensation of Alberta
Provincial Court cJ1ould be 11 broadly equivalent" to that of federally appointed judges,
and in particul;:u, cderally appointed judges who were Alberta lawyers and fill Alberta
positions
42
102, To date n Pdbcrta Commission has accepted this argument. It was thoroughly
canvassed and by the 2003 Commission, which agreed with the Governmenfs
subrnission th;:11 recon1111ending a salary already set by a federal Commission ((would be
tantamount to ~;;urrcndcring jurisdiction to a body responsible to Parliament and abdicating
responstbility to a decision faithful to local conditions": 2003 Report po 41 [JBA #22]. The
2003 Commission aho agreed with the Minister's submission that the court system in Canada is
hierarchical in structlHc, and endorsed the conclusion of the 1998 Commission that the
historical hierarchy should continue to be observed: 2003 Report p. 42 [JBA #22].
103. Based on ~:.pc•cific reasoning as noted above (paragraph 83), the 2009 Commission
specificallv recogn validity of maintaining the traditional "'gap" between the respective
salaries of tedcrai >Jnd provincial judges. As also noted above (paragraph 82), the 2009
Commission had SO\'Cific.dlly commented that ", .. since 1998, up to April, 2009, the gap has
ranged between/?< and 19%, averaging 13% .. ,".
104. Other provmcial compensation commissions have also rejected the parity argument.
For exarr-iple} in report the 2005 Saskatchewan Provincial Court Commission stated as follows
at p. 13:
!'his (~()rnrnl\\i not find the argument to compare with the Court of Queen's Bench to be
courts 0re separately recognized in Canada's Constitution and the
uf vastly different. While the parity argument, or movement towards parity
argulrlerlt, fu'- :• hallmark of the submissions on behalf of the Provincial Judges before
every conmn~,s' ,,\_ uur salary recornmendation,,proposes a principled and rational basis to
determine the ;Jppropriate salary for Provincial Court Judges. The salary of .Judges of the Court of
Queen's Bench very little to our principled approach.
Saskatchew<m Provincial Court Commission Report December 31, 2005 [Extract at TAB #5].
105. The rnajoritv elf the· Ontario 2001 Commission, which stated the following in response to
the paritv argument Fifth Triennial Report of the Provincial Judges Remuneration Commission
(Ontario): pg. 271Extract at TAB #6]:
43
'vVe do not rcconmwnd parity and neither do we recommend any forrnulaic linkage to the
salaries o1 the L·dt>rally appointed judiciary. We agree that each level of judicial remuneration
~>htJulcl be delf·rrrnned on its own merits, having regard to the criteria pursuant to which an
I rj(jependent i}fnrnission makes its recommendations. One can't ignore that the two groups of
judf;,cs an· different levels of government whose fiscal abilities and priorities are
cifft:·r ent. ,me :m~ accountable in different manners to the taxpayers frorn whom the
;He received ...
106. The argurnc:·rH that provincial court judges should be paid at par with federally
appointed judges vvJs ;udicially considered by the New Brunswick Court of Appeal: Provincial
Court Judge</ Assn. iNevv Brunswick) v. New Brunswick (Minister of Justicel~l [JBA #7].
107. The dccisWI i followed the report of the 2001 New Brunswick Judicial Remuneration
Commission, which rejPcted the provincial judges/ argument for full salary parity with federally
appointed Puisne but recommended a salary increase which would have paid them
approximately of the salary of federally appointed Puisne judges. The New Brunswick
government rejectc·d Commission's recommendations for a number of reasons, following
which the judges judicial review. The Court of Queen's Bench dismissed the application
on the grounds th:Jt :he, government's reasons for refusing to implement the recommendations
met the review of simple rationality. The Court of Appeal dismissed the judges'
subsequent appeal. stating the following at para. 9:
.. ·:he ()ovcrnnH:nl contention that the salary of federally appointed puisne judge'> is based on
(Cnsiclcr<~tior-.' t 1ut lrr> irrelevant in the provincial context is sound, both in fact and logic In
short, the i\~,' ('' :dLun's parity argument is fundamentally flawed and, therefore, It is simply
unnecrh;:)arv 1:;· ourt to be drawn into the equality debate as framed by the parties. I
hi.J~,ter, tu tt ruthing t.urns on the distinction between a salary recommendation that
crnbr act:s O<Jr opposed to full parity. The fact remains that the Commission effectively
lirc1itec: the ll!H1i·t·l ol tornparator groups to one; judges of the Court of Queen's Bench ...
108. There are ;:; ntln1hc•r of more recent Commission rejections of the parity argument. The
general consensus i<; thdt the gap should be maintained for the traditionally accepted reasons
but it should not be ctllowed to become too wide.
2003 Carsv.·ei!f\JB . )iiCn NBCA 54. Note that this case was appealed to the SCC where it was dismissed. See
the• SCC Bodne~r deci'>ion ; 2 SCH 286, 200::, SCC 44 at paras. 56-69 and 65-85.
44
109. For instarKc, he 2013 British Columbia Commission noted the following: [British
Columbia Provincial Commission Report; September 25, 2013, at page 38 [Extract at TAB
#7].
curnpensatlon between justices of the BC Supreme Court and judges of the BC
:m important factor in determining reasonable compensation for Provincial
Court hiY it l'· not an overriding one. For reasons discussed further below, the gulf should
not bi'CorrH .,vine that it rnakes the compensation of the Provincial Court judges unreasonable
in the· eye·:, of: who might seek to undertake the office. Yet, the compensation for Provincial
Cuurl :.huu!d not be rigidly held at a specific target in relation to federally appointed
pCiS!tions are different.
Both 1J·H' Prcl\in· itJ 1 ;md Suprerne Courts require excellent candidates and they compete for the
However
of the criminal defence bClr, the best from the Crown counsel ranks, and
civil litigators in family law, personal injury, ~md insurance defence.
is significant overlap in the needs of two courts, the needs are not
Court has broader jurisdiction in civil matters, and a greater need of
cilndidatc~; v.;i;; r·xpu ience in complex corporate cornrnerci0l matters. Also, federal court judges
arc cornpt/fl a different government which faces varied fmancial and other
consider;H!cln.
110. The hllini:.tc·t not suggest in any way that there is a difference in the importance or
value of the work done' by the two levels of Court. The point to be made is that as one of the
criteria to be cor;sn:lr•rf'd by this Comn1ission, "the unique nature of the judge's role" is not
meant to invite ccnnparisons. Rather, it is meant to ensure that through recommendation
of an ,Jppropriah cr>rnpensation package which ensures judicial independence, proper
recognition 1s tr) the singular nature of the responsibility and authority of the judicial
position. it is that The Minister's Compensation Increase Proposal achieves that
purpose.
MaiQ.tal!JJ:tt:':U:~_Us~QJ"Percentage Gap" with Federaii":L Appointed Judges
111. !v; ind previous Alberta Commissions have rejected arguments that the
salaries of Alberta uvmcial Court Judges should be "broadly equivalent" to that of Federally
Appointed Judge~'- However} previous Alberta Commissions have referred to the salaries of
Federally Appointed !ucJges for "comparative purposes". Although the previous Commissions
have recognized that the courts are {/hierarchical" they have also accepted the premise that the
gap between the of Superior Court and Provincial Court Judges should not be too wide.
45
112. For mstancr;·. 2000 Commission anticipated that a specifically proposed salary would
bring the Albcrt.:1 F'rov1ncial Court Judges to a salary level equivalent to 86% of that of Federally
Appointed JudgflS 2000 Commission accepted that percentage as representing a
reasonable ''salary . .2000 Report p. 14 [JBA #21].
113. The 2003 Cornrnission basically agreed with the submissions of both the Association and
the Minister that the comparative 11Salary gap" between Alberta Provincial Court Judges and
Federally Appointed Judges should not be "too wide": 2003 Report pp. 37, 43 and 52 [JBA #22].
114. The 2006 Ccm~rnission noted that the 11 • •• salary gap between federally-appointed
judges and provinci:d court judges in Alberta has now been significantly narrowed": 2006
Report p. 12 [JBA #23!.
11S. As noted
federally-appointed
the gap averaging
Provincial Court
Judges.
116. In contr;lst
, the 2009 Commission noted that from 1998 to 2009 the salaries of
typically exceeded salaries of Alberta Provincial Court judges with
Or stated conversely, from 1998 until 2009, the salaries for Alberta
averaged approximately 87% of the salaries of fe9erally-appointed
that percentage gap, since April 2009 the sCllaries for Alberta Provincial
Court Judges have, ;n./t'rdged approximately 93% of the salaries of federally-appointed Judges.
[See Table 12 of The c:omparative Alberta to Other Jurisdictions Judicial Salaries Tables at TAB
#4.]
117. It should abc1 bv noted in making any comparison in any specific time frame between
the salanes of appointed judges and the salaries of Alberta Provinc:i<ll Court judges
that the sarne complicating factor exists in doing so as exists in comparing the salaries of
Ontario Provincial Court Judges and the salaries of Alberta Provincial Court judges. Federally
appointed judges, like the Ontario Provincial Court judges, are entitled to statutorily prescribed
46
annual salary In the case of the federally-;:~ppointed judges, those prescribed
increases are corrHJtJted in accordance with the Industrial Aggregate Index for Canada {IAI
Canada) to a rnaxirnurn cyf 7%.
CONSIDERATION Of THE ECONOMIC AND FISCAL CRITERIA (CRITERIA F, G, H, AND J)
118. Criteria F, (_; H,. imd J are hereinafter collectively referred to as the Economic and Fiscal
Criteria.
119. ln respect t consideration ot the Economic and Fiscal Criteria, the Minister has
obtained two expcn rcptJrts co·-authored by Katherine White (Former Chief Economist, Alberta
Finance) and Mark dr•,ons (Acting Chief Economist, Alberta Finance)10
and each dated August
S, 2014_ One ot Finance reports is entitled "Economic Outlook" C'The Finance Economic
Outlook Report"). /\ C(>py of the Finance Economic Outlook Report is included at TAB #8. The
othr:r Finance report i'-:, entitled "Comparison of Various Indicators Used to Measure Wage and
Earnings Growtfr'j (
The Finance Mc<J:,Uf
Finance Measures of Wage and Earnings Growth Report"). A copy of
\tV age and Earnings Growth Report is included at TAB #9. Copies of the
respective Curriculu:n \/itae of Katherine White and Mark Parsons are included at TAB #10.
120. The Finance· L,::onomic Outlook Heport includes a Table entitled "Key Alberta Economic
Indicator::/' ('The Fln,mcc Economic Indicators Table"), which, as the name suggests, sets out
data respectmg a vanc1v of certain specific Economic Indicators for Alberta. The data included
is for the years 2001 to 2013 (actual) and 2014 to 2019 (projected). [The Finance
Economic Indicator':; at p. 3 of The Finance Economic Outlook Report, TAB #8.]
These f inaner~' RC'!!()ft together repre5ent the latest and expanded version of an initial Report dated
March 18, 2011 wtliC;, I tJ(~cn originally prepared by Mary MacGregor, then the Executive Director and Chief
Fconomi:;t of AILH.':rtd f . fer purposes of the 2009 JCC
47
Specific Consideration of Criterion F - The Growth and Decline, or both, in Real Per Capita
Income in Alberta
:121. Criterion F 1:: .• Growth and Decline, or both} in Real Per Capita Income in Alberta".
