LEGISLATIVE ASSEMBLY OF MANITOBA
THE STANDING COMMITTEE ON LEGISLATIVE AFFAIRS
Tuesday, October 6, 2015
TIME – 2 p.m.
LOCATION – Winnipeg, Manitoba
CHAIRPERSON – Ms. Nancy Allan (St. Vital)
VICE-CHAIRPERSON – Mr. Ted Marcelino (Tyndall Park)
ATTENDANCE – 9 QUORUM – 6
Members of the Committee present:
Hon. Messrs. Chomiak, Mackintosh
Ms. Allan, Messrs. Briese, Goertzen, Helwer, Marcelino, Swan, Wiebe
APPEARING:
Hon. Jon Gerrard, MLA for River Heights
MATTERS UNDER CONSIDERATION:
Report and Recommendations of the Judicial Compensation Committee, dated November 20, 2014
Process for hiring a new Conflict of Interest Commissioner, Lobbyist Registrar and Information and Privacy Adjudicator
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Madam Chairperson: Good afternoon. Will the Standing Committee on Legislative Affairs please come to order.
This meeting has been called to consider the following items: the Report and Recommendations of the Judicial Compensation Committee, dated November the 20th, 2014, and the Process for hiring a new Conflict of Interest Commissioner, Information and Privacy Adjudicator and Lobbyist Registrar.
Are there any suggestions as to how long we should sit this afternoon?
Mr. Kelvin Goertzen (Steinbach): Madam Chairperson, until the work of this committee is concluded.
Madam Chairperson: Agreed? [Agreed]
Thank you.
In what order does the committee wish to consider these items?
Mr. Goertzen: Madam Chairperson, I understand we are going to deal with the Report of Judicial Compensation Committee first and then move to the subcommittee on the hiring of the conflict of interest officer.
An Honourable Member: Agreed.
Madam Chairperson: I see agreement. Thank you.
We will now deal with the Report and Recommendations of the Judicial Compensation Committee.
I would like to remind the members that when this matter was last considered in June the committee heard a presentation from Susan Dawes of the Provincial Judges Association. An opening statement was provided by the Minister of Justice and Attorney General (Mr. Mackintosh), and Mr. Goertzen deferred his opening statement to a future meeting.
I would also like to remind members that prior to concluding consideration of this report pursuant to the provisions of section 11.1(27) of The Provincial Court Act a motion will be required in order to adopt or reject some or all of the recommendations of the JCC report.
Now does the official opposition critic wish to make any opening remark?
Mr. Goertzen: Madam Chairperson, just briefly a couple of comments.
Certainly, we know that this process is governed largely under legislation and precedent law that's been set by the courts in terms of the independence of judges from the political process, and there's good reason for that independence and that separation. So there's, obviously, restrictions that this committee is under in regards to those.
Just as a follow-up to comments that I made at the last committee. I did make some suggestions and raised some concerns regarding the annual report from the Provincial Court being in arrears, I guess, to use a term, and I think that one of the annual reports has since been provided. I stand to be corrected, but I believe we are still one behind and–which means we're, ironically, in violation of the law. I raise that as a concern. I still think it's a concern. I asked the able presenter representing the judge's last committee about the need to have that information to make these sort of decisions, and I still think that that's true and relevant today. So I leave it on the record again that I'm concerned about the lag in getting these Provincial Court annual reports. I think they're helpful. I think they have valuable information and I don't think it reflects well that the law isn't being followed in terms of their presentation.
Madam Chairperson: Thank you, Mr. Goertzen.
Are there questions or comments on the report?
Does the honourable minister have a motion?
Hon. Gord Mackintosh (Minister of Justice and Attorney General): I just–I have a few remarks.
Madam Chairperson: Excuse me. Does the honourable minister have a motion?
Mr. Mackintosh: I have some remarks and then I have a motion for the committee.
The order-in-council dated March 19th, 2014, appointed Michael Werier as the independent chair of the 9th Judicial Compensation Committee. The JCC received various written submissions and had oral hearings July 15, 16 and 17, and issued its report in November of 2014. There was a clarification requested and a revised report was issued on December 8th, 2014.
The rules and procedures are, of course, set out in The Provincial Court Act. This is a process designed to ensure that judicial independence is protected, that compensation must be at a level that protects judicial independence. The Supreme Court of Canada has stated that the provincial government cannot negotiate directly with judges and an independent body must be set up to make recommendations to government and to the Legislature in effect.
