Associate Judges (Federal Court) Regulations: SOR/2023-83

Canada Gazette, Part II, Volume 157, Number 10

Registration
SOR/2023-83 May 1, 2023

FEDERAL COURTS ACT

P.C. 2023-372 April 28, 2023

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, makes the annexed Associate Judges (Federal Court) Regulations under subsections 12(2)footnote a and (5)footnote a of the Federal Courts Act footnote b.

Associate Judges (Federal Court) Regulations

Number of associate judges

1 For the purposes of subsection 12(2) of the Federal Courts Act, the number of associate judges that may be appointed under subsection 12(1) of that Act is fixed at nine.

Workload — supernumerary associate judges

2 For the purposes of subsection 12(5) of the Federal Courts Act, the workload of a supernumerary associate judge is fixed at a minimum of 50% of the workload of an associate judge.

Coming into force

3 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the regulations.)

Issues

The Budget Implementation Act, 2022, No. 1 (the BIA 2022) received royal assent on June 23, 2022. The BIA 2022 amended the Federal Courts Act and the Tax Court of Canada Act to authorize the Governor in Council to, by regulation,

Legislation does not establish the number of associate judges that may be appointed to the FC or to the TCC, and this absence results in a lack of transparency regarding a court’s overall judicial resources. Further, as associate judges’ salaries are paid out of the Consolidated Revenue Fund (CRF), the lack of a fixed number of associate judges could result in an unpredictable draw on the CRF.

Legislation does not establish the workload of a supernumerary associate judge, which is needed to contribute to greater certainty and understanding of the role and value of supernumerary associate judges.

Background

Associate judges are junior judicial officers appointed by the Governor in Council to the FC and the TCC. At the FC, associate judges perform a range of functions, including case management duties and the hearing of interlocutory matters. The FC has nine associate judges. The BIA 2022 established the office of associate judge of the TCC and Budget 2022 announced funding for two associate judges for the TCC; however, associate judges have not yet been appointed to that Court.

Before September 23, 2022, associate judges of the FC and the TCC were called “prothonotaries.” The BIA 2022 included amendments to change the title “prothonotary” to “associate judge.” On September 23, 2022, an Order in Council brought into force the amendments that changed the title “prothonotary” to “associate judge.” This Regulatory Impact Analysis Statement uses the terms “prothonotary” and “associate judge” interchangeably, based on context.

The BIA 2022 also established the office of supernumerary associate judge of the FC and the TCC. When an associate judge meets certain conditions related to age and years in office, they can elect supernumerary status. A supernumerary associate judge is an associate judge who has made this election. Supernumerary associate judges perform the same functions and receive the same salary as non-supernumerary associate judges, but have a reduced workload. This mirrors arrangements in place for superior court judges, which Parliament first introduced in 1971.

Objective

The new regulations fix the number of associate judges that may be appointed to the FC and the TCC. This will guard against an unlimited draw on the CRF and increase public transparency as to the number of judicial resources (including associate judges) funded for the FC and TCC.

The new regulations also fix the workload of a supernumerary associate judge. This will reduce uncertainty around the role and value of supernumerary associate judges.

Description

The Associate Judges (Federal Court) Regulations, made under the Federal Courts Act, establish that nine associate judges may be appointed to the FC.

The Associate Judges (Tax Court of Canada) Regulations, made under the Tax Court of Canada Act, establish that two associate judges may be appointed to the TCC.

Both new regulations establish that the workload of a supernumerary associate judge is at least 50% of the workload of a non-supernumerary judge.

Regulatory development

Consultation

The Chief Justice of the Federal Court and representatives of the associate judges of the Federal Court have been consulted on the new regulations and have expressed support.

The Department of Justice Canada consulted the Office of the Commissioner for Federal Judicial Affairs Canada (CFJA) on the new regulations through meetings and correspondence. The CFJA is supportive of the regulations.

The regulations were not prepublished in the Canada Gazette, Part I, because the regulations do not impose new restrictions or burdens on businesses or individuals. Further, consultations with the judiciary and the CFJA have already taken place.

Modern treaty obligations and Indigenous engagement and consultation

There are no modern treaty obligations relevant to these regulations, and there was no specific engagement or consultation with Indigenous peoples.