122 The Finance'· f: uJnorr1ic Outlook Report contains several references to the actual or, in
some cases to the dnUcipated, growth in personal income per capita at various points in time in
listing of the Key Alberta Economic Indicators set out in The Finance
Economic Indicator'; ·r;lble is reference to specific data measuring changes in the personal
income per capita. I rhc Finance Economic Indicators Table, at p. 3 of The Finance Economic
Outlook Report TAB #8]
123. rhe specdtc .vording of Criterion F is significant it that it refers to changes in the Real Per
Capita Income in t~l!:~.~~JJsL As is evident from a review of the Finance Economic Indicators Table,
there is a key distinc uc.m between the data measuring changes in the Per Capita Income and the
data measuring
includes adjustment
124. Comp!ica
in the Real Per Capita Income. That distinction is that the latter data
the effects of measured inflation.
matters somewhat but with the goal of understanding the relevant
reported data~ it !'~ ;!iso 1n1portant to note the following recent changes in the specific income
statistics that arc br,mg collected. The Finance Measures of Wage and Earnings Growth Report
notes that in 2012 Stdtist:ics Canada switched to utilizing a new measure of income called
Primary Household inccnnc. In this regard, the Finance Measures of Wage and Earnings Growth
Report note~.: [The Finance Measures of Wage and Earnings Growth Report, at pg. 2, TAB #9].
In the fi1il . the systerYI of National Accounts and Provincial Economic r'\ccounts
underwent revision. The concept of personal incorne was replaced with Primary
Hou~>chold lrH \n:c .m attempt to more fully cc1pture the incomes of households in Canada and
to be more wtth international standards. Although not directly comparable the two
concepts ;m~ Jligned in terrns of growth rates. For consistency and ease of understanding.
Prirn;uy hou',ehold income growth calculations are used from 2008 onwards, while personal
inconH' dr e used for 2007 and before.
48
125. In keeping w1th the foregoing, the notes included with The Finance Economic Indicators
Table confirm th.::Jt t following specific data relating to the changes in Personal Income Per
Capita is therein 1 cportt•d: [The Finance Economic Indicators Table at p. 3 of The Finance
Economic Outlook 1\c·port, TAB #8]
Personal lnc•inii' h reported in the years 2001 to 200'7, while pmnary Household Income is
reported tor thv vc,;g·,_~. 2008 to 2019.
126. The Fincmcc:· l conomic Indicators Table includes the following specific data for the years
tram 2013 to 201() in rc•gard to the percentage growth in both the Alberta Primary Household
Income Per CaprL1 (f\PH!PC) and the Alberta Real Primary Household Income Per Capita
(ARPHIPC) [The F inarH c· Economic Indicators Table at p. 3 of The Finance Economic Outlook
Report, TAB #8]
• the· ('>ported or projected growth in APHIPC (not adjusted for inflation} for 2013
is 4 1 for 2014 is 4.0%, for 2015 is 3.5%, for 2016 is 3.4% and for 2017 is 3.1%.
• U'purted or projected growth in ARPHIPC (which adjusts for inflation) for
20 J:i for 2014 is 1.4%, for 2015 is 1.0%, for 2016 is 1.3% and for 2017 is
1 J
127. Although it i\ noJ specifically set out in either The Finance Economic Outlook Report or
in The Finance f\i1easun:~s of Wage and Earnings Growth Report, the said authors of those
Reports have t.nther that above noted specific data for the anticipated growth in
APHIPC and ARPHlPC dS contained in The Finance Economic Indicators Table represents
specifically expected growth in per capita primary household income. There is somewhat
sirnilar data reportc•cJ tn the 2014 GOA Budget (released in February, 2014) but there are some
important distinctiorts. between the two sets of data as is explained below.
49
128. That similar data" is as follows. The 2014 Budget Documents included a
Fiscal Plan for 201d to 201741
({(The 2014 Fiscal Plan") [copies of various different sections of
the Fisccll Plan dt AFE #14-19 and 22]. The 2014 Fiscal Plan set out the following data.
•
•
!n tfw Economic Assumptions Table, the reported or projected percentage
h Hl Primary Household Income (not adjusted for inflation) for Fiscal 2012
it. l. Fiscal 2013 1s 6. 7%, for Fiscal 2014 is 6.2%, for Fiscal 2015 is 5.8%, and
for l 2016 is 5.5%. [The 2014 Economic Outlook, p. 101, at AFE #22]
In t Pnrnary Household lncorne Benchmark Table, the same reported or
growth is recorded, but on an annual yearly basis, as follows- for 2013
2014 is 6. 7%, for 2015 is 6.2%, for 2016 is 5.8% and for 2017 is 5.5%.
li Economic Outlook, p. 109, at AFE #22]
129. fv1r. Parsonr, (JClviscd as follows respecting comparison of the above noted specific data
relating to the anticipated growth in Personal Income Per Capita as reported in The Finance
Economic Indicator·~; Table (of The Finance Economic Outlook Report) with the above noted
specific data relating to the anticipated growth in Prirnary Household Income, as reported in
The 2014 Fiscal Plan
Primary hou:<l·•·1n !:JU)me growth in the Budget represents growth in total primary household
inconlt'' n'i /\/!>>' 'o 1ncludinq the effects of growth in hourly wages, non-labour income,
employment uno population. The number reported in the (Finance Economic Indicators) Table is
qrovvt/1 in per top:to primary household income. So, os long as the populotion is growing (which
1t is u lot Ui:":{ ::IJ•/:.)i this qrowth rote will be lower than that of tcJtal primary household
tn.tome.
130. As noted aLhNe. the specific wording of Criterion F refers to changes in the Real Per
Capita lncorr1e_in Criterion F does not refer to comparing levels of Real Per Capita
Income in Albert:J vvith those in other provinces. Counsel for APJA provided counsel for the
Minister with a copy crf ::::n August 2014 report authored by Dr. McMillan and indicated that the
50
APJA intended to upon such report (Dr. McMillan's Report). 42 There is reference in Dr.
McMillan's Report tc; 'primary household income ... rneasured ... in per capita terms" in Alberta
but the refcrc:rlCC' only in comparison to such incorne in other provinces. There is no specific
reference in Dr. Mcf'v1illan's Report to the data relating to what Criterion F specifically refers to,
Le., change:. in ttH:) .l}_Qi!LPer Capita Income within Alberta. [Dr. McMillan's Report, pgs. 15-16]
13L Having to the foregoing discussion, it is evident that the most appropriate
rneasurc to constdcr \Nnh respect to Criterion F is that of growth in Real (i.e., inflation adjusted)
Personal I Prirnary Household Income Per Capita in Alberta. The specific data for that measure
is, as noted above as reported in The Finance Economic Indicators Table (of The Finance
Economic Outlook Report) as ARPHIPC.
Specific Consideration Of Criterion G - The Need to Provide Fair and Reasonable
Compensation in light of the Prevailing Economic Conditions in Alberta and the Overall State
of the Economy, Including the Financial Position of the Government
132, Criterion (, 1 ''the need to provide fair and reasonable compensation in light of the
prevailing econon1H conditions in Alberta and the overall state of the economy, including the
financial position of government."
An Overvtev',:~gJ_ the Current and Anticipated Financial Position of the Government of
Al.2fl1.5Lt0.Q:~~J _
133. Key infornl;J1Yin relating to the GOA's financial position, currently and for the next
several year~,, as sc·l <Yut ll! the relevant GOA Budget Documents includes the following:
• Thf' r 2013 Budget had for the year ending March 31, 2014 projected
revenue of $38.7 billion and had anticipated an overall deficit of almost $2 billion
(i.e n~, estimate of the Change in Net Assets (Total Revenue less Total
The actual figures as confirmed in the GOA's Annual Report for
<;A copy of Dr. McMi!iar-, H•:'ourt is included as an attachment to the AP JA Written Submission.
51
1 ("The Fiscal 2013 Annual Report") were considerably different,
because of' higher than anticipated energy resource revenues. The
Fbc:::1! Annual Report reported revenue of $45.3 billion resulting in an
over,d! s.urplus of $755 million (Change in Net Assets). [See the Fiscal Summary
on r1g 4 of the Executive Summary of The Fiscal 2013 Annual Report; at AFE #21]
• l' 2014 Budget (released in February, 2014) for the fiscal year ending March
.31. /OJ. projected revenue of $44.3 billion. In its estimate of the Change in Net
AssTt ,, Pot: a I Revenue less Total Expense) it predicted an overall surplus of
1. J billion. The 2014 Budget Documents included The 2014 Fiscal Plan.
The· fJrojc:·ctions related to the projected revenue are summarized on page 16 of'
The :'01/l Fiscal Plan and detailed on page 133 in the Fiscal Plan Tables section of
The .'1 Fiscal Plan. The projections related to the predicted surplus are
surnrnanzcd on page 4 of the Fiscal Plan Overview section of The 2014 Fiscal Plan
and detailed on page 143 in the Fiscal Plan Tables section of The 2014 Fiscal Plan.
fTh ) C1 J /l Fiscal Plan, at AFE #14 and #19]
• H1c\ f i 2014 Budget estimates were last updated on August 27, 2014, in the
GOA';, F!r<,t Quarter Fiscal Update and Economic Statement (2014 -- 2015), ("The
2014 First Quarter Fiscal Update"), at AFE #20. The 2014 First Quarter Fiscal
Update projected a revenue increase to $45.3 billion primarily because of higher
than anticipated energy resource revenues and in its estimate of the Change in
Net l\sscts (Total Revenue less Total Expense) it predicted an overall surplus of
~\ 1.4 billion. These updated projections are summarized in the Fiscal Plan
Surnrrrlrv' on page 5 of The 2014 First Quarter Fiscal Update. [The 2014 First
Ouarlc'~ F1scal Update at AFE #20]
• In rcg<Jrd () Fiscal 2015 (ending March 31, 2016), The 2014 Fiscal Plan projected
revenue of $45.8 billion. In its estimate of the Change in Net Assets (Total
Hevenuc less Total Expense) it predicted an overall surplus of $940 million. The
prop:'f:i 1ons related to the projected revenue are summarized on page 16 of The
52
•
J i.l H<,cdl Plan and detailed on page 1.33 in the Fiscal Plan Tables section of The
Plan. The projections related to the predicted surplus are
:~;urnnldrizcd on page 4 of the Fiscal Plan Overview section of The 2014 Fiscal Plan
and dculiled on page 143 in the Fiscal Plan Tables section of The 2014 Fiscal Plan.
2014 Fiscal Plan, at AFE #14 and #19]
In to Fiscal 2016 (ending March 31, 2017), The 2014 Fiscal Plan projected
revenue of $48.6 billion. In its estimate of the Change in Net Assets (Total
Revenue, less lotal Expense) it predicted an overall surplus of $2.6 billion. The
pro;cct ions related to the projected revenue are summarized on page 16 of The
14 Plan and detailed on page 133 in the Fiscal Plan Tables section of The
2CH4 Fi:,cal Plan. The projections related to the predicted surplus are
su on page 4 of the Fiscal Plan Overview section of The 2014 Fiscal Plan
and dc·tililcd on page 143 in the Fiscal Plan Tables section of The 2014 Fiscal Plan.
/'014 Fiscal Plan, at AFE #14 and #19)
134. Then: is that the GOA has, overall, taken responsible and prudent steps in
dealing with its fm;:mcial challenges since the recession of 2008·-09. As an illustration of this,
there arc some HH'nt analytic comments set out in Dr. McMillan's Report. These relate to
Alberta's recent and current fiscal situation and the past and present approach of the GOA
since the recession o: 2008-09. Those comments include the following:
• The Ct)llapse of energy prices and the 2008~09 recession resulted in a drop of
revenues and the re-er:nergence of deficits as of 2008--09. The lengthy period of
surpluses enabled Alberta to pay off its provincial debt. Hence, d,ebt servicing
cost~ t'ffrxtively disappeared about 2004 and with it any significant difference
program and total expenses. In addition, the province accumulated
!a t:LJlances, almost $11 billion at its peak, in its then Sustainability Fund. [Dr.