The act sets out the material to be considered and a process for the Legislature to follow. When the act is not binding on government with one exception the courts have set precedents on when a government can deviate from the findings.
There have been numerous cases both in lower courts and the Supreme Court of the criteria under which a government can overrule the recommendations. I won't set out the principles here. If members want to have a discussion around those we can reiterate them.
Based on the principles that have been laid down, while the monetary position on wages may be higher than the government's general mandate, there is little basis, according to all the advice we could rally, to justify overturning their decision and even less chance of being successful if challenged in court.
The same can be said for the other cost items listed in the motion that I will be introducing, but there are two areas where we recommend rejection, and the first is with regard to pension contributions and the second is with regard to life insurance.
Therefore, I will move
THAT the Standing Committee on Legislative Affairs:
accept the recommendations in schedule A–as to be distributed–
reject the recommendations in schedule B for the reasons set out in that schedule and,
recommend the same to the Legislative Assembly.
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SCHEDULE A
Recommendations of the Judicial Compensation Committee accepted by the Standing Committee on Legislative Affairs
1. That the annual salaries for puisne judges shall be:
(i) April 1, 2014 to March 31, 2015–two thousand three–$239,000;
(ii) April 1, 2015 to March 31, 2016–cumulative adjustment equal to the annual percentage change in the average weekly earnings for Manitoba on April 1, 2015;
(iii) April 1, 2016 to March 31, 2017–cumulative adjustment equal to the annual percentage change in the average weekly earnings for Manitoba on April 1, 2016.
The percentage change in the average weekly earnings should be calculated based on the percentage change over the preceding calendar year.
The recommendation should apply to all who were judges as of April 1, 2014, including those who retire or otherwise leave the Bench prior to implementation.
Is there leave of the committee to–should I read it in? [interjection] I have to read it in?
That the salary differentials for the Chief Judge and Associate Chief Judge remain in place as of April 1, 2014. This will mean a salary of $258,120 for the Chief Judge and $250,950 for the associate chief judges.
The–this recommendation shall apply to all judges who were either a Chief Judge or an Associate Chief Judge as of April 1, 2014, including those who retire or otherwise leave the Bench prior to implementation.
4. Prejudgment interest shall be payable from April 1, 2014 to the date of–to the date that the salary and per diem recommendations are implemented (whether by vote of the Legislature or by virtue of subsection 11.1(29) of the Act), and post-judgment interest shall be payable from that date to the date that judges are paid the retroactive adjustments.
5. That as it relates to senior judges:
· the per diem rate for senior judges shall be set at 1/218th of the annual salary of a full-time judge;
· Interest shall be paid on the retroactive per diem rate;
· Each senior judge shall be offered an educational allowance of $3,000 and a professional allowance of $2,000;
· A fund shall be set up for each allowance based on the number of judges (including a pro rata share for senior judges who come into the program partway through a fiscal year). The fund shall be distributed by the Chief Judge based on the needs of the judges in question; and
· These recommendations shall be effective April 1, 2014, and shall apply to all who were judges as of April 1, 2014, including those who retire or otherwise leave the Bench prior to implementation.
6. As it relates to the Limited Pooling Of Education Resources:
· Effective April 1, 2014, each judge's annual education allowance should remain at the current level of $3,000 per annum per judge;
· The combined amount of the education allowances ($3,000 per judge x 41 judges) shall be provided to the court in a fund to be administered by the Chief Judge in accordance with the principles set out below;
· Individual judges shall have access to their educational allowance in order to fund their attendance at conferences and seminars, and/or for other educational purposes, as approved by the Chief Judge in accordance with court policy. With the consent of each individual judge, unused portions of each judge's education allowance may be used to the benefit of the court as a whole. All uses of the allowances are subject to approval by the Chief Judge in accordance with court policy.
· This recommendation shall be effective April 1, 2014, and shall apply to all who were judges as of April 1, 2014, including those who retire or otherwise leave the Bench prior to implementation.
7. That the Province pay 75 per cent of the Judges' legal costs and fees for the Judicial Compensation Committee process, up to a maximum aggregate payment by the Province of $45,000.
8. That the Province pay 100 per cent of judges' disbursement costs and fees for the Judicial Compensation Committee process, up to a maximum aggregate payment by the Province of $22,500.
9. That unless otherwise stated, all changes shall be effective on the date of approval by the Legislative Assembly of Manitoba.
