Schedule C - Order in Council 1273/2018

Schedule C

In the matter of the courts of justice act and

In the matter of an inquiry by the eighth provincial judges remuneration commission (2010)

Between:

Her majesty the queen in right of the province of Ontario (“the Government”)

And

The Ontario conference of judges (“the Judges”)

Appearances

A hearing in this matter was held in Toronto on October 30, 2013.

Introduction

This is the report filed of the Eighth Provincial Judges Remuneration Commission. It is being filed with the Chair of Management Board of Cabinet in accordance with section 51.13 of the Courts of Justice Act, R.S.O. 1990, c. 43 as amended and section 16 of Appendix A of Framework Agreement (“the Framework Agreement”) set out as the schedule to that Act. This report contains the recommendations of the Commission contemplated by section 15 of the Framework Agreement for the Ontario Court of Justice for the period April 1, 2010 to March 31, 2014

The purpose of the Framework Agreement is set out in section 2:

The purpose of this agreement is to establish a framework for the regulation of certain aspects of the relationship between the executive branch of government and the Judges, including a binding process for the determination of Judges’ compensation. It is intended that both the process of decision-making and the decision made by the Commission shall contribute to securing and maintaining the independence of Provincial Judges. Further, the agreement is intended to promote co-operation between the executive branch of government and the judiciary and the efforts of both to develop a justice system which is both efficient and effective, while ensuring the dispensation of independent and impartial justice.

The Framework Agreement continues the Provincial Judges Remuneration Commission on a quadrennial basis. The mandate of, and criteria to be used by, the Commission in recommending appropriate salary levels, benefits, allowances, and pension are set out in sections 13 and 25 of the Framework Agreement. Further to sections 27 and 30 of the Framework Agreement, the Commission’s recommendations with respect to salary, benefits, and allowances are binding on the Government. Recommendations with respect to pension are advisory only.

Governing criteria are set out in section 25 of the Framework Agreement. Without any doubt, the Commission has a critical constitutional role in safeguarding the independence of the judiciary. Maintaining judicial independence is the overriding factor in the consideration of judicial compensation. That is why an independent, effective, and objective judicial compensation commission is interposed between the Judges and the Government. The public interest in an independent judiciary is paramount. It should be noted that no Judges participated in the discussions with the Government. Stated somewhat differently, while substantive discussions on a number of complex issues did take place, no Judges participated in those discussions and nothing occurred that would, in any way, compromise judicial independence.

Under section 18 of the Framework Agreement, “the parties agree that the representatives of the Judges and the Lieutenant Governor in Council may confer prior to, during or following the conduct of an inquiry and may file such agreements with the Commission as they may be advised.” As already noted, the representatives of the Government and the Judges did confer. They have agreed on certain recommendations to be made by the Commission provided that the Commission is in agreement with them. Those recommendations proceeded to a hearing held in Toronto on October 30, 2013. It should be noted that the recommendations were made without prejudice to the Judges, before future Commissions, pursuing any matter within the jurisdiction of the Commission.

After having the opportunity to consider carefully the agreed-upon recommendations of the Government and the Judges, and bearing in mind the absolute necessity of arriving at an objective and fair set of recommendations dictated by the overriding public interest in ensuring an independent judiciary, the Commission fully and unequivocally endorses the proposed recommendations of the Government and the Judges and recommends the following:

1. Salary:

   -	Puisne Justice	RSJ	Associate Chief Justice	Chief Justice
   April 1, 2010	252,274	271,400	278,900	283,900
   April 1, 2011	262,113	281,100	288,600	293,600
   April 1, 2012	267,355	288,100	295,600	300,600
   April 1, 2013	274,574	295,500	303,000	308,000

   These are the salaries as increased automatically by the IAI Canada as provided by the Courts of Justice Act. We understand that these salaries have already been implemented.