Mc:Mill;:-,n's f~eport; pg. 24]
53
For five years from 2008-09 to 2012-13 the province ran a series of deficits.
almost exhausting its Sustainability Fund, the province managed to realize
<1 stJrplus in 2013-14 and expects to maintain a surplus position over the
next years. fOr. McMillan's Report; pg. 25]
Hh:: \tv'dXing and waning of natural resource revenues appears to impact quickly
the' province's "bottom line". [Dr. McMillan's Report; pg. 26]
• c~ the recent fiscal difficulties, the province continued to invest in capital
assc·t ", Examination of the data suggests that the policy to maintain capital
mvc~:.trncnt during the recession was effective counter-cyclical fiscal policy and
did rnuch to maintain cmployrnent and economic activity especially durir1g the
worst the downturn [Dr. McMillan's Report; pg. 26]
• 2~13, the province has relied significantly upon borrowing to finance
•
l expenditures. As a result, accumulated debt is increasing quite rapidly ...
The L'XP<Hlded borrowing has allowed the province to maintain expenditures for
infrastructure without further tightening program spending or raising
ta><Ps I Dr_ McMillan's Report; pg. 26]
Thi l ;·ftect of the recent fiscal management strategy is that the province's net
a:;.~.ct·.· 1nc·t financial and capital assets combined) declined modestly after 2007-
08 but nnw, since 2013-14, are on an upward trend. [Dr. McMillan's Report; pg.
The HBC Economics March commentary on the Alberta budget well illustrates
opHlHJns. It notes that the budget presented a fairly upbeat picture of the
prov1ncc>':) fiscal situation in contrast to the morose tone of the previous years'
''· The growing economy and favourable oil price movements resulted in
54
:>t re-venue growth. That, plus spending restraint (operating expenditure
by less than the population growth rate ... ) led to surpluses .... [Dr.
l\!1cl\1dl::ln"s Report; pg. 28]
135. From those cornrnent:s it is clear that the GOA faced some large fiscal challenges in
recent ye;.1r( .. For Jn';tance, it was noted that the GOA almost exhausted its Sustainability Fund
during the r) yc;:ns starting in 2008. Since then, the GOA has prudently striven to adopt
restraint in its overd!l spending while still investing in capital projects to keep the economy
rolling. The econorr\V' now appear to be on an uptrend but Dr. McMillan reminds us of the
volatility of the (](1/\' revenue sources, i.e., the "waxing and waning of natural resource
Ib.s.1lncert:~i.!JI~Y.~.Qf the Assurnptions behind the Current Growth Projections for the
Alberta Eco~J~2IIl¥
136. The Z01.4 Budget Documents referred to a number of key assumptions upon which the
various prognostiUltKm(, were made. These included economic assumptions about the world
economy and the· rcspr'ctive economies of the United States, Canada and Alberta. The revenue
assumptions wprc, LH predicated on projected energy prices, tax revenue, and investment
income. [The 2014 f Plan Overview, AFE #14, pp. 4-6].
1.37. The specific ''conomic forecast set out in the 2014 Budget Documents " ... is based on a
steady acceleratior; l!l global growth, supporting oil prices near their current levels". The 2014
Budget Document:; H1clude the following specific statement which generally summarizes the
volatilitv that an inherent difficulty faced by the GOA in respect of its fiscal forecasts:
fThe 2014 Fiscal Pl;n1 Overview, at AFE #14, p. 5]
/\lberta ;Hld revenue forecasts are significantly affected by an array of unpredictable
an(i urtstabie 1iiCCH ,, such as global and US economic growth, energy prices and exchange rates,
flniHJc•al rn::Hkct ccH:ditions1 and Alberta population and employment growth.
55
138. Included in t Operational Plan section of the 2014 Fiscal Plan ('1The 2014 Fiscal Plan
Operational Plan'') : <~ somewhat detailed discussion of the various economic risks and
uncertainties thC> (;(}!\ f.Jces in respect to predicting its revenue. Some pertinent comments
contained therein arc ;Js follows: [The 2014 Fiscal Plan Operational Plan~ AFE #15, pp. 28-31].
!\lbertd relics on revenue sources that can be volatile and unpredictable, including non··
renewable rcsuu1 <T~>. corporate income tax and investrnent income. Since 2000·01, these
revenue suu~>..<':, h;we accounted for anywhere between 38% and 55% ot total reverwe. In 2013··
14 they are fort'CJ<t to amount to 40% of total revenue, and in 2014-15, 39Sl,{),
l!'"tb rt'Vf'ntli' !:nkc~j to factors such as energy prices, equity markets and exchange rates, which
~.He t.-:npn.:'ciic 1 ddt~. : ;ln fluctuate rapidly, and are outside Alberta's mfluence. An additional
variable h,v t:t ~_.crw the differential between oil prices for Alberta energy products, and North
/\ :nc rican anc f:>rices. Any and all of these factors can vary significantly from assumptions
useo to P' '-'P•l;, · budget forecasts, causing deviations from budgeted revenue. for example,
revenu1' 1n 1·1 i:. 8.7% higher than forecast, with resource revenue $1.4 billion, or 19%
th;H; hr in Budget 2013, and investment income $950 rnillion, or 44\!-~ higher.
nf uncertainty exposes the Alberta government in a unique position relative
rr' other gnvf·;
139. As 1t~> narnc~ suggest, the Economic Outlook section of The 2014 Fiscal Plan ("The
2014 Fiscal Plan [conornic Outlook'') attempted to predict Alberta's economic situation in the
years to cornc, which prediction was based on certain (/Key Assumptions". It concluded with a
section surnmarizmg (;Risks to the Economic Outlookn. Some pertinent comments contained
therein arc as follovvs: fThe 2014 Fiscal Plan Economic Outlook, AFE #22, at p. 100.]
Withu-.n <'lcic!iri ::1;1 r.;keaway capacity, Alberta oil producer~; will continue to f<1ce large and
volatile nric.e ui'·
tP;.Iberta corbunkr pnccs and wages have been contained by weak global inflation and by rising
migration intn t..!bf·rta. If global inflation picks up or migration slows more than expE•cted, cost
and pnce pres·:,uh."· in i\lberta may return.
The recent cli'prc c 1:1tion of the Canadian dollar highlights the unpredictability ot exchange rates
rdbe(d) InteL'':/ rJte~, (could cause) the Canadian dollar to appreci<:1te and {hurt) export
n e c1rH:rginu ·<unurnies remain vulnerable to financial market shocks ... (and a) further
sluvvchwn ;r, markets would weigh on commodity prices, hurting growth prospects in
AlberLL
There ;s up:,;c, t•J !.JS economic growth ... (could be) larger than-expected US growth,
56
Upside rbk~; c:<bt in the Eurozone and emerging markets ... (if) global growth ... accelerate(s)
. would put t·r>N;:rd pressure on commodity prices, and boost investment and employment in
A!bPrt;,_
140. ThP 2014 Fir'>t C)uarter Fiscal Update noted the following under the heading of External
Risks: (The 20.14 Fir:,i Ouarter Fisccll Update, pg. 12, at AFE #20]
Globz.d r.~cunun < ; unditions" are slowly improving, but with rnixed results. lhe US economy is
gaining mun·,c~Jrun, while Eurozone growth has stalled and China has entered a period of slower
grovvth. Giver< f\lb;}rt;l's high reliance on trade and comrnodtties, the outlook is subject to a
!lUITlbCt Of ri:,k ·.
• A lack of >f:<HI~ ptpeline capacity makes the price of oil produced in Alberta vulnerable to
tr ansporutun ;md refinery disruptions.
• F1narH:i<~! nkf't•. have seen strong returns in the past couple of years. A market correction
cuuld cr;:?, ric\vn commodity prices and hamper global growth. Escalating geopolitical
c·.;ents. tr·nsions in Ukraine or Iraq, could also dampen global economic growth and
incre<:hf" i :'L!'lCkil market volatility.
• 1\ pick tq:: ~n global inflationary pressures could lift consurner prices more than forecast,
vvhile 'Ni'<'k; r than expected migration could put upward pressure on labour costs.
• lhere ~::
n d!nta~·~ c
risk for Alberta's outlook if employment, business investment, ~md housing
rnornentum.
141 There is cllso reference in the Finance Economic Outlook Report to the various economic
risks and uncertiJmtic)s Alberta faces, as follows: [The Finance Economic Outlook Report, TAB
#8, at p. 3].
k~ a small oper; (•cunomy, Alberta remains exposed to global risks. World oil prices could fall as
a re:,ult of furtht'l ·/Jeakness in emerging markets or higher .. than .. expected increases in US oil
production i\ f Ji' I' 1 oil prices could slow oil and gas investment and job growth.
Without ;H)dt1 t<lkeawav capacity, Alberta oil producers will continue to tace large and
ni~.cuunt :,. A higher-than-expected reliance on rail will weigh on royalties, and
could '.)'he' :;.;,ctors that also rely on this rnode of transport On the upside, an
imrnediatf: alih:,ation of transportation bottlenecks would reduce uncertainty, raise Alberta oil
prices. and bon
142. Further to vJhat h noted above about the uncertainty in the GOA's revenue predictions~
a review of the C30/\ · 'iHistorical Fiscal Summary" illustrates the considerable variance in GOA
revenues in recent \il'dr For instance, the following revenue figures are therein noted: $35.01
billion in Fiscal year 2010; $39.5 billion in Fiscal 2011; $38.8 billion in Fiscal 2012 and $45.2
57
billion in Fiscal 201 !The Historical Fiscal Summary in the Executive Summary of The Fiscal
2013 Annual Report AfE #21, at pg. 22]
Specific Consideration of Criterion H - The Alberta Cost of Living Index and the Position of the
Judges Relative to its Increases or Decreases, or Both.
143. Criterion H ·'the Alberta cost of living index and the position of the judges relative to
its increases or or both".
144. The precise vvording of Criterion His significant in that it refers specifically to the judges'
position relative to changes in the Alberta Cost of Living Index. That in essence means that
judicial compensatton should be adjusted with reference to reported rates of inflation in
Alberta. Accordingly, in respect of choosing a formula for judicial salary adjustments throughout
the relevant tirnc
most specifk:allv
projected. 1-\S is
ultimate reliance should be placed on the econon1ic indicator which
on tracking the changes in Alberta's '~cost of living", either actual or
below, that indicator is the Alberta Consumer Price Index (Alberta CPI).
:££riety oJJE(9n~e and Wage Change Measurement Tools
145. ·rhe Fin;;mce fv1c·asures of Wage and Earnings Growth Report notes that: [The Finance
Measures of Wage nd Earnings Growth Report Report TAB #9, at p. 1]
There are a varic<v of wage and earnings growth measures available, each with their strengths
ar1d wcaknes:,<'''" \Nhile they tend to show similar patterns over the longer tern1, they can show
substantial in the short--term clue to differences in data sources, coverage and
underlving fonu:pts Below there is a comparative discussion of these various wage and
earnings nH'dSures followed by some conclusions as to the appropriate use of thE:'
indicdtO!'>.
But as is noted in The .liH4 fl'>cal Plan Overview !AFE ff14, page 5). $2.6 billion of this revenue is due to reporting
the entire amount of f.,,d•: r ;1 1 ;:1lsaster assistance anticipated for the 2013 Alberta floods in 2013--14.