10. In these recommendations, "date of approval by the Legislative Assembly" means
(a) the date that the vote of concurrence referred to in subsection 11.1(28) of The Provincial Court Act takes place with respect to these recommendations; or
(b) if the recommendations shall be implemented–or must be implemented because of subsection 11.1(29) of The Provincial Court Act, the first day after the end of the 21-day period referred to in that subsection.
SCHEDULE B
Recommendations of the Judicial Compensation Committee rejected by the Standing Committee on Legislative Affairs
1. That the contribution rates to be paid by judges into the Civil Service Superannuation Fund are those currently set out in the Employee Contribution Rates Regulation, 178/2011. To the extent the Regulation is amended in the future, the recommendation of a JCC must first be sought.
2. That at the time of their appointment, all judges should be enrolled for life insurance coverage worth five times their salary (up to the maximum policy), unless they elect a lower level of coverage at that time, or following their appointment.
Reasons
In considering the Report and Recommendations of the Judicial Compensation Committee, the standing committee has examined each of the recommendations individually and collectively. The reasons for rejecting these recommendations are as follows:
Recommendation 1:
· The standing committee does not accept the view of the Judicial Compensation Committee that changes to pension contributions require a Judicial Compensation Committee recommendation or that it is a constitutional requirement.
· While the standing committee fully respects and understands that the Judicial Compensation Committee process is required by the Constitution in order to ensure the independence of the judiciary, the standing committee has considered this very carefully and disagrees that the manner in which pension contributions are currently set out in employee–in the Employee Contribution Rates and Regulation, 178/2011 are a threat to such independence.
· The standing committee notes that any changes to contribution rates for all members of the Civil Service Superannuation Fund are made through a joint stakeholders committee and apply equally to all members of the fund plan.
· The standing committee understands and accepts that any changes in pension contributions have an impact on the remuneration of judges, but these contemplated changes which were the subject of the recommendation, apply to all members of the fund plan and are similar to the changes that are made from time to time to other benefit plans, such as Blue Cross, which have never required a Judicial Compensation Committee recommendation prior to implementation.
· Moreover, the standing committee is concerned that if changes to the contribution rates to be paid by judges into the fund required a recommendation from a Judicial Compensation Committee, then judges would be treated differently than other members of the fund plan. This, in and of itself, may well impact judicial independence as the perception may be that judges are being treated differently than other members of the fund plan.
· The standing committee is of the view that as members of multi-unit pension plan, judges ought not to be treated differently than any other members of that plan. The Civil Service Superannuation Fund covers nearly 34,000 active employees and over 53,000 total members. If additional contributions are necessary to ensure the stability of the plan, all stakeholders are consulted, including the Judges. Giving any group a veto power could jeopardize the plan.
· The standing committee notes that the Judicial Compensation Committee has recognized that the timing of the Judicial Compensation Committee Process may have an impact on how the recommendation would be implemented. However, the standing committee disagrees that adjustments can be made in the ordinary course, as suggested, given the statutory requirements for any change.
· In the event any issues arise as they relate to the contribution rates paid by judges into the fund plan, such issues could be addressed by a subsequent Judicial Compensation Committee to ensure the judicial independence of the judiciary is always maintained.
· It should be noted that the judges also have a supplementary plan where it is reasonable for future changes to be subject to the recommendations of a subsequent Judicial Compensation Committee.
· Accordingly, after careful consideration of the recommendations made in this regard and for the reasons set out above, the standing committee rejects the Judicial Compensation Committee's recommendations as they relate to pension contributions.
Recommendation 2:
· The standing committee does not accept that special provisions ought to or even can be established for judges, as recommended by the Judicial Compensation Committee.
· The standing committee understands the principle that all judges be treated in the same way at the time of appointment, but does not accept that the proposed recommendation achieves that result. While it would provide all judges with the same amount of insurance coverage, it would treat judges differently than all other members of the life insurance plan.
· The standing committee previously accepted the recommendation of a prior Judicial Compensation Committee to have the judges participate in the same insurance plan and coverage as that which the government makes available to public servants, including the same Dependents' Life Insurance Policy. Moreover, the standing committee accepted that same Judicial Compensation Committee's recommendation that judges pay the same premiums for life insurance as civil servants.
· Consistent with those recommendations, the standing committee is of the view that judges ought to not be treated differently from those who are members of that plan.
· This evidence of insurability is a current requirement for all plan members and is designed to prevent "adverse selection" in an insurance plan. It's a principle of virtually all life insurance plans.