2. Any improvements to the Ontario Government mileage reimbursement policy will be applied to Judges and implemented effective the date that policy is changed during the period up to March 31, 2014.
3. Representation Costs of the OCJ for the 8th Commission to be paid as follows within 30 days of the issuance of the recommendations of the Commission:
   1. Disbursements (including actuarial fees and disbursements, other expert advice, and including lawyers disbursements and including HST on all the fees and disbursements) $85,401.32;
   2. Legal fees: $405,000.00 plus HST of 13%.
4. As soon as practicable but not later than March 31, 2014, the Government will provide all active and retired judges and their eligible dependents and survivors with a Drug Card, as part of the supplementary health care plan, which shall provide for direct payment of drug costs at the point of purchase, subject to the limitations set out below. The Drug Card program shall include the following elements:
   1. Judges shall be obliged to “positively enroll” themselves and all their eligible dependents in the health, vision care and dental plans before coverage shall be provided to the respective judges, and eligible dependents;
   2. The Government and the carrier shall have the right to ensure that the benefits of the judge and eligible dependents under the Drug Card program shall be coordinated with any other drug plan under which the judge and the eligible dependents may be entitled to coverage;
   3. It is understood that the provision of this Drug Card does not change, alter or amend the drugs covered by the benefit plan, or any other benefit or entitlement, and is intended solely to provide for direct payment of the current drug benefits;
   4. The Government will provide a copy of the implementation plan for the drug card program to the Conference prior to the implementation date.
5. Effective as soon as practicable but not later than March 31, 2014, the Government will provide for a mandatory catastrophic drug plan. Judges shall pay 100% of the premium for this coverage. The plan will provide for 100% reimbursement of the cost of any eligible drugs once overall submitted drug expenses exceed $10,000 in any calendar year. The cost of the monthly premium will be equivalent to the current ALOC/OCAA premiums, which are subject to change annually. The current monthly premiums, including retail sales tax (RST) are $0.87 single and 1.77 family; annual premiums are $10.44 single and $21.24 family.
6. Effective as soon as practicable but not later than March 31, 2014, the Government shall pay 100% of the LTIP premiums.
7. Effective as soon as practicable but not later than March 31, 2014, the cost of basic life insurance premiums shall be cost shared with judges. The judge will pay the same dollar amount of premiums for life insurance as the dollar amount now paid by individual judges on account of LTIP premiums as of September 30, 2013; the Government will pay the balance of the cost of basic life insurance premiums.
8. Effective immediately, there shall be coverage for electrically operated hospital beds at home (Current: coverage for manually operated beds).
9. Effective January 1, 2014, the Government will cover the cost of one routine eye exam every 24 months. This coverage is in addition to the $450 allotted for vision care coverage.
10. Effective immediately, the spouses and dependents of a deceased judge who has not reached the basic service requirement under the pension plan will be entitled to health and dental coverage for 12 months after the date of the death.
11. Mediation/Arbitration of Benefit Entitlements:
    1. Disputes regarding entitlement to judicial benefits under the regulations, Order-in-Council and/or any insurance plan will first be raised by the judge with the insurance carrier. Any dispute which may arise concerning a complaint by a judge that he or she or a spouse/dependent has not received the entitlement to benefits under the regulations, Order-in- Council and/or insured benefit plans (including LTIP) is subject to the mediation/arbitration procedures hereunder.
    2. Requests for special or compassionate consideration under any of the insured benefit plans are specifically limited to the Insurance Appeals Committee process, which will include an opportunity for the judge to make a written submission to the Committee. Requests for special or compassionate consideration are not arbitrable.
    3. The Judge shall complete a “Release of Information” form before the matter can proceed under this clause. Prior to proceeding to mediation/arbitration in respect of an insured benefits claim dispute, the Judge or his/her designate must make a written submission to the Insurance Appeals Committee via the Director of the Centre for Employee Relations, Employee Relations Division, Ministry of Government Services, OPS. A copy of the written submission must also be provided at the same time to the designated representative of the Conference, who shall consult with the individual judge. If required, prior to reaching a decision, the Appeals Committee shall also meet with a representative(s) of the Conference, and with the individual judge, for the purpose of trying to resolve the matter. This meeting shall take place in person or by conference call. If the issue is not resolved at this stage, or, in any event within 6 weeks of the written submission to the Insurance Appeals Committee, the complaint can proceed to mediation/arbitration, except in the case of requests for special or compassionate consideration.
    4. If either the judge or the Government requests, the matter may be referred to mediation/arbitration with Martin Teplitsky as the mediator/arbitrator. If Martin Teplitsky is unavailable for any reason, William Kaplan will be the mediator/arbitrator.
