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Legislative Assembly of New Brunswick
Status of Legislation - First Reading Bill
An Act to Amend the Provincial Court Act
 
Legislature :
54
Session :
5
Bill No. :
50
Member :
Hon. Green
First Reading :
2003-3-26
Second Reading :
2003-3-27
Committee of the Whole :
2003-4-4
Amended :
Third Reading :
2003-4-8
Royal Assent :
2003-4-11
Download PDF :
  Bill 50         
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Text of Bill :
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:



1                           The Provincial Court Act, chapter P-21 of the Revised Statutes, 1973, is amended by adding after section 4.2 the following:



4.21(1)          A judge who meets the criteria in subsection (2) and who wishes to perform reduced judicial duties may give three months notice in writing to the Minister electing supernumerary status.



4.21(2)          The criteria are that the judge



(a)               is an active judge as defined in the Provincial Court Judges' Pension Act,



(b)               was appointed as a judge on or before April 2, 2002, and



(c)                either



(i)         is at least sixty years old, having been a judge for at least twenty-five years, or



(ii)       is at least sixty-five years old, having been a judge for at least fifteen years.



4.21(3)                              Notice may be given under subsection (1) before the time referred to in subparagraph (2)(c)(i) or (ii), to be effective on or after that date.



4.21(4)          The chief judge and the associate chief judge may elect supernumerary status if they resign their appointment as chief judge or associate chief judge before the election takes effect.



4.21(5)          A judge who elects supernumerary status



(a)                      thereby undertakes to perform judicial duties, as assigned by the chief judge, on up to one hundred days per calendar year, and



(b)               may agree to perform judicial duties on additional days.



4.21(6)          If a judge's election takes effect later than the beginning of a calendar year, or if a judge who has elected supernumerary status retires or resigns before a calendar year ends, the undertaking under paragraph (5)(a) shall be reduced proportionately.



4.21(7)                              Subject to subsections (8), (9) and (10), the salary of a judge who has elected supernumerary status continues to be the salary of a judge appointed under subsection 2(1).



4.21(8)                              Subject to subsections (9) and (10), if a judge who has elected supernumerary status remains in office after the end of the year in which he or she becomes sixty-nine and is receiving an annuity under this Act or an annual pension under the Provincial Court Judges' Pension Act, the judge's salary shall be forty percent of the salary of a judge appointed under subsection 2(1).



4.21(9)                              Subject to subsection (10), if the annual pension referred to in subsection (8), combined with any supplementary allowance or payment payable under Part IV of the Provincial Court Judges' Pension Act, exceeds sixty percent of the salary of a judge appointed under subsection 2(1), the salary of a judge who has elected supernumerary status shall be the amount that, when combined with the annual pension and any supplementary allowance and payment, produces a total equal to the salary of a judge appointed under subsection 2(1).



4.21(10)       If the annual pension or supplementary allowance or payment referred to in subsection (9) has been reduced by the operation of section 11, 12 or 26 of the Provincial Court Judges' Pension Act, and if, unless so reduced, their combined amount would have exceeded sixty percent of the salary of a judge appointed under subsection 2(1), the judge's salary shall be calculated under subsection (9) by reference to the amount of the annual pension and supplementary allowance and payment that would have been paid if the reduction had not occurred.



2                              Section 4.3 of the Act is repealed.



3                              Section 4.4 of the Act is repealed.



4                           The Act is amended by adding after section 7 the following:



7.1(1)             The Lieutenant-Governor in Council shall establish a panel composed of judges who have retired or resigned in accordance with this Act, who have not reached the age of seventy-five years and who have given notice to the chief judge of their intention to be available for judicial duties.



7.1(2)                              Where, in the opinion of the chief judge, additional judges are urgently required to conduct the business of the court, the chief judge may select a person from the panel established under subsection (1) to act as, and to exercise the powers of, a judge to conduct the business of the court.



7.1(3)             The chief judge shall not select any additional judges under subsection (2) if the remuneration of the judges would have the effect of exceeding for the fiscal year an amount that is equal to five per cent of the salaries of twenty-six judges appointed under subsection 2(1), including the salaries of the chief judge and the associate chief judge.



7.1(4)             A person selected under subsection (2) is deemed to be a judge and has all the powers, authority and jurisdiction of a judge appointed under subsection 2(1).



7.1(5)                              Sections 5, 19 and 22 apply with the necessary modifications to a person who is selected under subsection (2).



7.1(6)             A person who is selected under subsection (2) shall be paid a daily rate of 1/251 of a judge's salary, other than the chief judge's or associate chief judge's salary, and shall be paid one-half the daily rate for one-half day's work or less.



7.1(7)             A person who is selected under subsection (2) shall receive such reimbursement for expenses in respect of the person's services as a judge as are prescribed by regulation.



7.2(1)             The Lieutenant-Governor in Council shall not remove a person from the panel established under subsection 7.1(1) except



(a)               upon the written request of the person to the chief judge,



(b)               upon the person reaching the age of seventy-five years,



(c)                upon the recommendation of the Judicial Council, or



(d)               upon the death of the person.