58
146. The Findncc, fV'lc·asures of Wage and Earnings Growth Report indicates that 11Statistics
Canada wage and co::,t of living data comes from four main sources", each of which is then
identified and desc nbecL The Finance Measures of Wage and Earnings Growth Report then
goes on to descr1bc' the underlying concepts of each of these different types of data which
concepts it stat:f\s ''(nc also somewhat different". [The Finance Measures of Wage and Earnings
Growth Report,. TAB #9, at pgs. l-2]
.Ihe ____ AibQrJ~! {~P!J.?.~lmer Price Index (Alberta CPI) is Most Appropriate Salary Inflation
£rotec.ts?L
147 The mo~1l r•:<~rsonable and appropriate statistical measure to utilize to ensure that
Alberta judicial s.:JLH;e~. are not eroded by the effects of inflation is the Alberta Consumer Price
Index (Alberta CP!)
148. rhe Fmancc ~/leasures of Wage and Earnings Growth Report states the following in
describir1g CPI ;md
Finance Mf?d~;urcs of
it is commonly used as the measure for salary adjustments: [The
and Earnings Growth Report, TAB #9, at pgs. 2-3]
CPI c ,•'culated by surveying a fixed basket of consunH:r goods on a rnontttly basis by
province CPi rl', prices rise and indirectly as a result of wages; it rises as the cost of living
n~;es. CPI rcvl'>erl, which naturally lends itself to wage contracts, as disputes due to
revision'> do no:
.. :'v1illiV COI'It
Price 'ncie.::< ,.~
: lUt provide for cost of living adjustment~ use ·the growth in the Consumer
'i1t' benchmark indicator. The CPI basket of goods and services reflects the
f(li.JU', i:lnd S<~rvices at the national, provincial and in some cases the city level.
Wages that rise with the CPI ensure that purchasing power remains constant and are not
subject to the ci',i:url>ances caused by indexing to oth(~r earnings and wage measures. [Emphasis
!\ddedl
149. It is abo rc;-:dil\1 evident from a quick review of the reported data in The Finance
Measures of Wage ,1nd Earnings Growth Report that changes in CPI in a specific timeframe do
reflect the rdtc of infl<1tion in that tirnefrarne. For instance, it is noted therein that the Alberta
Consumer Price llvJc'>< (Alberta CPI) rose during the "Boom Years" from an average of about
3.3% over the 2001·2003 period to almost 4% in 2006 and almost 5% in 2007. By way of
contrast_. thr· d<:1t<:~ :,c':t out in The Finance Measures of Wage and Earnings Growth Report
59
indicates that in rc)cessionary period of 2009 the measured Alberta CPI sank to a negative
percentage before, again n1oderately in the years since then. [The Finance Measures of
Wage and Earnings (.inrwth Report, TAB #9, the Table at pg. 3]
150. It is especia!lv r1oteworthy that, as noted above, the 2009 Commission made the specific
recommend at ion
Consumer Price·
recom mendat:ion
[JBA #24J
ich was later accepted by the GoA) " ... to utilize changes in the Alberta
to trigger (annual judicial) salary adjustments.'; In making such
2009 Commission specifically noted the following: 2009 Report pgs. 35-36
\VdV to have salaries track changes in the cost of living is to tie future pay
h1· 1 ;)te of inflation of consun1er prices. This is why Wt'~ recommend using the
':; i!k ,:\lberta All-lterns Consumer Price Index as <J mechanism to establish future
salarv increa~;c fc,r JUdges and masters. This statistic truly rneasures the incremental cost of
living over tinH
."v,;e believe increase matching tht~ annual price index percentage increase will be
1.1ppropriatc tu (·rLure that judicial compensation keeps pace with relevant economic
circumstanc·cs
15L As is alsu r above, in making such recommendation the 2009 Commission had
.expressly declined t hJ!Iow the Ontario practice of " ... adopting the mechanism (for annual
judicial salary adp.Jst.rncnts) of tracking increases in the Industrial Aggregate Income Index for
Canada". The Cornmjssion also expressly noted that the tracking of changes in the
Industria! Aggregate Income Index of a specific jurisdiction is basically the equivalent of tracking
changes in the data for the Average Weekly Earnings (AWE) in that jurisdiction: 2009
Report p. 35 [JBA #24.].
:~.!rnnl~J2i.J2.£1.<J re the Past, Present and Anticipated Cost of Living Increases in Alberta
152. The Statistic'-, C<:n1ada data relating to the specific percentage changes in Alberta CPI in
the years from 2002 o 2013 is set out in a table included in the Joint Book of Agreed Facts and
Exhibits (the AFF) referred to there as the ''Annual Percentage Increases in the Average
60
VVeekly Earninw) d !n the Consumer Price Index for Alberta and Canada, 2002- 2103". [The
AWE & CPI Data at AFE #9]',.
153. One of the· n1onthly website publications of Alberta labour is entitled "Bargaining
Update'·, It is ther>· described as "a monthly summary of key collective bargaining activities in
Alberta and other iuri~.dictions" and it is further noted that amongst the following information
availablr: in each edition of the Bargaining Update is liconsurner price index information". A
copy of a recent providing some such CPI information (for Alberta and Canada) in graph
format is attached her cto. That information was provided therein on an annual basis for the
period of 2009 tc ?Cll4 and on a monthly basis for the period of July 2013 to July 2014
[Bargaining Update ;\ugust 2014, TAB #12, at pg. 9],
154. In terrns Hit 1cipated future increases in the Alberta CPI the following is noted in The
Finance Fconornic Report. [The Finance Economic Outlook Report at pg. 2, TAB #8]:
Consurner pr~<:c index (CPI} inflation ... is expected to be 2.6% in 2014 ... (and) is expected to be 2.5 1:Yi, m 201 1
·), rnurning around 2% through to 2019.
155. The ctHrc·nt /\!berta Finance projections for the specific percentage changes in Alberta
CPI in the years 201/J. to 2019 are set out in The Finance Economic Indicators Table of The
Finance EconorrliC Outlook Report. The projected increase in Alberta CPI for 2014 is 2.6%, for
2015 is 2 for ?016 i~; 2.1% and for 2017 is 2%. [The Finance Economic Indicators Table at
pg. 3 of The Finance Lc(mornic Outlook Report, TAB #8)
Average yVeQJ$.l_y __ Earnings (AWE) is Not an AQpropriate Salary Inflation Protector
156. /\s noted the specific wording of Criterion H refers specifically to the judges'
position relative tc· the changes in the Alberta Cost of Living Index. It is important to note that
It should be nou'il :tq~. reported data is virtually identical to the Alberta CPI data, referred to earlier, as
reported in the Tabk· n I t\e l inance Measures of Wage and Earnings Growth Report, at pg. 3, TAB #8
61
Criterion H does nut for reference to any of the other wage and earnings growth measures,
including to change;~, !n /\verage Weekly Earnings.
157, The reported changes in Average Weekly Earnings (AWE) have been used to track
income variation:;;, For instance, The Finance Measures of Wage and Earnings Growth Report
notes that changes m 1\lberta's Average Weekly Earnings (AAWE) has 11 in the past been used to
index MLA sa!anes, minimum wage and teachers' salaries'' [The Finance Measures of Wage
and Earnings Cirovvth neport TAB #9, at pg. 2].
158. 1\Jeverthc!css are strong arguments as to why the use of AWE is not appropriate as
a tool to measwe vvagc: growth. Noted changes in AWE are certainly not intended to be an
inflation prot:ectior; For instance, The Finance Measures of Wage and Earnings Growth
Report states the fr_·d!ovving in describing AWE: [The Finance Measures of Wage and Earnings
Growth qeporr} TAB #9, dt pgs. 1-2].
,:.\··.JEf'(J gt?
!Yy' thf' .. HlH'\d' 1
week!y hour', t
·--are <1 measurE> of earnings, not the wage rate. AWL is ~~!so affected
<:ivtrtime paid and the average weekly hour~> worked by an employee. Average
h.: affected by compositional shifts in employment such as shifts between the
number of full W1H' and part-time employment, and changes in the amount of overtime worked.
Average \Net>kl/ hours dlso tend to rise during a boom and fall during a recession which affects
AWf.
horn a com t ptua ~tandpoint, (the AWE} does not accuratelv reflect the movements in the
underlying wage rate because it is also affected by changes in the arnount of overtime, shifts
L~t:>twccr, fuii t ·Hld part·time work, or other changes in weekly hours.
159. The follov~'in~~ pertinent comments about AWE should also be noted: [The Finance
Measures of Wage drHi [~arnings Growth Report, TAB #9, at p. 2].
rl\err t\ .:11\i.l ,>·:n':,JJer:_,ble variation across different industries. In 2013, for Pxamplf.:>, average
weekly earn1n1"' f:)i 1\lberta as a whole increased by 3.5%. but increases ranged from (', 1.46%) in
accornmoCidt!<Y, food services to /./4% in arts, entertainment and recreation.
Frorn J practP, I :,t<>ndpoint the average weekly earnings series can also be subject: to ~>ubstantial
rcvh,ions, St<iti;:ic, Cmada normally releases preliminary estimates for the preceding year in
late February, ;;nci <'evised estimates a month later, While revisions are normally modest they
c;:,n be :'ubsiDr,rl<il, In 2009, for example, Statistics Canada revised its methodology for
C"~,tirn;lting avcc;3gc weekly earnings, which raised the estimated growth for 2008 from 4.8~{) to
CdJS'{, (the 2009 nurnbcr has since been revised to 5.9%).
62
.160. One of the nHJnthly website publications of Alberta Finance is entitled ~~Labour Market
Notes~~ /\ recent ~~:~SUI.:' included a section entitled "How do hours worked affect earnings
growth?'' !t crnphr-1:;;,ized that a variety of factors besides the underlying "wage rate" affect
Average Week!v [,::11 nings, including, very notably, the amount of "overtime" worked. [Labour
fvlarkc:.t .. Not·es, J. ~~- 1 ··t 2014 AFE #12 at 2·1 -· •' L P/ .L ' ... I I ' • pg. . . The following comments were therein
included:
vVhile the Hl the wage rate does have a substantial irnpact on earnings growth, it is not
11lt' cnly fdticr ~hdt deterrnines average weekly earnings (AWE). C1rowth in average weekly
r our:. anu v>r>nJc•·,iuonal factors in the labour market, including industry composition and the Lre<jkdovvri full tirne versus part-time ernployment, also affect average weekly earnings
Hours worked but:)y£.•d by overtime
Wl''t:·i<i\ il<)ur<, have increased by 5.9% since April 2009. Albertans, on average, work
roughlv 32 per week; the Canadian average currently sits at around 30 hours per week.
Overtime hour:, 1.vhu::h have increased by SO% to 1.8 hours per week in Alberta, have helped fuel
the growth in hours. Overtime contributes to earnings growth in two ways: through
increa:;ing hour'> w;Hked and by the higher wage paid tor overtime.
<--Summary
Growth in the vvage rate is not the only driver of growth in AWE. Growth in average weekly
hours, and specifically overtime hours, contributes as well. Compositional effects of employment <He also playing their part. The growing share of employment in the goods
[Emphasis Added.j
161. One of the
increases both average hours and earnings, and has contributed to overall
larger share of full time workers have also played a part in AWE growth.
website publications of Alberta Finance is entitled {'Weekly Economic
Review''< A recent 1ssue included reference to some telling recent statistics relating to Alberta
Average Wc:ekh; F rHn It was there noted that the rate in AAWE varies considerably
amongst different nr~, of the economy and has, for instance, recently risen sharply in certain
energy extract1on •>ccupations and spiked in accommodation and food services industries.
[\lveckly Econorn1c August 29, 2014, AFE #11, at pg. 1]. The following comments were
therein included.
Alberta avera~'( earnings reached $1,156 in June, an increase of 5.0% from June 2013 and
0.5<;(, from r'/LiV arnings in the goods producing sector rose faster than in services, though both
sectors post.c·c :-.ulirl growth. Mining, oil and gas extraction earnings have been rising sharply
since Oc tobc-r J ;111d in June experienced the fourth consecutive month of double-digit year··
63
I)VCt YPiH
~>pikH:.i in
1\J at km;li I v
procuc lrlf, Nt::wfound!:ln·
162. For all of
{Chart 1). Average weekly earnings in accommodation and food services c;•% frorn May and 5.4'% from June 2013.