Instrument choice

Two instruments were considered for fixing the number of associate judges that may be appointed and fixing the workload of a supernumerary associate judge: statute and regulation. Regulation was selected because the changes are narrow, technical and non-controversial. Regulation was also selected because the process for amending regulations is simpler than the process for amending statutes, and the provisions setting out the number of associate judges that may be appointed may need to be amended in the future to address changing workload pressures at the FC and TCC. The baseline scenario (no action) would leave the issues unresolved.

Regulatory analysis

Benefits and costs

Costs

There may be minor costs associated with the new regulations, arising from updating the CFJA website and updating the application form for candidates seeking appointment as associate judges.

The provisions in the new regulations that fix the number of associate judges that may be appointed will not result in any new costs because these provisions do not fund new associate judge positions or result in the appointment of new associate judges. Rather, these provisions simply place limits on the number of associate judges that may be appointed. These limits correspond to the number of associate judge positions that are already funded: nine at the FC and two at the TCC.

The provisions in the new regulations that fix the workload of a supernumerary associate judge will not result in any new costs because these provisions do not affect the salaries, benefits or other costs associated with supernumerary associate judges. A supernumerary associate judge’s workload is set by their Chief Justice. The costs associated with a supernumerary associate judge are the same regardless of whether the associate judge’s workload is reflected in regulation and regardless of what that workload is. The workload provisions in these new regulations will provide clarity and transparency without resulting in new costs.

Benefits

The new regulations will increase transparency regarding each court’s judicial complement as well as predictability and certainty around the impact of associate judge salaries on the CRF.

The new regulations will also result in greater transparency around the role and number of supernumerary associate judges at the FC and the TCC. Further, the new regulations will improve public understanding of the role and value of supernumerary associate judges, which will reinforce public confidence in the justice system.

While these new regulations do not create the office of supernumerary associate judges or affect associate judges’ eligibility to elect supernumerary status, the existence of a supernumerary office for associate judges carries several benefits for courts and the government. The office of supernumerary associate judge allows the FC and TCC to retain experienced judicial officers, who may otherwise choose to retire and begin receiving an annuity. Supernumerary associate judges can deal with more complex matters while providing continuity to the court, mentoring to new associate judges, and additional flexibility in scheduling to chief justices. The office of supernumerary associate judge also provides benefits in terms of court resources: supernumerary associate judges continue to contribute to the court’s workload, while new associate judges can be appointed into the vacancies created when associate judges elect supernumerary status. Further, supernumerary status is cost-effective. Both salaries and annuities are payable directly out of the CRF. A retired associate judge receives an annuity equal to two thirds of their salary on retirement and does not work for their former court. A supernumerary associate judge receives the full associate judge salary while continuing to carry a workload of at least 50% of the workload of a non-supernumerary associate judge. Therefore, a supernumerary associate judge receives one third more salary than a retired associate judge, but completes at least 50% more work for their court.

Small business lens

Analysis under the small business lens concluded that the new regulations will not impact Canadian small businesses.

One-for-one rule

The one-for-one rule does not apply to this initiative because the new regulations do not impose new administrative burdens on business.

Regulatory cooperation and alignment

The new regulations are not related to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

Gender-based analysis plus (GBA+) assessments were completed for the policy decisions related to these regulations, including for the Government Response to the Report of the 2020 Judicial Compensation and Benefits Commission and for the portion of the BIA 2022 that amended the Federal Courts Act and Tax Court of Canada Act to give the Governor in Council authority to make these regulations.

The regulations, which apply to associate judges, will have a differential impact based on education because associate judges and individuals eligible to be appointed as associate judges are highly educated. The regulations will also have a differential impact based on age because the regulations contain provisions on the workload of a supernumerary associate judge and age is a factor in eligibility to elect supernumerary status.

No other GBA+ impacts have been identified for these regulations.

Implementation, compliance and enforcement, and service standards

Implementation

These regulations come into force on the day on which they are registered.

The Governor in Council will implement the provisions on the number of associate judges that may be appointed by appointing no more than nine associate judges to the FC and two associate judges to the TCC. The Chief Justices of the FC and the TCC will implement the provisions on the workload of supernumerary associate judges by assigning work to the supernumerary associate judges of their courts. The CFJA may update their website and the application form for associate judges’ positions to state that the workload of a supernumerary associate judge is at least 50% of the workload of a non-supernumerary associate judge.

The Chief Justices of the FC and the TCC, and the CFJA, have been informed of the coming into force of these regulations.

Contact

Judicial Affairs Section
Department of Justice Canada
275 Sparks Street
Ottawa, Ontario
K1A 0H1
Email: jus.jas-saj@justice.gc.ca