2003 Legislative Session: 4th Session, 37th Parliament
FIRST READING
The following electronic version is for informational
purposes only.
The printed version remains the official version.
HONOURABLE GEOFF PLANT
ATTORNEY GENERAL AND MINISTER
RESPONSIBLE FOR TREATY NEGOTIATIONS
Contents
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 (1) In this Act:
"commission" means the Judges Compensation Commission formed under section 2 or the Judicial Justices Compensation Commission formed under section 3;
"fiscal year", except in Part 3, means the period beginning on April 1 in one year and ending on March 31 in the next year;
"Public Service Pension Plan" means the Public Service Pension Plan continued under the Public Service Pension Plan Joint Trust Agreement;
"Public Service Pension Plan Joint Trust Agreement" means the agreement established under section 18 of Schedule C of the Public Sector Pension Plans Act.
(2) The definitions in the Provincial Court Act, except where a contrary definition is set out in this Act, apply to this Act.
Part 1 -- Compensation Commissions
2 (1) On or before March 1, 2004 and on or before March 1 in every third year after that, 3 individuals must be appointed, in accordance with subsection (2), to form the Judges Compensation Commission.
(2) The individuals forming the Judges Compensation Commission must be appointed as follows:
(a) the minister must appoint one individual;
(b) the chief judge, after consulting with the Provincial Court Judges' Association of British Columbia, must appoint one individual;
(c) the individuals appointed under paragraphs (a) and (b) must appoint one other individual to the commission to chair that commission.
3 (1) On or before March 1, 2004 and on or before March 1 in every third year after that, 3 individuals must be appointed, in accordance with subsection (2), to form the Judicial Justices Compensation Commission.
(2) The individuals forming the Judicial Justices Compensation Commission must be appointed as follows:
(a) the minister must appoint one individual;
(b) the chief judge, after consulting with the Judicial Justices Association of British Columbia, must appoint one individual;
(c) the individuals appointed under paragraphs (a) and (b) must appoint one other individual to the commission to chair that commission.
4 (1) If there is a vacancy on a commission, an individual must be appointed in the same manner as the individual who vacated the position was appointed.
(2) An individual appointed to a commission may be reappointed to a subsequent commission.
(3) None of the individuals appointed to a commission may be a judge or judicial justice, a retired judge or judicial justice or a person employed in the public service or by a Crown corporation.
(4) The members of a commission must be reimbursed for travelling expenses reasonably and necessarily incurred in the discharge of their duties, and, in addition, may be paid remuneration specified by the Lieutenant Governor in Council.
5 (1) Not later than September 1 following its formation, a commission must, in a preliminary report to the minister and chief judge,
(a) report on all matters respecting the remuneration, allowances and benefits of judges or judicial justices, and
(b) make recommendations with respect to those matters for each of the next 3 fiscal years.
(2) Within 14 days of receiving the preliminary report, the minister or chief judge may apply to the commission for a clarification of a matter in the report or in respect of a matter the commission did not address in the report.
(3) If an application is made under subsection (2), the commission must make a final report to the minister not later than September 30 following its formation.
(4) If an application is not made under subsection (2), the preliminary report is the final report.
(5) In preparing a report, a commission must consider all of the following:
(a) the current financial position of the government;
(b) the need to provide reasonable compensation to the judges or judicial justices;
(c) the need to maintain a strong court by attracting qualified applicants;
(d) the laws of British Columbia;
(e) any other matter the commission considers relevant.
(6) Before preparing a report, a commission may
(a) write and receive submissions,
(b) hold hearings in the manner the commission may decide, and
(c) with the approval of the minister, engage and retain consultants the commission considers necessary.
6 (1) The minister must lay the final report of a commission before the Legislative Assembly, and must advise the Legislative Assembly about the effect of subsection (3),
(a) if the Legislative Assembly is sitting at the date the minister receives the report, within 7 days after the date the minister receives the report,
(b) if the Legislative Assembly is not then sitting, within 7 days after the opening of the next session, or
(c) if the Legislative Assembly ceases to sit within 28 days after the date on which the report was laid before the Legislative Assembly and the Legislative Assembly has not passed a resolution under subsection (2), within 7 days after the opening of the next session.
