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 in and h:H· the Province of t\\bert<! Counsel for The Alberta Provincial Judges' Association
95
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APPLYING THE CRITERIA ........................................................................................................................................ 18
• • • :JiONAL LAW OF CANADA AND THE NEED TO MAiN"lAIN :NDtYFNDENCf. OF JUDGES AND THE
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
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
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 '"=· """""="""~~~~'"""'""'"' "'"""~""''
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
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
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).
• 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
'"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).
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
~~~~~~;-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