$940, up 3.3% y/y. Growth occurred in both the goods and service·· Alberta had the second-highest AWE growth of the provinces, after
Lnbrador at 6 1 ~{. y/y.
reasons, it should be clear that recorded variances over time in AAWE
are J11 suited to be' utilized as any sort of measure for changes to judicial compensation. To start
with, as noted .. variances in AAWE do not track inflation and are therefore not intended
to be utilized as df'l\i sent of inflation protection tool. As also noted, AAWE does not specifically
measure or trace changes in any underlying salary or wage rate per se. To the contrary,
changes in /\AVvE reflect the amount of overtime worked throughout the economy, but
with the bulk of thar uv(•rtime worked primarily in certain select sectors of the economy.
)um . .Qlaf~L..QL_Il~:ita re the Past, Present and Anticipated_ Average Weekly Earnings Ln c rca s c s J_!l_[~JJ~5~Lt~
163. As set out AWE as a statistical measurement 1s not designed to be an inflation
protection tool <:md bc~cause of that and the other reasons noted above it is submitted that
changes Alberta in /WVF (AAWE) are not appropriate to use as an accurate measure of wage
growth. At rno\~ AAWE data may have some general relevance for comparative
information pu rpo\c·:,
164. The Statistic~. Canada data relating to the specific percentage changes in both Alberta
and Canada AVI/E in the years from 2002 to 2013 is set out in The AWE & CPI Data Chart [The
AWE&. C:PI Data Chan, at AFE #9t5
1.65. The rnonthlv publication of Alberta Labour entitled {/Bargaining Update" also provides
information in
lt should be· noteci
reported in the Tabk'
,··d!1 ion as to ({Alberta Average Weekly Earnings data". A copy of a recent
t h1'; reported data re the Alberta AWE is virtually identical to the Alberta AWE data F 1nance Measures of Wage and Earnings Growth Report, at pg, 3, TAB #9
64
issue providing sc)rnc' such AAWE information in graph format is attached hereto. That
information was pn;v1ded therein on an annual basis for the period of 2009 to 2014 and on a
rnonthlv basis fen t pt:)riod of June 2013 to June 2014. [Bargaining Update, August 2014, TAB
tt12, at pg. 8').
166. That same i of the Bargaining Update also includes in graph format a comparison of
Albert C:PI and /\1\\/'JF. !hat information was provided therein on an annual basis for the period
of 2009 to 201Ll t)n a monthly basis for the period of July 2013 to July 2014. It seems
apparent frorn a rcvievv of same that although these two measures usually move somewhat in
conjunction with c:aci1 other that the AAWE percentage index is usually higher and certainly
more volatile. For Hlstance, the graph discloses a sudden monthly year-over-year spike in AAWE
for June of 2014 to (Bargaining Update, August 2014, TAB #12, at pg. 10].
167 The current J\lbcrta Finance projections for the specific percentage changes in AAWE in
the years from 2Cn to 2019 are set out in The Finance Economic Indicators Table of The
Finance Econormc (hrtlook Report. The projected increase in AAWE for each of the years 2014,
2015, and 2016 is .3 and for 2017 is 3.5%. [The Finance Economic Indicators Table at p. 3 of
The Finance Econornic Outlook Report, TAB #8]
168. Even assurning that data respecting changes in AAWE may have some general relevance,
it is vt::ry clear 1\(>non H does not refer to comparing levels of or changes in the AAWE to
levels of or c 1 /\VVE in those in other provinces. There is reference in Dr. McMillan's
Report to levels or ct1dr1ges in AAWE but the references are only in comparison to levels of or
changes in AWE in t other provinces. There is no specific reference in Dr. McMillan's
Report to the datZJ n'!ating to what Criterion H specifically refers tq, i.e., changes in the Alberta
Cost of Living lnde>'. ! C>r. fV1cMillanJ s Report, pgs. 17 -19].
65
Specific Consideration of Criterion I -The Nature of the Jurisdiction of Judges
169. Generally, Provincial Court judge may hear matters arising under legislation, including
the Provincial Court f\ct ("PCA") [JBA 13L the Criminal Code of Canada, other federal and
provincial legislation creating criminal or quasi-criminal offences, and federal and provincial
legislation relating to young persons and families and civil disputes/ the features of which are
defined in provincJ:;J! legislation. The Masters' jurisdiction arises from ss. 9, 10 and 11 of the
Court of Queen's Bc:·!Kh l\ct fJBA#14].
170. The Prov1nri1l Court sits in 71 communities across Alberta: there are 21 permanent
location:; and anotriu t:;o circuit points where the court sits on certain specified days: 2014
Court Calendar:u. fExcerpts at TAB #12]. Although all Provincial Court Judges can carry out any
of the function'; of a Provincial Court Judge anywhere within the province, for administrative
purposes upon appomtment judges are assigned to one of nine divisions/ each of which is
headed by an Ass1stant Chtef Judge.
171. As Febrtidrv 2014, there were 116 full-tim·e judges, 27 part-time judges, and 2.5
vacancies [AFE #1) rrH're are also 6 judges receiving LTDI benefits fAFE#l].
172. Though appcmJU?d to either Edmonton or Calgary and sitting daily there, the 5 full-time,
3 part-time and 2 per diem Masters also hold regular sittings in 6 other communities, and will
sit upon request in ;) further 3 communities.
173. S;ncc the .?009 Commission issued its final report there have been two changes to the
jurisdiction of the prnv1ncial court. In 2011 s. 10 of the Proceedings Against the Crown Act was
repealed to permit cornrnencement proceedings against the Crown in Provincial Court, Civil.47
http:/ /www.qp.alberld. c<:</ d ocuments/court/2014 _Court_. Calendar. pdf r.: Proceedings Aqoimt ti;, (;own Act, RSA 2000, c P-25
66
Further) <md August 1, 2014, the Provincial Court's monetary jurisdiction was
increased to
174. The JUriSdicUorh of the Provincial Court and Alberta's superior court, the Court of
Queen's Bench. arc often compared. Though not as pronounced today as it was in the past, the
differences betvv·een respective jurisdictions continue to be significant and meaningful.
1.75 ConstituticJrl;:;!lv, superior courts such as the Court of Queen's Bench are courts of
inherent jurisdictiOn, vvhile provincial courts derive their powers from statute. The Court of
Queen's Bench r(; appeals from certain provincial court decisions, jury trials and can deal
with civil rnatt:ers no monetary limit:, all torts, estate matters, matrimonial property and
divorce proceedi proceedings and judicial review, all of which are outside of the
Provincial Court's pntsdiction. The Court of Queen's Bench deals with the most complex and
Specific Consideration of Criterion J - The level of Increases or Decreases, or both, Provided to
Other Programs and Persons Funded by the Government
176. Criterion J h "The Level of Increases or Decreases, or both~ Provided to Other Programs
and Persons Fw--1dc~d the Government" .
.Be~gnt B..!J?..f:'XJ·.~~ ... VL~ge Settlements- Unionized Public Sector
177. As noted one of the monthly website publications of Alberta Labour is entitled
"Bargaining Update" lt is there described as "a monthly summary of key collective bargaining
activities in /\lbcrta other jurisdictions". It is further noted that the information available in
each edition of Bar1<aining Update includes: quarterly privatE:~ and public settlement trends;
and current major negotiations in Alberta.
178. A copy reccr1t issue of the "Bargaining Update 11 included a chart entitled ((Wage
Sett:k~rnents in Alberta: Weighted Average% Annual Change by Sector- 2013-2018". Amongst
67
other information that chart provided data, for each of those years, respecting the average
annual wage perccnt<igc changes related to the Alberta public and private sector settlements
separately and abo for all the settlements taken together. As noted there, the average annual
wage perc(·ntagc' r1ges related to Alberta public sector scttlernents were as follows: for
[Bargaining Update, August 2014, TAB #12, at pg. 6]
179. Attached hereto is a report prepared by Dave Thompson (Labour Helations Advisor,
Alberta Labour) dated July 31, 2014 ("Dave Thompson's Report"). {A copy of Dave Thompson's
Report. is attached ,Jt TAB #13.)
180. Dave ThornrJc)or/ Report: consists of the following:
• ::1t1L' entitled Unionized Public Sector Percentage Wage Increases in t-~.lberta (the
"t\iber' a L'nionized Public Sector Wage Table");
• d I cnuUed Average Unionized Public Sector Percentage Wage Increases in Other PrcvH• {!"1--·,{· "Non .. Aiberta Public Sector Wage Table"):
• :.1 r'.f·' !~ i •!titled Public Sector Bargaining Summary.
181. The Alberta Unionized Public Sector Wage Table indicates the following in regard to
recent Average /\nnual Unionized Public Sector Wage Increases in Alberta49:
• in /01 ) "<;;
• jn ,, ?OJ .., l .~;))
• In )(!) / ~
• If) . ~~ ~.;~).
[Dave ·rhcnnpson's Report, the Alberta Unionized Public Sector Wage Table, TAB #13]
It ~hould be notr::d 1!1<11 1 ht: data for 2017 was based on a small sarnple size of completed settlements (i.e.,
cornpared to pr eviou' rHrnely on only 7 public sector settlements representing only about 9000 employees.
It is noted thi:1t the>· P''', cntages are slightly different,· although substantially similar, than those referred to in
paragrdph 170
68
J\eCQ.!J.1J~J9.t.~!.0_W.£ille Increases-· Non-Unionized Public Sector
182. The ~Jl imstr•r compiled tables providing data respecting certain specific Alberta
Public Sector ~.!lan<Jgr:rnent Wage Increases, covering the time period of 2003 - 2016, with
particulars as foilov·Js
• t vvo I
• t'-.. /./f.) j
I ables relating to general management wage increases and to legal officers ·~.·.··tses (percentage);
relating to senior officers wage increases (percentage and numerical);
relating to deputy minister wage increases (percentage and numerical);
• cl o;)\' cd ()rder in Council 332/2014 (which provides some details with respect to the varic)u~ ':.;li;:~ry ranges of the senior officers for the years 2014-16 and also some
information as to which specific public officials fit in which salary range).
I Crt::n(::ral Data Related to Public Sector Wage Increases, 2003 ···- 20161 AFE #10]
183. The Genet i D:Jt<l Related to Public Sector Wage Increases discloses the following.
There was no sJiarv mcreases for Alberta Public Sector Managers (including Senior Officials and
Deputy Ministers} ·or fiscal year starting April 1, 2013. 50 The average percentage salary
increase for all 1\lberta Public Sector Managers for the 3 year timefrarne of April 1, 2014
184. It is the and onerous obligation of the GOA to determine exactly how to responsibly
allocate its limited hnancial resources. The specific allocation of fiscal resources is, of course~
subject to overrid policy considerations. Even accepting that Alberta may be "well off" as
compared to mosl other provinces does not mean that the GOA can take lightly its fiscal
obligations. The· GO/\ mu~.t strike a reasonable balance in making allocation decisions in respect
of all of the rnynad ol pc,tential financial demands it faces.
But The ,(\!bcrta Puhl:c Managers did receive a lump &LH11 payment of $1,850 on April1,. 2014.
69
1.85. Based on tl·-~c above noted comments of Dr. McMillan (see paragraphs 134-135), it
appears as if the
rnanncr. This
still investing in
faced some significant fiscal challenges in recent years in a responsible
h;:wing prudently striven to adopt restraint in its overall spending while
a! projects to keep the economy rolling.