(2) The Legislative Assembly may, by a resolution passed within 28 days after the date on which a report is laid before the Legislative Assembly under subsection (1),
(a) reject one or more of the recommendations made in the report as being unfair or unreasonable, and
(b) set the remuneration, allowances or benefits that are to be substituted for the remuneration, allowances or benefits proposed by the rejected recommendations.
(3) If a recommendation is not rejected by the Legislative Assembly within the time limited by subsection (2), the judges or judicial justices are entitled to receive the remuneration, allowances and benefits proposed by that recommendation beginning on April 1 of the year following the year referred to in, or applicable under, section 2 (1) or 3 (1).
(4) If the Legislative Assembly does resolve to reject a recommendation under subsection (2) (a), the judges or judicial justices are, in respect of that recommendation, entitled to receive the remuneration, allowances and benefits set by the resolution under subsection (2) (b) beginning on April 1 of the year following the year referred to in, or applicable under, section 2 (1) or 3 (1).
(5) If the 28 days specified in subsection (2) end after April 1 of the year for which the recommendations in the report, subject to subsection (2), were to apply, the recommendation applicable under subsection (3) or the resolution applicable under subsection (4) is retroactive to the extent necessary to give effect to the recommendation or resolution on April 1 of that year.
(6) If a resolution referred to in subsection (2) or a recommendation referred to in subsection (3) conflicts with a provision of this Act, the resolution or recommendation prevails over that provision to the extent of the conflict.
(7) A resolution referred to in subsection (2) or a recommendation referred to in subsection (3) may set different salaries for different responsibilities.
7 On the application of both the minister and chief judge, a commission may provide clarification or directions with respect to the implementation of a recommendation.
8 (1) Subject to subsection (2), a judge must be paid, out of the consolidated revenue fund, a salary
(a) recommended by a report laid before the Legislative Assembly under section 6 (1), or
(b) if a resolution is passed by the Legislative Assembly under section 6 (2), set by the resolution.
(2) A part time judge's salary in any year
(a) must not exceed 40% of the salary of a full time judge, and
(b) must not exceed the difference between the salary to which a full time judge is entitled for that year and the part time judge's pension for that year.
(3) For the purpose of calculating a part time judge's salary under this section, the chief judge may require the judge to give written notice of
(a) the normal form of the judge's pension calculated before any election of pension options and before any pension division or deduction from the pension, and
(b) any adjustments or changes to the pension the judge receives.
9 A judicial justice must be paid, out of the consolidated revenue fund, a salary
(a) recommended by a report laid before the Legislative Assembly under section 6 (1), or
(b) if a resolution is passed by the Legislative Assembly under section 6 (2), set by the resolution.
10 A judge or judicial justice must be reimbursed for reasonable travelling and out of pocket expenses incurred by the judge or judicial justice in discharging his or her duties.
11 The chief judge is responsible for scheduling the annual vacation of judges and judicial justices.
12 (1) The chief judge may in special circumstances grant a judge or judicial justice leave of absence from duties for more than the maximum annual vacation to which the judge or judicial justice is entitled, at a salary, if any, that the chief judge determines.
(2) If the chief judge believes that a judge or judicial justice who has not been granted a leave of absence under subsection (1) has been absent for more than the maximum annual vacation to which the judge or judicial justice is entitled, the chief judge must report the absence to the minister.
13 A judge or judicial justice who is entitled to receive benefits under a sickness or disability benefit plan for, or applicable to, judges or judicial justices is not entitled to his or her salary except as provided in the plan.
14 (1) Subject to subsection (2) but despite any other provision of this Act, a judge serving under section 7 of the Provincial Court Act or appointed under section 8 of the Provincial Court Act is not entitled to payment by the government of remuneration, expenses, vacation benefits, pension benefits, sickness or disability benefits or any other kind of payment merely because of services rendered or costs incurred as a result of the service or appointment.
(2) If the minister authorizes payment of an amount to the judge appointed under section 8 of the Provincial Court Act or to the province from which the judge comes, or to both, as some or all of the remuneration or expenses of the judge, the payment may be made.
15 The Public Service Pension Plan applies to a judicial justice on the judicial justice delivering to the Public Service Pension Board of Trustees notice of that judicial justice's election to have the plan apply to that judicial justice.
