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Bill C-37

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1st Session, 36th Parliament,
46-47 Elizabeth II, 1997-98

The House of Commons of Canada

BILL C-37

An Act to amend the Judges Act and to make consequential amendments to other Acts

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. J-1; R.S., cc. 5, 11, 27, 41, 50 (1st Supp.), c. 27 (2nd Supp.), cc. 16, 39 (3rd Supp.), c. 51 (4th Supp.); 1989, c. 8; 1990, cc. 16, 17; 1992, cc. 1, 51; 1993, cc. 13, 28, 34; 1994, c. 18; 1996, cc. 2, 10, 22, 30

JUDGES ACT

1. Section 2 of the Judges Act is amended by adding the following in alphabetical order:

``surviving spouse''
« conjoint survivant »

``surviving spouse'', in relation to a judge, includes a person of the opposite sex who has cohabited with the judge in a conjugal relationship for at least one year immediately before the judge's death.

1992, c. 51, s. 4

2. Subsection 8(2) of the Act is replaced by the following:

Retirement age

(2) A judge of the Superior Court of Justice in and for the Province of Ontario who held the office of a judge of the District Court of Ontario on March 1, 1987 and on August 31, 1990 may retire at the age of seventy years.

1990, c. 17, s. 29(1)

3. (1) The portion of section 12 of the Act before paragraph (a) is replaced by the following:

Court of Appeal for Ontario and the Superior Court of Justice

12. The yearly salaries of the judges of the Court of Appeal for Ontario and of the Superior Court of Justice in and for the Province of Ontario are as follows:

1990, c. 17, s. 29(2)

(2) Paragraph 12(c) of the Act is amended by replacing the expression ``Ontario Court'' with the expression ``Superior Court of Justice''.

1990, c. 17, s. 29(2)

(3) Paragraph 12(d) of the Act is amended by replacing the expression ``Ontario Court (General Division)'' with the expression ``Superior Court of Justice''.

1996, c. 30, s. 1

4. (1) Paragraph 24(3)(a) of the Act is replaced by the following:

    (a) thirteen , in the case of judges appointed to appeal courts in the provinces; and

1992, c.51, s. 7(3)

(2) The portion of subsection 24(4) of the Act before paragraph (a) is replaced by the following:

Unified family courts

(4) For the purposes of assisting the establishment of unified family courts in the provinces, a further number of salaries not greater than thirty-six at any one time may be paid in the case of judges appointed to courts described in paragraph (3)(b)

1994, c. 18, s. 9

5. Subsection 25(5) of the Act is replaced by the following:

Calculation of salary for the twelve months commencing April 1, 1997

(5) For the purposes of determining the salary annexed to an office of judge under subsection (1) for the twelve month period commencing April 1, 1997, the salary annexed to that office for the twelve month period immediately preceding that twelve month period shall be deemed to be the salary determined under subsection (4) multiplied by 104.1 per cent.

Calculation of salary for the twelve months commencing April 1, 1998

(6) For the purposes of determining the salary annexed to an office of judge under subsection (1) for the twelve month period commencing April 1, 1998, the salary annexed to that office for the twelve month period immediately preceding that twelve month period shall be deemed to be the salary determined under subsection (5) multiplied by 104.1 per cent.

1996, c. 2, s. 1(1)

6. Section 26 of the Act is replaced by the following:

Commission

26. (1) The Judicial Compensation and Benefits Commission is hereby established to inquire into the adequacy of the salaries and other amounts payable under this Act and into the adequacy of judges' benefits generally.

Quadrennial inquiry

(2) The Commission shall commence an inquiry on September 1, 1999, and on September 1 of every fourth year after 1999, and shall submit a report containing its recommendations to the Minister of Justice of Canada within nine months after the date of commencement.

Postpone-
ment

(3) The Commission may, with the consent of the Minister of Justice and the judiciary, postpone the date of commencement of a quadrennial inquiry.

Other reports

(4) In addition to its quadrennial inquiry, the Minister of Justice may at any time refer to the Commission for its inquiry a matter mentioned in subsection (1). The Commission shall submit to that Minister a report containing its recommendations within a period fixed by the Minister after consultation with the Commission.

Extension of time

(5) The Governor in Council may, on the request of the Commission, extend the time for submission of a report under subsection (2) or (4).

Report of Commission

(6) The Minister of Justice shall table a copy of the report in each House of Parliament on any of the first ten days on which that House is sitting after the Minister receives the report.

Response to report

(7) The Minister of Justice shall respond to a report within six months after receiving it.