186. Hecornrnend;Jtions made by this Commission calling for an increase in the compensation
payable to the ProVHlC!(·ll Court Judges and Masters, during the term of this Commission, should
bear in mind th r~';:b<)nc·lbleness of above noted prudent fiscal policy of the GOA. These
recommendations ~J1cnlld be made in the context of the GOA's obligations to responsibly
allocate its lirniteci financ1al resources.
THE MINISTER'S COMPENSATION INCREASE PROPOSAL
General Comments
187. The Minister >upports a principled approach to determining appropriate judicial
compensation in f'd!Jerta That approach involves duly considering all of the Criteria, as
discussed in dctad ahov1:.
188. /\ straigh!forw.:1rd "formulaic approach", involving some sort of simple numerical
comparison of cornpensation payable to other Canadian judges, is not sufficient.
189. Having it is nevertheless important to carefully consider what other
Con1rnis~.ions have t•,'cornmended by way of compensation payable for other Canadian judges.
That is because is sound and well thought out rationale behind the previous judicial
compens.ation l·econllT1Cndations made in this jurisdiction and other comparable jurisdictions.
These recomrnc:ndations have, in turn, led to the various historical compensation comparisons
referred to above
190. This ts not tc\ :;uggest however that this Commission should deviate from its obligation
to complete an assessrnent of the Criteria having regard to the unique Alberta situation. In fact,
70
the Cornrrlission ':. r ccorrnnendations must represent a (/made in Alberta" balancing of the
various Criteria.
191. 1\nd in to designing a 1'made in Alberta" recommendation, the Economic and
Financial Critena should be considered by this Commission to be of "considerable importance".
Full discusston of of the Economic and Financial Criteria, and of the significance of same, is
set out above.
General °Costing" Issues
192. Obviously, ,nn, increase to judicial compensation or benefits (including increases to
salary, improved benefits, or improved other benefits) carries with it an increased
"cost''.
193. Having regard tel its overall obligations, and in specific relation to some of the Criteria, it
is important that
as to the specl
it is feasible and practicable the Commission have accurate information
of the associated "'increased cost 11 related to any proposed judicial
compensation incrc;:isC that the Commission is considering.
~.!l Agree.f!JY)_g1J:~odology for Costing of Any ProQosed Salary Increases
194. The Min
respective salary
dnd the Association have exchanged information in respect of their
proposals and also have agreed on a methodology for costing of such
(or any other) propo:;cd salary increases. Stated simply, the parties have agreed that the use of
an Assumed Benefn Ccmtribution Rate of 27.45% (made up of 2.05% for LTDI costs and 25.40%
for pension costs) ~~. dn appropriate estimate of the impact of salary changes on pension costs.
Some specific appl!c1t1ons of this costing methodology are set out below.
The Minister's Salary Increase Proposal
195. The basics ot Minister's Salary Increase Proposal are set out above, in paragraph 1.
As there noted, the f\1Hlister proposes judicial salary increases for each of the four years equal
71
to the percentage nHrcases in the Alberta Consumer Price Index (Alberta CPI) as of December
31 of the previow. ,J!cndar year, to a maximum of 5% per year.
1. 96. As noted <1 (see paragraphs 86-89), the 2009 Commission emphasized that its
objective was to h.tve ''made in Alberta~~ salaries for provincial court judges and masters".
And as detailed m keeping with that objective the specific recommendation of the 2009
Cornmission was ' ttJ utilize changes in the Alberta Consumer Price Index to trigger salary
e1djustrn2nts in ?011 and 2012, as opposed to adopting the mechanism of tracking increases in
the Industrial 1? Income Index for Canada, which is used in Ontario''. As also noted
there, for the 2009 C.onHTlission the determination to so utilize the Alberta CPI was a key part of
it reaching a distincUvc "made in Alberta" conclusion with regard to the most appropriate
n1echanism for anrn~:llJudicial salary adjustments.
197. Of course, the\ f\Ainister's Salary Increase Proposal adopts the exact same mechanism to
''trigger (jud1cia!) rv' adjustments'' (i.e., Alberta CPI) as was chosen by the 2009 Commission.
This by itself is a suonr~ drgurnent that the Minister's Salary Increase Proposal constitutes an
appropriate "made m /\lberta" solution that strikes the right balance having regard to all the
relevant criteria.
198. !f the Min
judicial salaries lor t
152), the actual
2013/14 of $266,63
~1alary Increase Proposal was recommended and implemented, the
first two years would be as follows. As noted above (see paragraph
CPI increase for 2012 was 1..1%, which would result in a salary for
;md the actual Alberta CPI increase for 2013 was 1.4%, which would
result in a salary for 20 J 4/15 of $270,635.
199. Based on urrc•nt projections, if the Minister's Salary Increase Proposal was
recommended ;:-mel 1mplemented, the judicial salaries for the last two years would be as follows.
As noted above paragraphs 154-155 L the projected respective Alberta CPI increases for
72
2014 and 201~:; arc 2 and 2.5%. If those projections hold such would result in a salary for
201S/16 of $2T7,39lf and a salary for 2016/17 of $284,598.
The Minister's Salary Increase Proposal Would Protect Judicial Salaries Against Inflation
200. The Minister ', Salary Increase Proposal proposes judicial salary increases based on the
percentage incrcd(:.e\ 1n the Alberta Consumer Price Index (Alberta CPI). That is precisely
because, as noted dhove (see paragraph 147), Alberta CPI is the appropriate statistical measure
to utilize to ensure that salaries are not eroded by the effects of inflation. As also noted above
(see paragraph 11)0L li'LJt was also expressly noted by the 2009 Commission.
201. The Minister s Se1lary Increase Proposal proposes a "cap" on the salary increases, namely
a maximum of per year. This is part of the proposal essentially for fiscal planning purposes.
The GO/\ requires s:m·1c degree of certainty in its anticipated expenditures for each new fiscal
year. A~> is noted c+,evvhere herein it is certainly not expected that Alberta CPI will in the term
of this Cornrniss!on corne anywhere near the rate of 5% per year. But on the unlikely occurrence
that in 11 partlculdr Vf:'dt of the term of this Commission the Alberta CPI did exceed that rate,
appropriate salary strnents could be made by the next Commission.
Comparison of the Minister's Salary Increase Proposal to Public Sector Increases
202. Based on the current projections for Alberta CPI percentage increases, the Minister's
Salary Increase Propos .. :JI is in line with all of the recent Alberta public sector settlements. As
noted above (see paragraphs 152 and 155), the actual percentage increase in Alberta CPI for
2013 was 1.4% the projected percentage increases in Alberta CPI for 2014 is 2.6%, for 2015
and for 2017 is 2%.
203. In paragraph 181 above it was noted that the Average Annual Unionized Public Sector
Wage Increases in Alberta tor 2013 were 2.1 %, for 2014 are 2.2%, for 2015 is 2.3% and for 2016
is 2.8%. [There ar slightly different, but substantially similar, percentages referred to in
paragraph 178.]
73
204. /\s noted (see paragraph 183), the average percentage salary increases for all of
the Alberta Publit: Sector Managers for the 3 year timeframe of April 1, 2014 to April 1, 2017
was 2.25%.
Salary Comparison to Other Canadian Judges
20S. /\s noted abc1ve (see paragraphs 96-98), the salary level for Alberta Provincial Court
Judges has. in the~ 1 C yc~ar period to 2012/13, usually been either first or second in the overall
provincial ranking~.
206. P\ rcvie\·V of The Puisne Judges Comparative Salaries Table discloses the following
percentage cornpar information for the timeframe of 2013/14. [The Puisne Judges
Comparc1tive Salaric·': T;Jble at AFE #5]
J.
7
8
12
Table Three
Comparative Judicial Salary Percentage Ratios (2013/14)- Assuming Application of the Minister's Salary Increase Proposal
!\I be rta/B. C.
l\l bert a/Manitoba
/\lberta/New Brunswick
113%
113%
1\!berta/Newfoundland & Labrador
;\lberta/Northwest Territories
N/A
N/A
Alberta/Nova Scotia
J\lberta/Ontario ,, ..•... ___ ....................... , .................................... ---· Alberta/Prince Edward Island
.Alberta/Quebec ·················-
/\I be rta/Sas katch ew an
/\lberta/Yukon
/\lberta/Federal Judges
74
1
97% ............................ --·-·-.............j. ...................................................................... _ .. , ...... --.-............. 1
111%
11.2% ................... - .................. , ..... ~-- ............................................................... , .. - ................................... l
104%
103%
90%
207. A review ot above Table demonstrates that for the timeframe of 2013/14, aside
from the Federc~!lv Appointed Judges, Alberta Judges would continue to rank a very close
second~ only slight IV behind Ontario in salary arnongst all Canadian Judges.
208. /,s also noted above (see paragraph 84), the 2009 Commission had endorsed the
principle· of "appn:n<:ln~·~;;te parity~~ in respect of the comparative judicial salaries in Alberta and
Ontario. The 2009 C.onHnission also noted (see paragraph 100), that historically (to that time)
there had been an average salary difference of about 5%, "with Ontario salaries exceeding
Alberta salaries'' but " ... the trend has been to more closely match pay between these
jurisdictions over last decade".
209. As is evident irorn review of Table 7 of The Comparative Alberta and Other.Jurisdictions
Judicial ~;alarie() ·rahif~s i:>ased on the salary recommendations made by the 2009 Commission
(and implemented thereafter) in the period from 2009/10 to 201.2/13 there has been on
average parity bet\,vC>cT the comparative judicial salaries in Alberta and Ontario. [Table 7 of The
Comparative Albcrt<J Other Jurisdictions Judicial Salaries Tables, at TAB #4]
210. But as further noted above (see paragraphs 86-87), the 2009 Commission had also
specifically made point that Alberta should not simply base its judicial compensation on
that in Ontz1rio ;H1d h;:H the setting of Alberta judicial cornpensation should be one "made in
Alberta. 1\nd very nc;tdt'l!v· in that regard, as also noted above (see paragraphs 88-89}, the 2009
Commission. in rcccrnrnending what it referred to as a distinctive "made in Alberta" method to
trigger judicial salarv adjustments, specifically declined to adopt the Ontario Mechanism For
Annual Judicial Salar'i Adjustments (i.e., adjusting annual judicial salary adjustments by tracking
increases in the Industrial Aggregate Income Index for Canada) but instead determined to
utilize changes in the Alberta CPl.
75
211. The Ontar1o P·/lcchanisrn For Annual Judicial Salary Adjustments is described above, at
paragraphs 90-9 J. :\s set out there, it basically involves tracking increases in the Industrial
Aggregate Income' !nc1ex for Canada (IAI Canada) to determine the statutory judicial salary
increases in OntaraJ. /\ccordingly one can refer to current projections as to IAI Canada
percentage incrPdSC's to estimate what future Ontario judicial salaries might be according to
application of The Ont;Jrio Mechanism For Annual Judicial Salary Adjustments.
212. Of course. Ontario Judges stand to be given additional salary incr~~ases on the
recomrnendatior·i Jn Ontario Cornrnission. As noted in the chart ({Status of Judicial
Cornpensation Procc'SSi::':> in Canada" (AFE #6 ), an Ontario Commission process is expected to
soon get underway to cover the period of April t 2014 to March 31, 2018. But as noted above
(paragraphs 92 93). ;)', set out in the The Kaplan Commission Report, the last Ontario
Commission (in n:·~:,pcct the period of April 1, 2010 to March 31, 2014) made no
recommi2ndations for any salary increase over and above what was statutorily prescribed
pursuant to The Oni fv1echanism For Annual Judicial Salary Adjustments.