16 (1) In this Part:
"active member" means, except in section 24, a judge who, on or after January 1, 2001, is making, or is deemed to be making, contributions to the pension fund in respect of service as a judge, and includes a judge who is
(a) on a leave of absence approved by the chief judge,
(b) receiving a group disability plan benefit, or
(c) no longer required by this Act or the pension plan rules to contribute to the pension fund,
but does not include a judge who has ceased to hold office or who is receiving a pension benefit;
"ceases employment" means
(a) ceases to hold office and terminates employment, or
(b) reaches latest retirement age, in which case the member is deemed to have terminated employment for the purposes of the Public Service Pension Plan;
"judicial service" means pensionable service for which contributions to the pension fund have been made, or are deemed to have been made, in respect of service as a judge;
"pension fund" means the Public Service Pension Fund continued under the Public Service Pension Plan Joint Trust Agreement;
"pension plan rules" mean the rules of the Public Service Pension Plan.
(2) The definitions in the pension plan rules, except where a contrary definition is set out in this Part, apply to this Part.
17 (1) Subject to this Part, the Public Service Pension Plan continues to apply to every judge.
(2) The pension plan rules are subject to this Part, and apply with the necessary changes and so far as they are applicable.
(3) If there is a conflict or inconsistency between this Part and the pension plan rules, this Part prevails.
(4) A decision of the plan administrative agent respecting the application of this Part and the pension plan rules may, by written notice, be appealed to the board in accordance with the practice and procedure for appeals to the board.
18 (1) Instead of the contributions required by the pension plan rules,
(a) the government must deduct 7% from each payment of salary made to an active member and pay that amount to the pension fund, as a contribution from the member, and
(b) each time the government deducts and pays an active member's contributions in accordance with paragraph (a), the government must pay to the pension fund, as a contribution from the government, 22.2% of the active member's salary.
(2) An active member who stopped contributing before January 1, 2001 after reaching 35 years of pensionable service, determined in accordance with the Provincial Court Act and the pension plan rules as they both read on December 31, 2000, may, effective January 1, 2001, at the active member's option, resume making contributions in accordance with subsection (1) (a).
(3) If an active member referred to in subsection (2) resumes making contributions in accordance with subsection (1) (a), the government must resume making contributions in accordance with subsection (1) (b) or (6).
(4) Member contributions and government contributions under this section must stop on the earlier of
(a) the member reaching latest retirement age, and
(b) the member accruing the maximum pension referred to in section 21 (6), in which case the member is deemed to continue as an active member until the member ceases employment.
(5) Member contributions and government contributions under this section must be allocated to the pension fund accounts as determined by the board.
(6) Despite subsection (1) (b), if the board receives a recommendation by an actuary that a change in the amount of the government contribution is required to fund the pension benefits provided under this Act, the board may determine the amount of the government contribution.
19 (1) A member who
(a) was an active member,
(b) has completed 2 or more years of contributory service,
(c) ceases to hold office and terminates employment on or after January 1, 2001, and
(d) elects to receive a deferred pension
will receive a pension in accordance with this Act, on meeting the eligibility requirements of section 20 (1) or 22 (1).
(2) For greater certainty, an inactive member who
(a) ceased to hold office before January 1, 2001,
(b) was eligible to receive a deferred pension under the pension plan rules, and
(c) applies to receive the deferred pension
is entitled to receive that pension in accordance with the Provincial Court Act or this Act, as the applicable Act read on the date the inactive member ceased to hold office, and the pension plan rules, as they read on the date the inactive member terminated employment.
20 (1) An active member, or a member referred to in section 19 (1), who, on or after January 1, 2001, ceases employment is, on application, entitled to an unreduced pension calculated under this Act if
(a) the member meets the criteria for an unreduced pension as specified in the pension plan rules, or
(b) the member has reached age 55 and has completed at least 5 years of contributory service.
(2) The payment of pension benefits must not be delayed beyond latest retirement age.
21 (1) For the purpose of calculating the amount of the pension to which a member referred to in section 20 (1) is entitled, the highest average salary is, subject to subsection (2), the average of 1/12 of the annual salary that the member received, or is deemed to have received, in each fiscal year
(a) during the 3 years of service in which the member received, or is deemed to have received, his or her highest salary before the date on which the member begins receiving a pension, or
(b) during the member's actual period of pensionable service, if the member's period of pensionable service is less than 3 years.