Nomination

26.1 (1) The Judicial Compensation and Benefits Commission consists of three members appointed by the Governor in Council as follows:

    (a) one person nominated by the judiciary;

    (b) one person nominated by the Minister of Justice of Canada; and

    (c) one person, who shall act as chairperson, nominated by the members who are nominated under paragraphs (a) and (b).

Tenure and removal

(2) Each member holds office during good behaviour, and may be removed for cause at any time by the Governor in Council.

Term of office

(3) The term of office for the initial members appointed to the Commission ends on August 31, 2003. The members subsequently appointed hold office for a term of four years.

Continuance of duties

(4) Where the term of a member ends, other than in the case of removal for cause, the member may carry out and complete any duties of the members in respect of a matter that was referred to the Commission under subsection 26(4) while he or she was a member.

Reappoint-
ment

(5) A member is eligible to be reappointed for one further term if re-nominated in accordance with subsection (1).

Absence or incapacity

(6) In the event of the absence or incapacity of a member, the Governor in Council may appoint as a substitute temporary member a person nominated in accordance with subsection (1) to hold office during the absence or incapacity.

Vacancy

(7) If the office of a member becomes vacant during the term of the member, the Governor in Council shall appoint a person nominated in accordance with subsection (1) to hold office as a member for the remainder of the term.

Quorum

(8) A quorum of the Commission consists of all three members.

Remunera-
tion

(9) The members of the Commission and persons carrying out duties under subsection (4) shall be paid

    (a) the fees fixed by the Governor in Council; and

    (b) such travel and living expenses incurred in the course of their duties while away from their ordinary place of residence as are fixed by the Governor in Council.

Compensa-
tion

(10) The members of the Commission and persons carrying out duties under subsection (4) are deemed to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

Personnel

26.2 (1) The Commission may engage the services of any persons necessary for the proper conduct of the Commission.

Presumption

(2) No person engaged under subsection (1) shall, as a result, be considered to be employed in the public service of Canada.

1990, c. 17, s. 33

7. Section 38 of the Act is replaced by the following:

Judges of the Superior Court of Justice of Ontario

38. A judge of the Superior Court of Justice in and for the Province of Ontario who, for the purpose of performing any function or duty in that capacity, attends at any judicial centre within the region for which the judge was appointed or assigned, other than the judicial centre at which or in the immediate vicinity of which the judge resides, is entitled to be paid, as a travel allowance, moving or transportation expenses and the reasonable travel and other expenses incurred by the judge in so attending.

8. (1) Paragraph 42(1)(a) of the Act is replaced by the following:

    (a) a judge who has continued in judicial office for at least fifteen years, whose combined age and number of years in judicial office is not less than eighty and who resigns from office,

(2) Subsection 42(1) of the Act is amended by striking out the word ``or'' at the end of paragraph (c), by adding the word ``or'' at the end of paragraph (d) and by adding the following after paragraph (d):

    (e) a judge of the Supreme Court of Canada who has continued in judicial office on that Court for at least ten years, has attained the age of sixty-five years and resigns from office,

1996, c. 30, s. 3

9. Subsection 44(4) of the Act is replaced by the following:

Waiver

(4) A surviving spouse is not entitled to receive an annuity under this section if the surviving spouse has waived his or her entitlement to the annuity under a separation agreement entered into in accordance with applicable provincial law.

Limitation on annuity to surviving spouse

(5 ) No annuity shall be granted under this section to the surviving spouse of a judge unless the surviving spouse

    (a) married the judge before the judge ceased to hold office; or

    (b) commenced cohabiting with the judge in a conjugal relationship before the judge ceased to hold office.

10. The Act is amended by adding the following after section 44:

Annuity to be prorated between surviving spouses

44.1 (1) Notwithstanding section 44, if there are two surviving spouses who are entitled to an annuity under that section, each surviving spouse shall receive a share of the annuity prorated in accordance with subsection (2) for his or her life.

Determi-
nation of prorated share

(2) The prorated share of each surviving spouse is equal to the product obtained by multiplying the annuity by a fraction of which the numerator is the number of years that the surviving spouse cohabited with the judge and the denominator is the total obtained by adding the number of years that each of the surviving spouses cohabited with the judge.

Years

(3) In determining a number of years for the purpose of subsection (2), a part of a year shall be rounded to the nearest one tenth of a year.

Election for former judges

45. (1) Subject to the regulations, a judge who is in receipt of an annuity under this Act may elect to reduce his or her annuity so that an annuity may be paid to a surviving spouse who

    (a) married the judge after the judge ceased to hold office; or

    (b) cohabited with the judge in a conjugal relationship for a period of at least one year immediately before the election but who would not be entitled to an annuity under section 44.