It1.Q_Assos:iat_i_gn:.~:. .. ~alary Increase Proposal Should be Rejected
213. The Ministc;r understands that the Association's proposed judicial salary increase
proposal (the Assouz1t1on's Proposed Judicial Salary Increase Proposal) is as follows:
• the ~;;Jiarv for judges be increased to $275,000 effective Aprill, 20:13;
• the saiary for judges be increased on April 1 in each of 2014, 2015 and 2016
or: the percentage change in the Industrial Aggregate Index for Alberta in
the ing calendar year.
214. As noted above (see paragraph 91L the Ontario Mechanism For Annual Judicial Salary
Adjustments bases statutorily prescribed salary adjustments for Ontario provincial judges
on changes over <l specific year of the average weekly wages and salaries as reported in the
Industrial Aggregate Index for Canada (IAI Canada) published by Statistics Canada.
76
215. ln essence 1 Association's Proposed Judicial Salary Increase Proposal very closely
parallel~ thr: Ont;nic fv1c,chanisrn For Annual Judicial Salary Adjustments, except that the former
seeks to rc'ferenc<· pt:rcentage changes in the Industrial Aggregate Index for Alberta (IAI
Alberta) wrdle references percentage changes in the Industrial Aggregate Index for
Canada (lA! Can,:HJ As noted above, the IAI Canada records changes in Average Weekly
Earnings for Canada. ~;!milarly, the IAI Alberta records changes in Average Weekly Earnings for
Alberta (AAWF). A.s above in some detail (paragraphs 158-162), then: are various strong
arguments <is tcrwh/ the use of AWE is not appropriate as a tool to measure wage growth. On
that basis <Jior1e. is Commission should reject the Association's Proposed Judicial Salary
Increase Propo5al
216. ln addition. thb Commission should give considerable weight to the fact that, as noted
above, the 2009 Ccnnrnission expressly declined to endorse annual Judicial salary adjustments
that tracked increases in the Industrial Aggregate Income Index (or, in other words, Average
VVeekly Earnings} but 1nstead determined to utilize for such purpose changes in the Alberta CPl.
217, Table Four below sets out comparisons for the years 2012/13 to 2016/17 of the
following Actual and Projected Judicial Salaries:
• Alberta Judicial Salaries (Actual and Projected, as proposed by the Minister)
• tdbc! tJ Judicial Salaries (Actual and Projected, as proposed by the Association)
• Orttano Judicial Salaries (Actual and Projected in accordance with The Ontario
McdEHHsm For Annual Judicial Salary Adjustments)
77
Table Four
Judicial Salary Chart I ........ ...... ······· . ·····---·-·-·-·--------------~--............ - ............................................ _ ............... f ........... _______ " ..... -----·--··--···--·-------·----, ..... Year , Alberta .. Judicial Salaries I Alberta Judicial Salaries , Ontario Judicial Salarie~ f ... -~ .... Proposed by GOA ! Proposed by APJA i Actual & Proposed* l ............. :.. CPI · ---~--s~-~-~-~v------r------~-Ai ... = ... A.a··----- .... -- ....... s.~'l';~v-· .T ........... I"AI-~ ca~ ......... 1.. sala~-y-··· j
I .. ~.9.--~ .. ~l~}. 1 2013/14 r·-·2oi47is . 1 ~---------···~-·····. j ..... .
i 2015/16 !
1.·_-_-_2 __ .. __ -_o ____ ·-___ 1 __ -__ 6_ .. __ --___ /_-____ -_1 _____ ._7_._ .. _·_ .. . .. _·_1.· .. -.. --.-.. ~ s ' ' s ' s · _ 2. )'>(, .l .;284,3?: __ ~ ___ ..1 3.6% ........ ..i. .. ______ _}_gs,48_?. ____ ... L ... _____ 2.~ __________ L ... 294,529 1
'"2014 ancl 20:15 fon'c 1:<::, horn the Conference Board of Canada Surnrner 2014 Canadian Outlook
({Aiberta'sJ~!.~~}~~~~-antage"' --·-General After Tax Salary Comparison
218. While perhaps not a major factor in the whole scheme of things, in comparing the
financial compens;rtirJn of Alberta's judges to those in other Canadian jurisdictions it should be
noted that, like the· rnd:ority of Albertans, Alberta's judges do enjoy a certain /(tax advantage".
219. There is a section in Dr. McMillan's Report referring to what he refers to as "Alberta's
Tax AdvantagefJ. ·rh:Jt mcludes a specific discussion of that fiAdvantage" at what Dr. McMillan
refers to as 11Thc Farniht Level". He refers to an analysis in Budget 2014 which he describes as
That dnalysi';, C",'irnatcs the taxes paid by families with two children across the provinces for four levels of tnUHnc·. The analysis covers the major taxes facing households and reports the amounts pcr'~onal income tax, provincial sales tax, health premiums, payroll tax and fuel
220. Dr. Mc~\<~tllan mcluded a specific Table, entitled Comparative Tax Advantage to Alberta
Families, which uJntair<. some specific dollar figures coming out: of that analysis about which
Dr. McMillan cornrncntcd further, as follows [Dr. McMillan's Report, pg. 41]:
(i1) :,;,;qqn uize'; the evidence by reporting the amount by which the sum across all those tax··: 1ovver in Alberta; that is, the tax advantage to Alberta families. Alberta reports an dciv mt:Jge over every other province for each family income class ($35,000, $75,000, $100 UCJO :md $200,000). The advantages are considerable, even at the 1m-vest income level.
78
221. Dr, McMillan also in his report referred to additional information in Budget 2014 in
respect to <:! corr1pa of "effective tax rates" in certain provinces and he duplicated a graph
in regard to san1c·, \!"\ that regard, he stated {Dr. McMillan's Report, pg. 41-42):
fhe U\lerall LL"- dch~antage in Alberta across income classes can be dernonstrated by looking at dfectivf.' tax ,.if•'> /\ cornp<:1rison of the average effective t<:Jx rates (i.e., taxes paid as a percentage huu ,(Jwld incomes) ., for Alberta. British Columbia, Saskatchewan and Ontario ... (shov;s he effective rates for Alberta households are consistently and well below those in t!v:: othH rhrcc provinces .... This approach further demonstrates that the overall tax advantagr: for 1\lt)('!Ums is substantial and that it is distributed across the population.
22 2 Based on Uv' foregoing, in general terms at least, it is clear that Alberta Provincial Court
Judges have a "tax del vantage" over their colleagues in the other Canadian jurisdictions.
Calculation of the Cost of the Minister's Salary Increase Proposal
223, Table Five below sets out a calculation of the additional salary and benefit costs
attributable to the rv1in!ster's Salary Increase Proposal.
Table Five
Proiected Salary and Benefit Costs for the Minister's Salary Increase Proposal
as at 2013/14 139.0
Projected Additional Salary and Benefit Costs for 2013/14 to 2016/17 assuming the Governrr1ent of Albc:rtr1 's Proposed Salary Increases based on Alberta's CPI (_1S of December 31 of the previous calc·ncl<Jr vear. The Assumed Benefits Contribution Rate = 27.45% made up of 2.05% for LTD! co(;t~, 25.40% for pension costs (based on the GoA's current service cost as a percentage of totdl pc·nsionable earnings as per the December 31, 2011 actuarial valuations for the registerc·cl and unr(~gistered pension plans).
Year Current Salary
l ~---'''"'""" ' ''' .. ,f., .. ,,., .. ,., ............. .
f· '22''"0o---~4~/,.-11. 4s J. ~-2?:66':~:~~-! I 1 ; ~ ,'),I .J' , .. , ... , .. , .... , ............. ,., .... ,,, ...... r ........ __ ....... , ........... ,
L .. ~g-~?/16 ,j ~;263,7.3 ,_.~Q_!~l!? . .J. $263,73 j
Total l ... ,,, • v·•·· .-.'•ou.v•·"''·"-•m•n•--·~·-•d>
224. /\s per Tabk Fcda. the projected additional salary and benefits costs attributable to the
Minister's Salarv Proposal would be $7J58,563.
Calculation of the Cost of the Association's Salary Increase Proposal
225. The f\1inistcr understands that the Association's proposed judicial salary increase
proposal (the Associ:rtlon's Proposed Judicial Salary Increase Proposal) is as follows:
• the· for judges be increased on April 1 in each of 2014, 2015 and 2016 based on the percentage change in the Average Weekly Earnings for Alberta (AAWE) in the preceding calendar year.
226. If the Proposed Judicial Salary Increase Proposal was recommended and
implemented, thP 1udiciill salaries for the first two years would be as follows. As noted above
the salary for 201 14 vvould be $275,000. As noted above (see paragraph 164), the AAWE
increase for 2013 VJ(l':, r;% and so the salary for 2014/15 would be $284,625.
227. Based on u.1r-rc•nt projections, if the Association's Proposed Judicial Salary Increase
Proposal was recornrncnded and implemented, the judicial salaries for the last two years would
be determined as foilo\vs, As noted above (see paragraphs 167), the projected AAWE increases
for both 20:14 -.>OJ are 3.6%. If those projections hold, such would result in a salary for
201S/16 of S294 .. R/ ;Jnd a salary for 2016/17 of $305,487.
228. Table Six sets out a calculation of the additional salary and benefit costs
attributable to the· 1\ssocidtionfs Proposed Judicial Salary Increase Proposal.
80
Table Six
Projected Salary and Benefit Costs for the f\ssociation's Proposed Judicial Salary Increase Proposal
at 2013/14 139.0
Projected Additional and Benefit Costs for 2013/14 to 20.16/1'7 assuming the APJA's Proposed Base Salary for 2013/14 with annual increases thereafter based on the percentage change in Alberta AWE for the previous calendar year. This projection utilizes the actual Alberta AWE for 2013 and the Alberta Treasury Board and Finance Alberta AWE forecast for 2014 and 15. The Assumed Benefits , Contribution ft:ltc 2 7 .4S'X, made up of 2.05% for LTD I costs and 25.40% for pension costs (based on the I GoA's current sc·r vic c' co-: as a percentage of total pensionable earnings as per the December 31, 2011 i
actuarial valuation' 1,, tl"' tegis~E'TE'~d.a~~ IJilre~red ~E'n~~ ~~ans) . _js;,ary & _ _j Current Projected j' Projected 1:
1 Salary Benefits , Benefits ; Total Annual I ncrease Increase 1 I
Sa\ary Increase , Salary ; p FTE , p FTE 1! Increase 1 increase 1 I er er Per FTE
~1~}!IT;~:~:~ ~~~.~3 ~ ~~~ ~-~~;:;~i~ . Ou~~~: -1 ~~~~~-~- ~~::~-:i-~-.,+~~-J-,~-.. ,:~-~-~-J-1--~·--i~ • 2015/16 4 $263,73:1 3.6% $294,87' $31,141 $8,548 $39,689 $5,516.771
~~~~~~;-s26i~f3] ·· --~:~:~~T~=:=~:.~~s4~s~_:J··· ?-ii~_2•••·~ .• ~.=:Niii~~~ --s¥~ 229. As per Tab!< the projected additional salary and benefits costs attributable to the
Association'~; Propo:·,c·d Judicial Salary Increase Proposal would be $18,611,822.
Pension Benefits
230. The CiOA is agreement with vesting of the Pension Plans after two years of service
rather than five year( service ("the Two Year Vesting Pension Change").