(2) A partial year may be combined as required with a portion of the salary of the lowest of the 3 years in order to calculate a highest annual salary for the combined year if
(a) a member does not cease employment at the end of a fiscal year, and
(b) if the annualized salary for that partial year is equal to or higher than the annual salaries received, or deemed to have been received, in each of the 3 full years of highest annual salary as determined under subsection (1),
and the combined year can be used in place of the lowest of the 3 years, but in no case can the total of the 2 portions exceed one year of salary.
(3) Subsections (1) and (2) apply to both judicial service and any other pensionable service that preceded the judicial service.
(4) Instead of the pension provided by the pension plan rules, a member referred to in section 20 (1) is entitled to receive an unreduced pension, payable in accordance with section 23, that is the sum of all of the following:
(a) 3% of the member's highest average salary multiplied by the number of years of judicial service accrued on and after January 1, 2001;
(b) 2.35% of the lesser of
(i) the member's highest average salary, and
(ii) 1/12 of the year's maximum pensionable earnings for the calendar year immediately before the calendar year of the effective date of the pension
multiplied by the number of years of judicial service accrued on and after January 1, 1966 and before January 1, 2001;
(c) 3% of the excess of the member's highest average salary over the amount determined under paragraph (b) (ii), multiplied by the number of years of judicial service accrued on and after January 1, 1966 and before January 1, 2001;
(d) an amount, payable until the earlier of the member reaching age 65 and the death of the member, that is 0.65% of the lesser of
(i) the member's highest average salary, and
(ii) 1/12 of the year's maximum pensionable earnings for the calendar year immediately before the calendar year of the effective date of the pension
multiplied by the number of years of judicial service accrued on and after January 1, 1966 and before January 1, 2001;
(e) 1.35% of the lesser of
(i) the member's highest average salary, and
(ii) 1/12 of the year's maximum pensionable earnings for the calendar year immediately before the calendar year of the effective date of the pension
multiplied by the number of years of pensionable service accrued on and after January 1, 1966 that are not judicial service;
(f) 2% of the excess of the member's highest average salary over the amount determined under paragraph (e) (ii), multiplied by the number of years of pensionable service accrued on and after January 1, 1966 that are not judicial service;
(g) an amount, payable until the earlier of the member reaching age 65 and the death of the member, that is 0.65% of the lesser of
(i) the member's highest average salary, and
(ii) 1/12 of the year's maximum pensionable earnings for the calendar year immediately before the calendar year of the effective date of the pension
multiplied by the number of years of pensionable service accrued on and after January 1, 1966 that are not judicial service;
(h) 2% of the member's highest average salary multiplied by the number of years of pensionable service accrued before January 1, 1966 that are not judicial service.
(5) Despite subsection (4), in the case of an active member who, on or after January 1, 2001 but before March 1, 2002, ceases employment, the percentage in
(a) subsection (4) (b) is deemed to be 2.3%,
(b) subsection (4) (d) is deemed to be 0.7%,
(c) subsection (4) (e) is deemed to be 1.3%, and
(d) subsection (4) (g) is deemed to be 0.7%.
(6) The pension determined under this section must not exceed 70% of the member's highest average salary.
22 (1) An active member, or a member referred to in section 19 (1), who, on or after January 1, 2001, ceases employment is, on application, entitled to a reduced pension if the member meets the criteria for a reduced pension as specified in the pension plan rules.
(2) A member entitled to a reduced pension under subsection (1) is entitled to receive a pension calculated in accordance with section 21 but reduced by 5% as follows:
(a) if the member has 2 or more years of contributory service, for each year of age by which the member's age is less than age 60, and the percentage must be prorated by fractions of years;
(b) if the member has reached age 60 while an active member and has less than 2 years of contributory service, for each year of age by which the member's age is less than age 65, and the percentage must be prorated by fractions of years.
23 (1) Instead of the pension options provided by the pension plan rules, a pension
(a) to which a member is entitled under section 20 (1) or 22 (1), and
(b) that is calculated under section 21 or 22 (2)
must be paid in accordance with this section.
(2) If the member does not have a spouse at the time the payment of the pension begins, the pension to which the member is entitled is a single life guaranteed, payable for the longer of
(a) the life of the member, and
(b) a term of 10 years.
(3) Despite subsection (2), a member who is entitled to a pension payable in accordance with subsection (2) may elect to be paid his or her pension as a single life guaranteed, payable for the longer of
(a) the life of the member, and
(b) a term of 15 years,
but the amount of the pension must be adjusted to the actuarial equivalent of the pension otherwise payable in accordance with subsection (2).