    5. The mediation/arbitration shall be conducted expeditiously and include written submissions of the parties wherever it is practical to do so in the opinion of the mediator/arbitrator but the mediator/arbitrator shall hold a hearing where one of the parties so requests. The Conference shall have standing in any proceeding, and shall be entitled to participate fully as a party.
    6. The mediator/arbitrator shall be the master of his or her own procedures and shall determine the manner in which the dispute shall be resolved having regard to the nature of the dispute, the need for a fair process of dispute resolution, and the desirability of ensuring the resolution of the dispute in an expeditious and informal manner. This may include limiting the nature and extent of the evidence, determining the manner in which the complaint shall be resolved, and imposing such other conditions as he or she considers appropriate, but shall provide an oral hearing where requested.
    7. The arbitrator shall have jurisdiction to consider any matter properly submitted to him or her under the terms of the regulation, Order-in- Council or insured plan. The arbitrator shall have the power to interpret and apply the Human Rights Code.
    8. The arbitrator shall have no jurisdiction to alter, modify, amend or make any decision inconsistent with the terms of the regulation, Order-in- Council or insured plan.
    9. The arbitrator or mediator/arbitrator shall have all the powers of an arbitrator under the Arbitrations Act, 1991 except as specifically altered hereunder.
    10. The parties agree to contract out of the following provisions of the Arbitrations Act, 1991 and agree the following provisions do not apply to arbitration under this section:
        1. power to appoint receivers (s.8(1));
        2. power of the Court to appoint an arbitrator (s. 10);
        3. the ability of an arbitrator to appoint an expert at the expense of the parties (s. 28);
        4. the ability to award costs against a party (s. 54, 56).
    11. Should the Arbitrations Act, 1991 be amended the parties agree that no new or amended provisions shall apply to arbitration hereunder unless the parties agree or unless any amended or new provisions of the Arbitrations Act, 1991 cannot by law be subject to an agreement to exclude their application.
    12. The arbitrator shall provide a decision in respect of a matter within thirty (30) business days of the completion of the submissions or hearing before him or her.
    13. The fees and expenses of the arbitrator shall be borne equally by the government and by the judge.
    14. These provisions constitute an arbitration agreement for the purposes of the Arbitration Act, 1991. The judges and the government agree that they are bound by the decisions of the mediator/arbitrator and the government agrees it will apply the decisions of the mediator/arbitrator to the Justices of the Ontario Court of Justice.
    15. Disputes affecting more than one judge may be consolidated provided the disputes address the same issues.
12. It is recommended that the pension plan be amended to provide for the division of pension assets of individual judges in the event of marital breakdown.   Pending the amendment to the pension plan, we understand that the plan will consent to a Court order regarding the division of assets in that specific case.
13. New salary and pension provisions respecting Administrative Judges:
    1. The salary differential between a puisne judge and a Regional Senior Judge shall be a fixed dollar amount instead of a fixed percentage of the salary of a puisne judge.
    2. The fixed dollar amount shall be $7,500 per annum.
    3. In the event that a quadrennial commission determines the salary of a Regional Senior Judge shall not exceed the salary of a federally appointed puisne or Regional Senior Judge, then it is agreed that the $7,500 differential shall not operate to prejudice the Conference objective of achieving parity for all judges.
    4. In no circumstances shall the salary of an Associate Chief Justice be less than $7,500 above the salary of a Regional Senior Judge.
    5. In no circumstances shall the salary of the Chief Justice be less than $12,500 above the salary of a Regional Senior Judge.
    6. The following shall apply with respect to section 42(10) of the Courts of Justice Act:
       1. A Regional Senior Judge, Associate Chief Judge or Chief Judge shall receive the applicable increased salary only during his or her term in office, plus a further 3 months immediately following the end of the term in office; and
       2. The phrase "the salary of a judge of the same judicial rank" in section 15 and section 79 of Ontario Regulation 67/92 and/or its successor regulation and/or Order-in-Council as appropriate shall be interpreted as the salary of a puisne judge.
    7. All pension and survivor benefits and the terms under which those benefits will be provided shall remain unchanged except to the extent necessary to implement these changes or any changes agreed to by the parties with respect to the division of assets in the event of marital breakdown of an individual judge.
    8. The representational allowance for Regional Senior Judges, Associate Chief Judges and Chief Judges shall remain unchanged.
    9. Notwithstanding any of the other provisions of paragraph 17, the new and amended terms and conditions for administrative judges do not apply to the judges listed in Schedule A.
    10. The status quo as set out in Schedule B shall continue for the individuals listed in Schedule A for the term of the 8th Provincial Judicial Remuneration Commission and beyond the term of the 8th Provincial Judicial Remuneration Commission until the individuals listed in Schedule A are deceased.