Reduction of annuity

(2) If a judge makes the election, the amount of the annuity to which the judge is entitled shall be reduced in accordance with the regulations, but the combined actuarial present value of the reduced annuity and the annuity to which the surviving spouse could become entitled under subsection (3) may not be less than the actuarial present value of the annuity to which the judge is entitled immediately before the reduction is made.

Payment to surviving spouse

(3) When the judge dies, his or her surviving spouse is entitled to an annuity in an amount determined in accordance with the election and the regulations if that surviving spouse is the person in respect of whom the election was made.

Regulations

(4) The Governor in Council may make regulations

    (a) prescribing the time when and the manner in which an election may be made;

    (b) prescribing the circumstances under which and the terms and conditions on which a judge who has made an election may revoke it or the election is deemed to be revoked, either in whole or in part, and a new election may be made;

    (c) respecting the reduction to be made in the amount of an annuity under subsection (2); and

    (d) respecting the amount of the annuity to be paid to a surviving spouse under subsection (3).

1989, c. 8, s. 12

11. Section 46.1 of the Act is replaced by the following:

Lump sum payment

46.1 When a judge dies while holding office, a lump sum equal to one sixth of the yearly salary of the judge at the time of death shall be paid to the surviving spouse of the judge or, if there are two surviving spouses, to the spouse who was cohabiting with the judge at the time of death.

12. The portion of subsection 47(1) of the French version of the Act before paragraph (a) is replaced by the following:

Définition de « enfant »

47. (1) Pour l'application du présent article et des articles 48 et 49, « enfant » s'entend de tout enfant - y compris un enfant adoptif - d'un juge ou de son conjoint, qui :

13. Paragraph 51(4)(b) of the Act is replaced by the following:

    (b) calculate interest on the amount determined under paragraph (a) in respect of each contribution year, compounded annually,

      (i) in respect of each contribution year before 1997 ,

        (A) at the rate of four per cent from December 31 of the contribution year to December 31, 1996, and

        (B) at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act in effect from time to time, from December 31, 1996 to December 31 of the year immediately before the year in which the amount in respect of contributions made by the judge becomes payable, and

      (ii) in respect of the 1997 contribution year and each contribution year after 1997, at the rate mentioned in clause (i)(B) from December 31 of the contribution year to December 31 of the year immediately before the year in which the amount in respect of contributions made by the judge becomes payable.

TRANSITIONAL PROVISIONS

Transition-
al - proceedings

14. Every proceeding commenced before the coming into force of this section and in respect of which any provision amended by sections 16 to 20 applies shall be taken up and continued under and in conformity with that amended provision without any further formality.

Transition-
al - cross references

15. (1) In any Act of Parliament, other than in a provision amended by sections 16 to 20, or in any proclamation, regulation, order, instrument or other document, a reference to the Ontario Court (General Division) or the Ontario Court (Provincial Division) shall be construed, with respect to any transaction, matter or event occurring after the coming into force of this section, as a reference to

    (a) in the case of the Ontario Court (General Division), the Superior Court of Justice or the Superior Court of Justice in and for the Province of Ontario, as the case may require; and

    (b) in the case of the Ontario Court (Provincial Division), the Ontario Court of Justice.

Transition-
al - seals and forms

(2) A reference in a court seal or printed court form to the Ontario Court (General Division) or the Ontario Court (Provincial Division), or the title of an official of either Court, does not prevent the seal or form from being used during the one year period following the date on which the change to the name or title becomes effective.

REFERENCES

16. The following provisions are amended by replacing the expression ``Ontario Court (General Division)'' with the expression ``Superior Court of Justice in and for the Province of Ontario``:

    (a) the definition ``clerk of the court'' in subsection 71(2) of the Customs Act; and

    (b) subsections 205(1), 237(3) and 606(1) and section 623 of the Canada Shipping Act.

17. The French version of the following provisions is amended by replacing the expression ``Cour de l'Ontario (Division générale)'' with the expression ``Cour supérieure de justice de l'Ontario``:

    (a) paragraph (a) of the definition ``tribunal'' in section 2 of the Bank Act;

    (b) paragraph (a.1) of the definition ``tribunal'' in subsection 2(1) of the Canada Business Corporations Act;

    (c) paragraph (a) of the definition ``cour supérieure'' in section 6 of the Canada Transportation Act;

    (d) paragraph (a) of the definition ``tribunal'' in subsection 16(22) of the Coasting Trade Act;

    (e) paragraph (a) of the definition ``tribunal'' in section 2 of the Cooperative Credit Associations Act;