7.2(2)                              Where a person submits a written request to be removed from the panel established under subsection 7.1(1), the person is deemed to be removed from the panel on the later of the date specified in the request or the date on which the chief judge receives the request.



7.2(3)                              Sections 6 to 6.13 apply with the necessary modifications to a person who is on the panel established under subsection 7.1(1).



7.3                      A judge selected under subsection 7.1(2) is deemed to have complied with section 12 before exercising his or her powers of office under section 7.1.



5                              Section 10 of the Act is amended by adding after subsection (1.1) the following:



10(1.2)          When a judge has elected supernumerary status any designations made in relation to that judge under paragraph (1)(e) or subsection (1.1) lapse.



6                              Subsection 12(4) of the Act is repealed.



7                              Section 13 of the Act is amended



(a)               by repealing subsection (1) and substituting the following:



13(1)               A judge, other than a judge who has elected supernumerary status and a person who is on the panel established under subsection 7.1(1), shall devote his or her whole time to the performance of his or her duties as a judge.



(b)               in subsection (1.1) by striking out "subsection 4.3(1)" and substituting "subsection 7.1(1)".



8                              Section 15 of the Act is amended by adding after subsection (9) the following:



15(10)                              Where a judge has elected supernumerary status under section 4.21 and has also elected under subsection 37(3.1) of the Provincial Court Judges' Pension Act to be paid the benefits to which he or she is entitled under this Act while remaining in office after the end of the thirty-first day of December of the year in which he or she becomes sixty-nine,



(a)               the judge is deemed for the purposes of this section to have resigned or retired at the end of that day, and



(b)               the actual date on which the judge subsequently resigns or retires is immaterial for the purposes of this section.



9                              Section 23 of the Act is amended



(a)               in subsection (1)



(i)         in paragraph (b), by striking out "subsection 4.3(2)" and substituting "subsection 7.1(2)";



(ii)       in paragraph (g.1), by striking out "subsection 4.3(2)" and substituting "subsection 7.1(2)";



(iii)    in paragraph (j.01), by striking out "subsection 4.3(2)" and substituting "subsection 7.1(2)";



(b)               by adding after subsection (1.1) the following:



23(1.2)          A regulation made under paragraph (g.1) may be made retroactive to any date on or after the date that this subsection came into force.



10(1)                              Section 2 of An Act to Amend the Provincial Court Act, chapter 22 of the Acts of New Brunswick 1998, is repealed.



10(2)               The Act is amended by adding after section 16 the following:



16.1                              Section 7.2 of the Act is amended



(a)               by repealing paragraph (1)(c) and substituting the following:



(c)                upon the recommendation of a hearing committee under paragraph 22.55(2)(f), or



(b)               by repealing subsection (3) and substituting the following:



7.2(3)             Part III.1 of the Act applies with the necessary modifications to a person who is on a panel established under subsection 7.1(1).



11(1)                              Section 1 of An Act to Amend the Provincial Court Act, chapter 37 of the Acts of New Brunswick, 2002, is repealed.



11(2)                              Section 3 of the Act is repealed.



11(3)                              Section 4 of the Act is repealed.



11(4)                              Section 5 of the Act is repealed.



12(1)                              Section 6 of New Brunswick Regulation 84-104 under the Provincial Court Act is amended by striking out "subsection 4.3(2)" and substituting "subsection 7.1(2)".



12(2)                              Subsection 10(2) of the Regulation is amended by striking out "subsection 4.3(2)" and substituting "subsection 7.1(2)".



12(3)               The heading preceding section 12.1 of the Regulation is amended by striking out "SUBSECTION 4.3(2)" and substituting "SUBSECTION 7.1(2)".



12(4)                              Section 12.1 of the Regulation is amended



(a)               in subsection (1) by striking out "subsection 4.3(2)" and substituting "subsection 7.1(2)";



(b)               in subsection (2) by striking out "subsection 4.3(2)" and substituting "subsection 7.1(2)";



12(5)                              Section 15 of the Regulation is amended by adding after subsection (5) the following:



15(6)                              Subsections (1) to (4) do not apply to a judge who has elected supernumerary status under section 4.21 of the Act.



15(7)               When a judge elects supernumerary status any cash settlement or compensation under subsection (5) shall be calculated and paid as though the judge had retired at the time the election of supernumerary status takes effect.



12(6)                              Section 16 of the Regulation is amended by adding after subsection (6) the following:



16(7)               This section does not apply to a judge who has elected supernumerary status under section 4.21 of the Act.



12(7)                              Section 18.1 of the Regulation is amended by adding after subsection (4) the following:



18.1(5)          This section does not apply to a judge who has elected supernumerary status under section 4.21 of the Act.



13(1)                              Section 18 of the Provincial Court Judges' Pension Act, chapter P-21.1 of the Acts of New Brunswick, 2000, is amended by adding after subsection (1) the following:



18(1.1)          A judge who has elected supernumerary status under section 4.21 of the Provincial Court Act and who remains in office after the thirty-first day of December of the year in which he or she becomes sixty-nine is also entitled to be paid the supplementary allowance described in subsection (1).