Schedule A

Any judge appointed as Senior Judge, Co-ordinator of Justices of the Peace, Regional Senior Judge, Associate Chief Judge or Chief Judge prior to the report of the 8th Provincial Judicial Remuneration Commission being tabled who is not already listed in Schedule A

Any person who is entitled to a survivor allowance in relation to a judge listed in Schedule A.

Schedule B

For all persons included in Schedule A, the status quo shall continue and, without limiting the generality of the foregoing, includes the following:

1. Salary for a Regional Senior Judge shall be calculated as 1.0965 times the salary of a provincially appointed puisne judge capped by the salary of a federally appointed puisne judge.
2. Salary for an Associate Chief Judge shall be calculated as $7,500 above the salary of a Regional Senior Judge.
3. Salary for the Chief Judge shall be calculated as $5,000 above the salary of an Associate Chief Judge.
4. Regional Senior Judges, Associate Chief Judges and Chief Judges at the end of their term of office shall keep the higher salary pursuant to s. 42(10) of the Courts of Justice Act. That salary is calculated annually based on the current salary of a puisne judge, which includes IAI (Canada) annual increases, plus the 9.65% differential, capped by the salary of a federally appointed puisne judge. Former Associate Chief Judges and Chief Judges also receive the $7,500 and $12,500 differential as applicable.
5. The pension under the old pension plan (i.e. the pension plan for individuals who retired prior to the report of the 6th and 7th Provincial Judicial Remuneration Commissions or who elected to be grandfathered under that plan) shall be calculated each year on the basis of paragraphs i, ii or iii of Schedule B above as applicable.^{footnote 1[1]}
6. The pension under the new pension plan (i.e. the current pension plan in effect since the tabling of the 6th and 7th Provincial Judicial Remuneration Commission Report) shall be calculated initially on the basis of paragraphs i, ii or iii of Schedule B above as applicable^{footnote 2[2]}
7. Survivor allowances shall be calculated upon the pensions based upon paragraphs v or vi of Schedule B above.
8. "Salary of a judge of the same judicial rank" in sections 15 (cap) and 79 (daily rate) of Ontario Regulation 67/92 and/or its successor regulation and/or Order-in-Council as appropriate shall be interpreted to mean or amended such that the intention is clear that the salary that the judge would have continued to receive pursuant to section 42(10) of the Courts of Justice Act as set out in paragraph iv of Schedule B if the judge did not retire.