~ostiQR..Q . .L ... UJ~; Two Year Vesting Pension Change
231. The parties agreed to the following summary in respect to the '{costing" of the Two
Year Vesting Pension Change. [See attached "Cost of Reducing the Vesting Period from 5 to 2
Years and an Exi3rnp!c·. TAB #14]
81
Ih~~---\.:..tl.QiCQ_gf eJternative Form for Pension Partner Pension Changq
232. /\s confirrncc! in exchange of correspondence between counsel, the parties have agreed,
in principle, to PIOfJClSC to the 2013 JCC that section 38 of the judicial Pension Plans' Regulation
(the ''Pension !;1t1on'') should be changed to provide that, when a judge dies prior to
termination frorn the, Pkms, with a surviving pension partner, that pension partner has the
ability to choos<· ;n; ;1ctuarially equivalent alternative form of pension from the choices listed in
section 29( 1) of n Regulation that would have been available to the judge if the deceased
judge had tcnninalcJl from the pension plans prior to death. To be clear, the choice of the
pension partner vJuu!ci override any alternate form selected by the judge prior to his death
(while still a partlc1parH), The parties have further agreed that a legislative review will be
conducted with Lc:gis!at1ve Counset in consultation with the Alberta Pensions Services
Corporation, with to the implementation of the proposal and to confirm their mutual
interpretation of ~)cellon 39. [See attached copies of the following correspondence at TAB #15;
Myers Weinberg letters of July 9, 2014 and July 30, 2014 and Alberta Justice letter of July 29,
2014,]
233. Subsequent to exchange of the foregoing correspondence, the Parties have only had
further general cornrnunications and discussions in respect of these matters. Counsel for the
Minister novJ that counsel for the Association will be presenting a specific proposal
in respect of thc·'>C ;--nzHters in its written submission. This would be the first time that such a
specific proposal Vv'd'> so presented. In light of that and the complexity of issues related to the
analysis of any such proposal the Minister would seek a reasonable opportunity to access
expertise as appropriate to consider, analyze and respond to any such proposal.
Vacation or Annual leave
234, Upon <:ippointn·Jcnt, all Alberta judges and masters receive 30 paid vacation days per
year, This level ::mnua! leave is sufficient and appropriate and warrants no change. None of
the criteria support an increase. Six weeks of annual leave:
82
adequately supports judicial independence;
tely reflects the unique nature of the judicial role and the complexity of
done by Alberta provincial judges and Masters by providing sufficient
urnc: them to rest and recharge;
• is consistent with the vacation entitlement most provincial judges across Canada
• is reasonable in light of the Alberta economy and the government's
position;
• vvhc:n considered as part of the overall judicial remuneration and benefits
pac i:> sufficient to attract and retain top candidates for judicial office (there
is nc; t:'vidence that increased vacation entitlement is required to maintain a
235. /\!though cha
entitlement and
employees, civil
bc·nch}.
were recently made to the rate at which civil servants earn vacation
rnaxirnum amount of vacation available to long-serving government
vacations are not proper comparators. Unlike judicial vacation
entitlement, civil ~>C'r'~JlCC' vacation entitlement is based on a completely different model that
requires the ernplovc·e to earn vacation entitlement based on years of service.
236. Aside fron·1 there being no need to increase judicial vacation time, doing so would
attract financial t.md logistical consequences. Courtrooms do not close when judges are away on
vacation. Rather/ (:lrr:angements must be made to have another judge, possibly a
.Judie idl Vacation f ntit'c n11 nt Across Canada [AFE #8]
83
237. The following cdlculations illustrate the minimum financial consequences of having
supernumeraryt j
judicial position
present per diern r~;tc:
or per diem masters cover 5 and 10 extra days of annual leave per
present complement of judges and n1asters (1385}. based on the
1 day supe~Tl umcrary judge I per diem master $1,271.00
$6,355.00
$880,167.50
1 ~vvcck supc·rr1urnerary judge I per diem master
1385 :.upernumerary judge I per diem master (1 extra vveek per judicial position per year)
2 X 138.5 (2 extra
238. lf salaries
supernumerary judge I per diem master per judicial position per year)
$1,760,335.00
so will the annual per diem. Related travel costs would increase as
well/ particularh; in a reds of the province with few local supernumerary judges.
239. Another '~J.J<lV tn operate vacant courtrooms caused by an increase in judicial vacation
entitlement would be to appoint new full-time judges or mastPrs. Assuming that five new full
time positions 'vvould bt: required, at the present salary level this would represent an additional
annual cost of
related pension
in salary alone, and far more than that when one includes the cost of
other benefits. A recommendation that government appoint more judges
to accomrnodate increased vacation entitlement is of course beyond this Commission's
jurisdiction.
240. Several J Compensation Commissions have rejected submissions calling for
increased vacatior1 r'nt!tlement:
• In 20CY/ Jnd 2010 in British Columbia~ judges sought an increase from 30 to 40
<Jnnualleave. Neither the 200'7 nor the 2010 Commission recommended
the recpJested increase. The 2010 Commission said it was ''satisfied that the
current period of annual leave of 30 days provided to Provincial Court Judges
84
Wr .. E fficient, taking into account the annual leave provisions made for their
• that judicial vacation ranged from 25- 40 days and that judges in eight
received 30 days, the 2008 New Brunswick Judicial Remuneration
Cornrnission stated that 30 days annual leave for judges was "comparable with
n1 other jurisdictions", and recommended no change to the present
nun1 30 days;s3
rhc' Newfoundland and Labrador Judicial Compensation Commission
COtifl
an increase in judicial vacation entitlement from 25 to 30 days,
1t the 9th province at that level. In so doing, it noted that the
mr.:nt's arguments did not provide a sufficient rationale to hold the annual
entitlement 'lbelow the widely accepted practice for judges across the
241. Challengmg and working conditions in the Northwest Territories have been cited
as one of the contributing to a higher vacation entitlement there. The government
submits that these' t dcUns are not applicable in Alberta.
242. Ontario
weeks annual
jurisdiction in which provincial court judges receive 40 days or 8
is an anomaly, and out of step with the generally accepted level of
annual leave c.-Jvai!ab!c to judges. None of the Alberta criteria support an increase to this or any
other level dbove 30
Final Heport of the 2U Ji H1 iti:;h Columbia Judges Compensation Cornmission at p 35 [TAB #17] q Report of the 2008 Nevv' Hrurhwick Judicial Remuneration Commission at p 25- 26 [TAB #18]
Newfoundland and tabr dciur Provincial Court Judges Salary and Benefits Tribunal Report September 2010 at p 41 - 44 [TAB #19]
85
Judicial Indemnity
243. The M r agrees in principle with the Association regarding developing and
implernenting a jud indemnity that will provide full indemnification for legal fees and other
costs incurred by J .::md masters for all proceedings which may affect their judicial function
or their capacity as judge or master. To that extent, the parties jointly submit that there
should be a judicialmdernnity.
244. Despite of a formal indemnity, in practice to date, government has been
indemnifying judge)(, rnasters for legal fees and other costs pursuant to the Alberta Risk
"" Management rn. That said, the Minister acknowledges the Association's request for
something tormi:d ;lf!d transparent, recognizes that judges and masters should be protected,
and supports the: ' efforts to develop suitable terms and conditions. To that end, the
parties have developed a document containing specific provisions, which remain subject to
Ministerial approv;;1 L
24:). Once the provisions are settled, the Minister is committed to taking the steps
necessary to imp!ernent the indemnity. For the Commission's information, this involves bringing
forward an iJmenclrrh1nt to the Indemnities Authorization Regulation (IAR).
246. Should till\ tornm!ssion believe that a recommendation regarding judicial indemnity is
warranted, the rv4inlster supports a recommendation that the government develop and
implement em tndernnitv that fully indemnifies judges and masters for legal fees and other costs
incurred for all proceedings which may affect their judicial function or capacity as a judge or
master.
247. If the AssocLHion and the Minister are unable to develop satisfactory terms and
conditions withir1 reasonable period of time, the Minister proposes that the parties be
permitted to send ::1dditional written submissions to the Commission.
86
Per Diem for Supernumerary Judges
248. The Minlsh-,r \Ubmits that no change is required to the present per diem for
supernumerary \!Vhich is set at a ratio of 1/207.5 of the salary of a full time puisne judge.
If the Commission recommends an increase in salary for full time judges, this will result in a
proportional incre;1 to the per diem. These arrangements fully respect the principles of
judicial independc?r!< .:1nd ensure that per diem rates will not erode over time.
249. The Minister understands that the Association seeks no change.
250. The PCA pr for the appointment of supernumerary judges on renewable 2 year
terms. A JUdge lT~<;iV elect to become a supernumerary judge if retired, or if the judge's term
of office pursud1lt tc, an appointment or re-appointment under ss. 9.22 or 9.23 has expired.%
251. Supernurner rv JUdges make themselves available to sit on a day-by-day basis when
required by thP Chic·f JtJdge. They are paid a per diem, and, if a scheduled sitting is cancelled
with less than 24 notice, they receive the full per diem, as provided in the Provincial
Court Judges and r~JLJ(;ters in Chambers Compensation Regulation (({Compensation Regulation")
[JBA #16)_ Pan time: rnasters arc entitled to the same remuneration as supernumerary c;<;
judges."
Professional Allowance
2.52. Since Apnl
Allowance \Nhich t
2000, all judges and Masters have received an annual Professional
m.Jy use for a variety of purposes. The Government accepted the 2000
Cornrnission's rccornrnPndation that judges receive an annual allowance of $2,500. The
amount increased the 2003 Commission to $3000 and following a joint recommendation
PCA at s 9.3\4) [JBA #13 P(A at s 9.3(1) [JBA #13 Compensotiun Cornpensatlon
ilt ') 2(4) [JBA #16] .1t s 9.1(3), (4} [JBA #16.1
87
to the 2009 Corn it was raised again to $3,750 for full-time judges and set at $1,875 for
part-time judges_
253, The Minister with the Association in submitting that both full-time and part-time
Judges and l\1aster(, be entitled to receive a full professional allowance of $3,750. The proposed
program consisting the amount of the allowance, list of eligible expenses and manner in
which the allowan lS to be administered/ is in the upper end of the range available, and
sufficient to ensure Fldicial independence.60
A!l of which ~'> respectfully submitted this 12th day of September, 2014.
Counsel for The Minister of Justice and Solicitor General in and for the Province of Alberta
i
.r~
J Kate ~rldgett
Kerry Whittaker
Eligible expense·~ and details are set out at s 4.1 of the Compensation Regulation [JBA #16]
88
Table 5 -The data in this Table is based on 138.5 FTE's. This data replaces the data in Table 5 on page 79. GOA Proposal
Year Current Salary Projected Increase
2013/14 $ 263,731 1.1o/o 2014/15 263,731 1.4% 2015/16 263,731 2.6o/o 2016/17 263,731 2.5°k
TOTAL
Projected Salary
$ 266,632 270,365 277,394 284,329
Salary Increase Per
FTE
$ 2,901 6,634
13,663 20,598
$ 43,796
Benefits Salary & Benefits Increase Per Increase Per
FTE FTE
$ 796 $ 3,697 $ 1,821 8,455 3,750 17,413 5,654 26,252
$ 12,022 $ 55,817
Total Annual Increase
512,035 1,171,018 2,411,700 3,635,902
$ 7,730,655
Table 6 -The data in this Table is based on 138.5 FTE's. This data replaces the data in Table 6 on page 81. APJA
Projected Projected Salary Benefits Salary & Benefits Year Current Salary Increase Per Increase Per Increase Per Increase Salary
FTE FTE FTE 2013/14 . $ 263,731 4.273% $ 275,000 $ 11,269 $ 3,093 $ 14,362 2014/15 263,731 3.5% 284,625 20,894 5,735 26,629 2015/16 263,731 3.6% 294,872 31 '141 8,548 39,689 2016/17 263,731 3.6% 305,487 41,756 11,462 53,218
TOTAL $ 105,060 $ 28,839 $ 133,898
Total Annual Increase
$ 1,989,137 3,688,117 5,496,927 7,370,693
$ 18,544,874