(4) Subject to subsections (5) to (7), if the member has a spouse at the time the payment of the pension begins, the pension to which the member is entitled is a joint life and last survivor, payable for
(a) the life of the member, and
(b) the life of the surviving spouse,
but the pension payable to the surviving spouse is reduced, on the death of the member, to 60% of the pension to which the member was entitled.
(5) If the spouse waives, in writing by completion of a form specified by the plan administrative agent, the entitlement that the pension be paid on the joint life and last survivor basis as provided under subsection (4), or there is filed with the plan administrative agent a written agreement or court order made under Part 5 or 6 of the Family Relations Act with the same effect, the pension to which the member is entitled is payable in accordance with subsection (2).
(6) If the spouse
(a) was the spouse of the member at the time the member ceased to hold office, and
(b) is more than 10 years younger than the member,
the amount of the pension payable in accordance with subsection (4) must be adjusted to the actuarial equivalent of the pension otherwise payable if the spouse were 10 years younger than the member.
(7) If the spouse was not the spouse of the member on the date the member ceased to hold office, the amount of the pension payable on the joint life and last survivor basis as provided under subsection (4) must be adjusted to the actuarial equivalent of the pension otherwise payable in accordance with subsection (2).
(8) Despite subsection (4), a member may elect to have his or her pension paid as a joint life and last survivor, payable for
(a) the life of the member, and
(b) the life of the surviving spouse, without reduction on the death of the member,
but the amount of the pension must be adjusted to the actuarial equivalent of the pension otherwise payable in accordance with subsection (4).
(9) If payment of a pension payable in accordance with subsection (4) or (8) ceases, the last survivor's personal representative must be paid any amount by which the refund value of the member contributions exceeds the total of the pension payments made.
24 If an active member applies, after January 1, 2001, to have judicial service recognized in accordance with the provisions of the pension plan rules respecting the purchase of service, reinstatement, arrears and leaves of absence, the references to the employee and employer contribution rates in the pension plan rules must be read as references to the contribution rates specified in this Act when calculating the cost of the purchase.
25 (1) Despite section 18, a part time judge is not entitled to make contributions or have contributions made on his or her behalf to the Public Service Pension Plan in respect of service as a part time judge.
(2) A part time judge is, on the date that the judge's full time service ceases, entitled to receive his or her pension under the Public Service Pension Plan in accordance with this Part and the pension plan rules, and the cessation of full time service is deemed to be a termination of the judge's employment but only for the purposes of those pension plan rules.
(3) Service as a part time judge does not, for any purpose, count as contributory service or pensionable service.
26 (1) Despite section 6 (3) and (4), in respect of a recommendation of the commission formed on or before March 1, 2004, the judges are entitled to receive the remuneration, allowances and benefits
(a) proposed by the recommendation, or
(b) if the Legislative Assembly resolves to reject that recommendation, set by the resolution under section 6 (2) (b)
beginning on January 1, 2004.
(2) Despite section 6 (3) and (4), in respect of a recommendation of the commission formed on or before March 1, 2004, the judicial justices are entitled to receive the remuneration, allowances and benefits
(a) proposed by the recommendation, or
(b) if the Legislative Assembly resolves to reject that recommendation, set by the resolution under section 6 (2) (b)
beginning on January 1, 2005.
27 The disability benefit plan and annual vacation leave entitlement, existing immediately before this section comes into force, for judges and judicial justices are continued.
28 The Public Service Pension Plan continues to apply to a judicial justice to whom the Public Service Pension Plan applied immediately before this section came into force.
Provincial Court Act
29 Section 1 of the Provincial Court Act, R.S.B.C. 1996, c. 379, is amended by striking out the definitions of "pension plan rules", "Public Service Pension Plan" and "Public Service Pension Plan Joint Trust Agreement".
30 Sections 9, 9.1 (7) to (10) and (12), 12, 13, 15 to 16, 19 to 19.8, 32 (2) to (5) and (7) and 32.1 are repealed.
31 Section 14 is amended
(a) in subsection (1) by striking out "and section 15", and
(b) in subsection (1.1) by striking out "of this section and sections 9.1 and 15".
This Bill moves the compensation provisions for judges and judicial justices from the Provincial Court Act into its own Act. This Bill also modifies the process by which compensation is determined by
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