1. Clarity Notes
   1. No aspect of the compensation of any judge who held the position of Senior Judge, Co-ordinator of Justices of the Peace, Regional Senior Judge, Associate Chief Judge or Chief Judge prior to the report of the 8th Provincial Judicial Remuneration Commission being tabled, is to be negatively impacted as a result of this recommendation. Compensation includes but is not limited to salary, benefits and pension and negatively impacted does not include any tax implications resulting from changes in Compensation.
   2. Schedule B applies to all individuals included in Schedule A (whether by name or by virtue of the basket clause) regardless of the position they hold or have held. In other words, Schedule B continues to apply to individuals included in Schedule A even if they attain higher administrative positions after the report of the 8th Provincial Judicial Remuneration Commission is tabled. Clause vi of paragraph 17 shall not be interpreted so as to deprive any judge named on Schedule A of the salary and pension currently available to an ACJ or CJ. The following are examples:
      1. a RSJ or former RSJ included in Schedule A, who is appointed as ACJ after the issuance of the recommendations of this Commission, would receive the salary they were receiving as an RSJ or former RSJ, (up to 9.65% higher than a puisne judge), plus $7,500, during their term as ACJ. After the end of their term as ACJ, their salary would remain the ACJ salary, which includes IAI (Canada) each year as part of the base salary calculation, until the salary of a provincially appointed puisne judge catches up.
      2. an ACJ or former ACJ listed in Schedule A, who is appointed CJ after the issuance of the recommendations of this Commission would receive the salary that they were receiving as an ACJ or former ACJ plus a differential of $5000 over and above the salary that they received as ACJ or former ACJ. At the conclusion of their term as CJ, they would continue to receive the CJ salary, which includes IAI (Canada) each year as part of the base salary calculation, until the salary of a provincially appointed puisne judge catches up.
   3. For retirees covered by paragraph v of Schedule B, including those who retired before the 6th/7th Commission report was tabled and those who elected to be covered under the “old” pension plan, the Pension Board will calculate their pension based on what a former administrative judge would have earned applying the 9.65 % differential to the salary of current puisne judges, capped by the salary of a federally appointed puisne judge, and then adding the Associate Chief Judge or Chief Judge differential, if applicable.
   4. For retirees covered by paragraph vi of Schedule B, those who retired after the tabling of the 6th/7th Commission Report and who did not elect the “old” pension plan, the Pension Board will perform an initial calculation based upon the salary of a puisne judge on the day of retirement, plus the 9.65% differential, capped by the salary of a federally appointed puisne judge, adding the Associate Chief Judge or Chief Judge differential, if applicable, and then multiplying by the individual judge’s pension percentage.
   5. Schedule A contains two additional “basket” clauses, which follow the listing of the specific names. There may be former Regional Senior Judges and/or Senior Judges who are not listed by name in Schedule A. As well, individuals appointed to administrative positions between the signing of the joint recommendation and the tabling of the report for this commission, and potentially their survivors, would fall into Schedule A.
2. Statutory Amendments
   1. We recommend that the Courts of Justice Act be amended along the following lines:
      • 42 (10) A Chief Justice, associate chief justice or regional senior judge appointed prior to the tabling of the 8th Provincial Judicial Remuneration Commission Report and whose term expires continues to be a provincial judge and is entitled to receive the greater of the current annual salary of a provincial judge and the annual salary he or she received immediately before the expiry.
      • 42 (10.1) A Chief Justice, associate chief justice or regional senior judge appointed after the tabling of the 8th Provincial Judicial Remuneration Commission Report and whose term expires continues to be a provincial judge and is entitled to receive the greater of the current annual salary of a provincial judge and the annual salary he or she received immediately before the expiry for a further 3 months immediately following the end of the term in office, after which time he or she is entitled to receive the annual salary of a provincial judge.
   2. It is recommended that since the origins of this change arose from agreement between the Conference and the Chief Justice, any proposed amendment to the regulation arising out of the joint recommendation regarding administrative judges must be done with the consultation of the Conference of Judges and the Chief Justice to ensure that it accurately reflects what has been agreed to in the recommendations and between the parties. We understand that the representatives of the Government and the Judges will attempt to reach an agreement as to any proposed amendments.
   3. As well, given that we are recommending that individuals covered by Schedule A, above, are not to be adversely affected in any way, we recommend that the following amendments to the pension plan and O. Reg. 67/92 and/or its successor regulation and/or Order-in-Council as appropriate are also advisable.
   4. The pension plan and s. 4(2) of O. Reg 67/92 provides, in part, that the pension of a judge who has held an administrative position is to be calculated based on the salaries of the current Chief Justice, Associate Chief Justice and regional senior judge (see subsections 1, 1.1, and 2 respectively). Thus, for judges appointed to administrative positions after the tabling of the Commission’s report, their pension will be calculated on the basis of the new lower administrative salaries (i.e. for Regional Senior Judges, this would be the salary of a puisne judge plus $7500 capped at the salary of a puisne judge of the Superior Court).
   5. However, for individuals covered by Schedule A and B, it is advisable to amend the pension plan and s. 4(2) of O. Reg. 67/92 and/or its successor regulation and/or Order-in-Council as appropriate to provide that their pension would be calculated on the basis of the current formula for administrative judge salaries, rather than on the basis of the new lower administrative salaries. For Regional Senior Judges, the salary to be used for the purpose of the pension calculation is the salary of a puisne judge plus 9.65% capped at the salary of a puisne judge of the Superior Court. For the Associate Chief Justice and the Chief Justice, an additional $7500 and $12,500 differential needs to be included in the calculation.
   6. Our recommendations also have implications for the phrase “salary of a judge of the same judicial rank” contained in s. 15 and s. 79 of O. Reg. 67/92 and/or its successor regulation and/or Order-in-Council as appropriate. Section 15 refers to the cap on pension amounts for part-time judges, whereas s. 79 refers to the daily rate to be paid to part-time judges. Specifically, for judges who have held administrative positions prior to the tabling of the 8th Commission’s Report, the intention is that the phrase “the salary of a judge of the same judicial rank” is to be interpreted as the salary that the judge would have continued to receive pursuant to the amended section 42(10) of the Courts of Justice Act, as set out above, whereas for judges appointed to administrative positions after the tabling of the 8th Commission’s Report, the intention is that the phrase “the salary of a judge of the same judicial rank” is to be interpreted as the salary of a puisne judge. A regulatory amendment that gives effect to that intention should be made. We recommend that that the amendments be done with the consultation of the Conference of Judges and the Chief Justice to ensure that it accurately reflects what has been agreed to by the representatives of the Government and the Judges and what we have recommended in this report.

Conclusion

In conclusion, the Commission hereby requests the adoption of its recommendations.

Dated at Toronto this 12th day of November 2013.

“William Kaplan”
William Kaplan, Chair

“Roy Filion”
Roy Filion, Nominee for the Government

“Chris Paliare”
Chris Paliare, Nominee for the Judges