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· The standing committee has considered the matter very carefully and the change may not even be possible with a third party insurer, it is a matter of equities and fairness. If it is possible it is not clear that it would be an insubstantial cost. The standing committee does not accept that it is simply a housekeeping matter, for the reasons outlined above.
· The only feasible compromise solution would be for the government to arrange for a separate insurance plan for judges only with the likelihood of significantly higher premiums for judges and government. In effect reversing the decision of the previous Judicial Compensation Committee's recommendations.
· Accordingly, the standing committee rejects the recommendation that at the time of their appointment, all judges should be enrolled for life insurance coverage worth five times their salary (up to the maximum policy), unless they elect a lower level of coverage at that time, or following their appointment.
Madam Chairperson: It has been moved by the Honourable Minister Mackintosh
THAT the Standing Committee on Legislative Affairs–
An Honourable Member: We'd like to hear this–no, dispense.
Madam Chairperson: Thank you.
The motion as printed is in order.
The floor is open for questions.
Is the–sorry, Mr. Goertzen.
Mr. Goertzen: More of a comment than a question.
And, you know, we go through this every couple of years, and, you know, the process is always difficult to understand in terms of where our role fits and where it doesn't. We're restricted in many ways, and yet, you know, this still comes before us. And I know that presentations have been made in the past on behalf of the judiciary that probably it shouldn't come in this sort of a fashion or format.
I did read the objections on these two issues in particular. In the initial report, the response from the government, this is the first time we're seeing it in this detail, and it, you know, refers to the standing committee, and we're rejecting it on the basis of a number of legal principles and legal precedent and rulings by the Supreme Court. And I don't take objection with the two objections or the stated rationale; I just think it's difficult sometimes for, you know, a standing committee; I mean, lots of times motions comes to committees in this Assembly that aren't previously seen by opposite–members opposite, but they're usually a little bit easier to digest than those, you know, might–would legitimately require us to go back and look at legal precedent and look at past rulings, and probably that's, you know, something that could've been done in this case.
I don't know if these two issues, in particular, the relation of the insurance and how one gets into the program. Does the judge know the level they're insured at or necessarily the issue of the pension contribution, whether it should be approved by JCCs, would warrant holding the entire report up, and I don't propose to do that. But I do put on the record that I think it's difficult sometimes to look at a substantive amendment that refers to court rulings and past precedences–and precedents and expect the standing committee to move on it pretty quickly.
So I think in the future it might be a better process, particularly on an issue like this, which I think is generally considered fairly non-political, knowing that some of these have become a little bit more political, but generally non-political, that the motions could be shared when they're so significant and substantive, but not prepared to hold it up based on the nature of the two issues at play here. I don't want to hold it up for any more weeks or months.
Hon. Jon Gerrard (River Heights): Yes, just a couple of comments on the two issues which are particularly of concern right now, which is one, the pensions, and the other, the life insurance.
I follow the government's argument with regard to the life insurance issue. That seems a reasonable approach. I do have some concerns about the decision with regard to the JCC review of the changes and when it comes to the pension contributions. And I note that in the ruling that the Judicial Compensation Committee has put pretty bluntly that it's a constitutional requirement, and I'm just wondering whether the government is arguing that it is not a constitutional requirement. Or is the government making the case that the, you know, JCC doesn't meet 'oftenable' enough or can't be flexible enough to provide the review in a timely fashion that's needed, that–such that it would hold up pension changes for everybody in the system?
Mr. Mackintosh: Yes, it is the view set out in the motion that it is not a constitutional requirement. It's not as if the judges do not have an ability to set out a voice. There's a joint stakeholders' committee as other members of the fund are entitled to express themselves through. So it really recognizes the fact of a fund that serves 34,000 people needing to continue in the structural arrangement that has been set down over many, many years, and it seeks to avoid any veto to any particular group, and the small group in that fund.
Mr. Gerrard: The minister puts forward the argument that it's not a constitutional requirement, and yet the people who are on the Judicial Compensation Committee are people who should have a pretty good understanding of the law and the Constitution.
Can the minister explain in a little more detail why he feels this is not a constitutional requirement?
Mr. Mackintosh: We fail to see how judicial independence is better secured by giving judges a separate veto in the fund. Independence is achieved by them being in a fund of this size. That, then, is a, you know–the fund is being governed not by any direction of the government vis-à-vis judges. It is a fund with integrity and will continue as such, and so I think the issue of independence and the management of this fund shouldn't be confused.