    (f) paragraph (a) of the definition ``tribunal'' in subsection 2(1) of the Divorce Act;

    (g) paragraph 118(2)(a.1) of the Financial Administration Act;

    (h) paragraph (a) of the definition ``tribunal'' in subsection 2(1) of the Insurance Companies Act;

    (i) paragraph (a.1) of the definition ``juridiction supérieure'' or ``cour supérieure'' in subsection 35(1) of the Interpretation Act;

    (j) paragraph 21(a.1) of the Merchant Seamen Compensation Act;

    (k) paragraph (a) of the definition ``cour supérieure'' in subsection 4(1) of the Railway Safety Act; and

    (l) paragraph (a) of the definition ``tribunal'' in section 2 of the Trust and Loan Companies Act.

18. The following provisions are amended by replacing the expression ``Ontario Court (General Division)'' with the expression ``Superior Court of Justice``:

    (a) paragraph 183(1)(a) of the Bankruptcy and Insolvency Act;

    (b) paragraph (c.1) of the definition ``judge'' or ``the judge'' in subsection 2(1) and paragraph 186(1)(a.1) of the Canada Elections Act;

    (c) paragraph (a.1) of the definition ``court'' in section 2 of the Companies' Creditors Arrangement Act;

    (d) paragraph (a) of the definition ``superior court of criminal jurisdiction'' in section 2, paragraph (a) of the definition ``appeal court'' in subsection 100(11), paragraph (a.1) of the definition ``court'' in subsection 164(8), paragraph (a.1) of the definition ``court'' in subsection 320(8), columns II and III of the schedule to Part XXV in respect of Ontario and paragraph 812(a) of the Criminal Code;

    (e) paragraph (a) of the definition ``court'' in subsection 71(2) and paragraph 138(5)(a) of the Customs Act;

    (f) the definition ``clerk'' or ``clerk of the court'' and paragraph (a) of the definition ``court'' in subsection 2(1) of the Dominion Controverted Elections Act;

    (g) paragraph (a.1) of the definition ``judge'' in section 74 of the Fisheries Act;

    (h) paragraph (a) of the definition ``court'' in section 2 of the Fugitive Offenders Act;

    (i) paragraph (a.1) of the definition ``judge'' in subsection 93.1(9) and paragraph (a.1) of the definition ``judge'' in subsection 102.2(9) of the Immigration Act;

    (j) paragraph 14.3(5)(a.1) of the Indian Act;

    (k) paragraph (a) of the definition ``judge'' in subsection 2(1) of the Mutual Legal Assistance in Criminal Matters Act; and

    (l) paragraph (a.1) of the definition ``court'' in section 2 and subsection 136(2) of the Winding-up and Restructuring Act.

19. The English version of the following provisions is amended by replacing the expression ``Ontario Court (General Division)'' with the expression ``Superior Court of Justice``:

    (a) paragraph (a) of the definition ``court'' in section 2 of the Bank Act;

    (b) paragraph (a.1) of the definition ``court'' in subsection 2(1) of the Canada Business Corporations Act;

    (c) paragraph (a) of the definition ``superior court'' in section 6 of the Canada Transportation Act;

    (d) paragraph (a) of the definition ``court'' in subsection 16(22) of the Coasting Trade Act;

    (e) paragraph (a) of the definition ``court'' in section 2 of the Cooperative Credit Associations Act;

    (f) paragraph (a) of the definition ``court'' in subsection 2(1) of the Divorce Act;

    (g) paragraph 118(2)(a.1) of the Financial Administration Act;

    (h) paragraph (a) of the definition ``court'' in subsection 2(1) of the Insurance Companies Act;

    (i) paragraph (a.1) of the definition ``superior court'' in subsection 35(1) of the Interpretation Act;

    (j) paragraph 21(a.1) of the Merchant Seamen Compensation Act;

    (k) paragraph (a) of the definition ``superior court'' in subsection 4(1) of the Railway Safety Act; and

    (l) paragraph (a) of the definition ``court'' in section 2 of the Trust and Loan Companies Act.

1995, c. 39

20. On the later of the coming into force of this section and the definition ``superior court'' in subsection 84(1) of the Criminal Code, as enacted by section 139 of the Firearms Act, chapter 39 of the Statutes of Canada, 1995, the expression ``Ontario Court (General Division)'' in paragraph (a) of that definition is replaced by the expression ``Superior Court of Justice''.

COMING INTO FORCE

Coming into force

21. Sections 2, 3 and 7, section 45 of the Judges Act as enacted by section 10, and sections 14 to 20 come into force on a day or days to be fixed by order of the Governor in Council.

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