13(2)                              Section 22 of the Act is amended by adding after subsection (2) the following:



22(3)               This section does not apply to an active judge who has elected supernumerary status under section 4.21 of the Provincial Court Act if that election takes effect before the payment of any annual pension referred to in subsection (1) occurs.



22(4)               If the election of supernumerary status takes effect after the payment of any annual pension referred to in subsection (1) has occurred, this section only applies in relation to the payments of annual pension that occur before the election takes effect.



13(3)                              Paragraph 29(2)(c) of the Act is amended by striking out "subsection 4.3(2)" and substituting "subsection 7.1(2)".



13(4)                              Section 37 of the Act is amended by adding after subsection (3) the following:



37(3.1)          A judge to whom subsection (3) applies may, if he or she has elected supernumerary status under section 4.21 of the Provincial Court Act and proposes to remain in office after the thirty-first day of December of the year in which he or she becomes sixty-nine, elect to be paid the benefits to which he or she is entitled under the Provincial Court Act rather than the benefits to which he or she is entitled under this Act.



37(3.2)          An election under subsection (3.1) shall be made by delivering to the Minister a notice of election, which



(a)               shall be in writing,



(b)               shall be signed by the judge,



(c)                shall be delivered to the Minister no later than the thirtieth day of September of the year in which the judge becomes sixty-nine, and



(d)               is irrevocable.



37(3.3)          If an election in accordance with subsections (3.1) and (3.2) is made, the judge is not subsequently deemed, by virtue of the combined effect of subsection 5(2) and subsection (5), to make an election to be paid benefits only under this Act.



14                        A person who is on a panel established under section 4.3 of the Provincial Court Act immediately before the commencement of this amending Act shall be deemed to be on a panel established under section 7.1 as enacted by section 4 of this amending Act, until the person is removed from the panel in accordance with the provisions of the Provincial Court Act.



EXPLANATORY NOTES



Section 1



New provision.



Section 2



The existing provision is as follows:



4.3(1)             The Lieutenant-Governor in Council shall establish a panel composed of judges who have retired or resigned in accordance with this Act, who have not reached the age of seventy-five years and who have given notice to the chief judge of their intention to be available for judicial duties under subsection (2).



4.3(2)                              Where, in the opinion of the chief judge, additional judges are urgently required to conduct the business of the court, the chief judge may select a person from the panel established under subsection (1) to act as, and to exercise the powers of, a judge to conduct the business of the court.



4.3(3)             The chief judge shall not select any additional judges under subsection (2) if the remuneration of the judges would have the effect of exceeding for the fiscal year an amount that is equal to five per cent of the salaries of twenty-four judges appointed under subsection 2(1), including the salaries of the chief judge and the associate chief judge.



4.3(4)             A person selected under subsection (2) is deemed to be a judge and has all the powers, authority and jurisdiction of a judge appointed under subsection 2(1).



4.3(5)                              Sections 5, 19 and 22 apply with the necessary modifications to a person who is selected under subsection (2).



4.3(6)             A person who is selected under subsection (2) shall be paid a per diem rate of 1/251 of a judge's salary, other than the chief judge's or associate chief judge's salary, and shall be paid one-half the per diem rate for one-half day's work or less.



4.3(7)             A person who is selected under subsection (2) shall receive such reimbursement for expenses in respect of the person's services as a judge as are prescribed by regulation.



Section 3



The existing provision is as follows:



4.4(1)             The Lieutenant-Governor in Council shall not remove a person from the panel established under subsection 4.3(1) except



(a)               upon the written request of the person to the chief judge,



(b)               upon the person reaching the age of seventy-five years,



(c)                upon the recommendation of the Judicial Council, or



(d)               upon the death of the person.



4.4(2)                              Where a person submits a written request to be removed from the panel established under subsection 4.3(1), the person is deemed to be removed from the panel on the later of the date of the receipt of the written request by the chief judge and the date, if any, specified in the request.



4.4(3)                              Sections 6 to 6.13 apply with the necessary modifications to a person who is on the panel established under subsection 4.3(1).



Section 4



New provisions.



Section 5



New provision.



Section 6



Consequential amendment.



Section 7



(a)               The existing provision is as follows:



13(1)               A judge, other than a person who is on the panel established under subsection 4.3(1), shall devote his or her whole time to the performance of his or her duties as a judge.



(b)                      Consequential amendment.



Section 8



New provision.



Section 9



(a)                      Consequential amendments.



(b)               New provision.



Section 10



Consequential amendments.



Section 11



Consequential amendments.



Section 12



(1), (2), (3) and (4)                              Consequential amendments.



(5), (6) and (7)                              New provisions.



Section 13



(1) and (2)   New provisions.



(3)                              Consequential amendment.



(4)                      New provision.



Section 14



Transitional provision.

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Legend
* Private Bill
** Bill referred to Standing Committee on Law Amendments
+ Private Member's Public Bill
++ Motion for second reading defeated
+++ Debate at second reading adjourned
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