Madam Chairperson: Is the–Mr. Goertzen.
Mr. Goertzen: Just one final point. I want to thank Michael Werier for his work on this report. I know he's done different sorts of work like this when it comes to setting compensation for the public sector and those who are in unique positions within public service. And it's not an easy job to do, and it probably is subject to criticism and second-guessing as a lot of things are, and rightly so. I mean, that's a part of the transparent process of these things. But I appreciate the work that he does on these things, and while I don't necessarily always agree with everything that he recommends on a variety of different sorts of things, I know that when he does it, he does it thoughtfully and with a great deal of discernment and looking what is justifiable and reasonable in the process that we have. So I just want to put that on the record.
Mr. Gerrard: I also want to congratulate all the members of the committee who put a lot of time and effort into this. I have one more question for the government.
Since the report initially came through almost a year ago, when this report is accepted, when do the changes come into effect? Do they come into effect with the report, you know, retroactive, or do they come into effect when the report is–on the date the report is accepted by the Legislature?
Mr. Mackintosh: The effective dates are set out in the different recommendations made by the JCC. And so that will have to be complied with. That'll be very important. For example, with regard to pay, there's a certain–there are applicable periods that are set out in the report, and so in that case it would be retroactive, for example, and others are prospective. [interjection] So it'll–the payments can begin once the Legislature has approved the report from the committee.
Mr. Gerrard: Thank you. I just wanted it on the record in terms of the report and the timeline that was in the report would be agreed to. Thank you.
Madam Chairperson: Shall the motion pass? [Agreed]
If there are no further comments, is it the will of the committee to report to the House that we have completed our consideration of the Report and Recommendations of the Judicial Compensation Committee dated November 20th, 2014? [Agreed]
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We will now deal with the process for hiring a new Conflict of Interest Commissioner, Information and Privacy Adjudicator and Lobbyist Registrar.
I would like to remind the members that when this matter was last considered in August, the committee agreed for the House leaders and Honourable Mr. Gerrard to further consult and that the committee would meet again to hear from them.
For the information of the committee, while legislation requires that the first two positions that the standing committee recommends the Lieutenant Governor-in-Council to appoint a person, The Lobbyists Registration Act does not call for such a recommendation. However, given that historically the person appointed as Information and Privacy Adjudicator has also been invested with the role of Lobbyist Registrar, this committee may discuss the appointment of a new Lobbyist Registrar, but the committee does not have the power to recommend an appointment for this position since it is a direct Cabinet appointment.
How does the committee wish to proceed?
Hon. Dave Chomiak (Minister of Mineral Resources): Just by way of comment, I want to report that the subcommittee met and discussed the matters and, arising out of the discussion–[interjection]–pardon me, the House leaders met and discussed these matters and, arising out of the discussion, I intend to move a motion in this committee for a further development in progress of the process.
So I move
THAT a subcommittee of the Standing Committee on Legislative Affairs be struck to manage the process of hiring a new Conflict of Interest Commissioner and Information and Privacy Adjudicator for the Province of Manitoba under the terms and conditions as follows:
(a) the subcommittee consist of four government members, two official opposition members and one independent member;
(b) the subcommittee have the authority to call their own meetings, the ability to meet in camera and the ability to undertake duties it deems necessary in order to fulfill its responsibilities in the hiring process;
(c) the subcommittee may only report back to the Standing Committee on Legislative Affairs with a recommendation that has been agreed to by all members; and
(d) the Committees Branch staff as well as the Legislative Assembly human resource staff be authorized to attend all meetings of the subcommittee.
Madam Chairperson: It has been moved by the Honourable Mr. Chomiak
THAT a subcommittee of the Standing Committee on–
An Honourable Member: Dispense.
Madam Chairperson: The motion is in order.
The floor is open for questions.
Mr. Goertzen: More for clarification, I think I understood it correctly. So the Government House Leader (Mr. Chomiak) is indicating that it needs to be a unanimous recommendation back from the subcommittee to the Legislative Affairs Committee.
Mr. Chomiak: Yes, I believe that is the case.
Madam Chairperson: Is the committee ready for the question?
Some Honourable Members: Question.
Madam Chairperson: Motion–pass.
I would like to thank the committee for your work here today, and this concludes the business before the committee.
The hour being 2:33, what is the will of the committee?
Some Honourable Members: Rise.
Madam Chairperson: Committee rise.
COMMITTEE ROSE AT: 2:33 p.m.